THE PROPOSED GENERAL DATA PROTECTION REGULATION: SUGGESTED AMENDMENTS TO THE DEFINITION OF PERSONAL DATA

by Douwe Korff, Professor of International Law

(and FREE Group Member)

  1. Background

In a recent judgment (discussed previously on this blog) the third chamber of the CJEU has ruled that the concept of “personal data” in the 1995 data protection (DP) directive is limited to data directly relating to a person, and does not include legal analyses in the file on the person, on which the state (NL) relied in taking its decisions in relation to that person (Joined Cases C-141/12 and C-372/12). I believe the Court’s restriction of the concept is wrong and contrary to the intended purpose of data protection; and should be corrected in the new General Data Protection Regulation.

First of all, the Court based itself on the, in my opinion erroneous, view that the 1995 EC DP Directive was solely aimed at protecting privacy. In particular, it felt that the right of data subjects to access to their personal data should not extend to a legal analysis of their case, contained in a file on them, because (in the Court’s view) such an analyses “is not in itself liable to be the subject of a check of its accuracy by [a data subject]”, and data subjects should not be able to use data protection to seek a rectification of such an analysis (cf. para. 44 of the judgment).

Secondly, the Court also relied on the fact that data of the kind at issue in the joined cases was administrative data held by a public authority and, drawing a parallel with EU regulations on privacy and access to documents, held that access to the legal analysis should be addressed under the latter rules rather than the former. This failed to take into account the fact that the EU rules referred to apply only to public (i.e., EU) bodies, whereas the 1995 DP Directive applies also, and in indeed especially, to private-sector bodies (in particular companies) that are not subject to public-sector rules on access to administrative data.

The Court’s judgment, in sum, seriously limits the concept of personal data and the right of access to one’s personal data, and thus seriously limits the application of the entire EU data protection regime. It leaves individuals with seriously less rights in respect of data on them (or relating to them, or used to take decisions on them, or that affect them) than was previously thought.

Specifically,the judgment runs directly counter to the authoritative 2007 Article 29 Working Party (WP) Opinion on the concept of personal data (Opinion 4/2007, WP136, of 20 June 2007). This first of all noted that the purpose of data protection is not limited to a narrow concept of privacy – as is indeed also clear from the fact that data protection is guaranteed in the Charter of Fundamental Rights (CFR) as a separate right, sui generis, from the right to private life/privacy (data protection is guaranteed in Article 8 CFR; Privacy in Article 7 CFR). Astonishingly, given that the WP29 is expressly charged with providing guidance on the interpretation and application of the 1995 DP Directive, the Court did not even mention either the Working Party or this specific opinion.

In the opinion, the Working Party discussed four elements of the definition, from which it deduces the appropriate criteria for determining whether data should be regarded as personal data within the meaning of the directive. They can be paraphrased as follows:

The first element: “any information”:

The WP concludes that these words indicate that the concept of personal data should be interpreted broadly, and not limited to matters relating to a person’s private and family life stricto senso (as has wrongly been done in the UK under the Durant decision, and as appears to also underpin the Court’s judgment). It also covers information in any form, including documents, photographs, videos, audio and biometric data, body tissues and DNA.

The second element: “relating to”:

In general terms, information can be considered to “relate” to an individual when it is about that individual. However, data about “things” can also be personal data, if the object in question is closely associated with a specific individual (e.g., mobile phone location data). This is of increasing importance in the era of the Internet of Things. Important in relation to the CJEU judgment, the WP29 adds the following consideration, with reference to an earlier opinion, on radio frequency identification (RFID) tags, WP105 of 19 January 2005 (original italics and bold; underlining added):

In the context of discussions on the data protection issues raised by RFID tags, the Working Party noted that “data relates to an individual if it refers to the identity, characteristics or behaviour of an individual or if such information is used to determine or influence the way in which that person is treated or evaluated.“…

[I]n order to consider that the data “relate” to an individual, a “content” element OR a “purpose” element OR a “result” element should be present.

The “content” element is present in those cases where – corresponding to the most obvious and common understanding in a society of the word “relate” – information is given about a particular person, regardless of any purpose on the side of the data controller or of a third party, or the impact of that information on the data subject. (…)

Also a “purpose” element can be responsible for the fact that information “relates” to a certain person. That “purpose” element can be considered to exist when the data are used or are likely to be used, taking into account all the circumstances surrounding the precise case, with the purpose to evaluate, treat in a certain way or influence the status or behaviour of an individual. (…)

A third kind of ‘relating’ to specific persons arises when a “result” element is present. Despite the absence of a “content” or “purpose” element, data can be considered to “relate” to an individual because their use is likely to have an impact on a certain person’s rights and interests, taking into account all the circumstances surrounding the precise case. It should be noted that it is not necessary that the potential result be a major impact. It is sufficient if the individual may be treated differently from other persons as a result of the processing of such data.

These three elements (content, purpose, result) must be considered as alternative conditions, and not as cumulative ones. In particular, where the content element is present, there is no need for the other elements to be present to consider that the information relates to the individual. A corollary of this is that the same piece of information may relate to different individuals at the same time, depending on what element is present with regard to each one. The same information may relate to individual Titius because of the “content” element (the data is clearly about Titius), AND to Gaius because of the “purpose” element (it will be used in order to treat Gaius in a certain way) AND to Sempronius because of the “result” element (it is likely to have an impact on the rights and interests of Sempronius). This means also that it is not necessary that the data “focuses” on someone in order to consider that it relates to him. …

The “legal analyses” that the CJEU ruled were not personal data are clearly covered by the above: they are the very basis on which the data subjects in questions (asylum seekers) were “treated” and “evaluated”. To apply the reasoning of the Working Party: they determine whether Titius should be treated the same way as Gaius or not; and they may also have an impact on the rights and interests of Sempronius.

This is also crucially important in relation to “profiles”. Under the judgment, states and companies could argue that individuals should also not have a right to challenge the accuracy of a profile, any more than the accuracy of a legal analysis; and that, indeed, they are not entitled to be provided on demand with the elements used in the creation of a profile. After all, a profile, by definition, is also based on an abstract analysis of facts and assumptions not specifically related to the data subject – although both are of course used in relation to the data subject, and determine the way he or she is treated.

In my opinion, the above is the most dangerous limitation flowing from the Court’s judgment.

The third element: “identified or identifiable”:

Although this issue did not arise in the CJEU cases, it is still crucial, in particular in relation to the ever-increasing and ever-more-widely-available massive sets of “Big Data”. In the opinion of the WP, the core issue is whether a person is, or can be, singled out from the data, whether by name or not. A name sometimes suffices for this, but often not, while a photograph or an identity number often does allow such singling out even if no other details of the person are known. In relation to pseudonymised or supposedly anonymised data, the WP concluded (with reference to the recitals in the 1995 directive) that the central issue is whether the person can be identified (singled out), whether by the data controller or by any other person, “taking account of all the means likely reasonably to be used either by the controller or by any other person to identify that individual.

The fourth element: “natural person”:

In principle, personal data are data relating to identified or identifiable living individuals. There are some issues relating to data on deceased persons and unborn children: these can often still (also) relate to living individuals, in the way discussed above, and would then still be personal data in relation to those latter individuals. Data on legal entities can sometimes also, similarly, relate to living individuals associated with those entities. Also, in some contexts some data protection rights are expressly extended to legal persons (companies etc.) per se, in particular under the so-called “e-Privacy Directive”. But that is a special case. This too, however, was not an issue relevant to the CJEU judgment.

Until the CJEU judgment, it could be assumed that as long as the General Data Protection Regulation used the same definition of personal data as the 1995 DP Directive, the above elements and criteria could simply be read into the new instrument.

However, the judgment could result in the definition in the GDPR being read in accordance with the Court’s restricted views, rather than in line with the WP29 guidance.

In my opinion, if the EU wishes to retain a strong European data protection framework, as is often asserted, it is essential that the GDPR expressly (if of course briefly) endorses the WP29 view of the issue, rather than the CJEU’s one.

Below, I suggest amendments to the definition of the concept of personal data in the GDPR that would achieve that (some further amendments should be made to the recitals).

  1. Proposed amendments to the GDPR

As can be seen from the Annexes, with the different definitions of personal data and data subject in the Commission text of the GDPR and in the amended version of the Regulation adopted by the EP (and with the corresponding definitions in the current 1995 DP Directive), the definitions all say in essence that:

‘personal data’ means any information relating to a data subject (with ‘data subject’ then defined as “an identified or identifiable natural person”), or:

‘personal data’ means any information relating to an identified or identifiable natural person which comes to the same thing (and is in accordance with the current directive).

The EP text adds clarification on when a person can be regarded as “identifiable”, on the lines of the views of the Article 29 Working Party (drawing on a recital in the current directive); and more specific provisions on “pseudonymous data” and “encrypted data”.

However, neither text adds clarification on the question of when data can be said to “relate” to a (natural, living) persons – which is the issue so badly dealt with in the CJEU judgment.

I propose that the definition of “personal data” in the GDPR be expanded to expressly clarify the question of when data can be said to “relate” to a person, by drawing on the guidance of the Article 29 Working Party set out above; and by also expressly clarifying that “profiles” always “relate” to any person to whom they may be applied. Specifically, I propose that an additional paragraph be added to Article 2(2), spelling out that:

“data relate to a person if they are about that person, or about an object linked to that person; or if the data are used or are likely to be used for the purpose of evaluating that person, or to treat that person in a certain way or influence the status or behaviour of that person; or if the use of the data is likely to have an impact on that person’s rights and interests. Profiles resulting from ‘profiling’ as defined in [Article 20 in the Commission text/Article 4(3a) of the EP text] by their nature relate to any person to whom they may be applied.”

The Annexes indicate more specifically how such an amendment could be incorporated into the current (Commission and EP) texts of the Regulation.

Annex I

PROPOSED AMENDMENTS TO ARTICLE 4 OF THE GENERAL DATA PROTECTION REGULATION:

(Added or amended text in bold)

The proposed amendments if applied to the Commission text:

(1)        ‘data subject’ means an identified natural person or a natural person who can be identified, directly or indirectly, by means reasonably likely to be used by the controller or by any other natural or legal person, in particular by reference to an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person;

(2)        ‘personal data’ means any information relating to a data subject;

(2a)      data relate to a person if they are about that person, or about an object linked to that person; or if the data are used or are likely to be used for the purpose of evaluating that person, or to treat that person in a certain way or influence the status or behaviour of that person; or if the use of the data is likely to have an impact on that person’s rights and interests. Profiles resulting from ‘profiling’ as defined in Article 20 by their nature relate to any person to whom they may be applied.

The proposed amendments if applied to the EP text:

(2)        ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’);

(2a)      an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, unique identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social or gender identity of that person;

(2b)     data relate to a person if they are about that person, or about an object linked to that person; or if the data are used or are likely to be used for the purpose of evaluating that person, or to treat that person in a certain way or influence the status or behaviour of that person; or if the use of the data is likely to have an impact on that person’s rights and interests. Profiles resulting from ‘profiling’ as defined in paragraph (3a) by their nature relate to any person to whom they may be applied.

(2c) ‘pseudonymous data’ means personal data that cannot be attributed to a specific data subject without the use of additional information, as long as such additional information is kept separately and subject to technical and organisational measures to ensure non-attribution;

(2d) ‘encrypted data’ means personal data, which through technological protection measures is rendered unintelligible to any person who is not authorised to access it;

NB: The actual Commission and EP texts are set out in Annex II

Annex II

The definition of “personal data” in the original Commission text of the GDPR and in the amended version of the Regulation adopted by the European Parliament:

Text proposed by the Commission Amendment
Definitions Definitions
For the purposes of this Regulation: For the purposes of this Regulation:
(1) ‘data subject’ means an identified natural person or a natural person who can be identified, directly or indirectly, by means reasonably likely to be used by the controller or by any other natural or legal person, in particular by reference to an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person;
(2) ‘personal data’ means any information relating to a data subject; (2) ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject‘); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, unique identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social or gender identity of that person;
(2a) ‘pseudonymous data’ means personal data that cannot be attributed to a specific data subject without the use of additional information, as long as such additional information is kept separately and subject to technical and organisational measures to ensure non-attribution;
(2b) ‘encrypted data’ means personal data, which through technological protection measures is rendered unintelligible to any person who is not authorised to access it;

Cf. the following definition in the current 1995 DP Directive:

(a) ‘personal data ‘shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;

Denmark and EU Justice and Home Affairs Law: Really Opting Back In?

Original published EU LAW ANALYSIS

by Steve Peers

On October 7th  the Danish Prime Minister made an announcement that Denmark would hold another referendum on EU matters in 2015. This was widely reported as a vote on whether Denmark would opt back in to EU Justice and Home Affairs (JHA) law. In fact, the government’s intention is to hold a vote on whether to replace a complete opt out with a selective opt-out. This blog post explains the detail of the issue, including a complete list of the measures which Denmark might opt back into if the Danish public approves the referendum proposal.

The Danish opt-out effectively dates back to the Danish referendum on the Maastricht Treaty in 1992. Following the initial Danish ‘no’ vote to that treaty, the EU’s Heads of State of Government adopted a Decision, which states that Denmark fully participates in EU JHA law. This was accompanied by a declaration stating that any transfer of powers to the European Community (as it then was) would be subject to a referendum in Denmark. This is generally regarded as the basis for Denmark’s opt-out on JHA matters.

This Decision is also often described as an opt-out on EU citizenship, although it is no such thing: it simply clarifies the relationship between Danish and EU citizenship. In fact, despite a widespread belief to the contrary, Denmark has no opt-out on EU citizenship at all. The JHA opt-out was formalised as a Protocol to the Treaties at the time of the Treaty of Amsterdam (in force 1999), and was then revised at the time of the Treaty of Lisbon (in force 2009). It currently appears as Protocol 22 to the Treaties.

In a nutshell, the legal position is as follows. Continue reading

Some questions to the would-be Commissioner for Better Regulation, Fundamental Rights and Rule of Law (Timmermans)

by Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be Commissioners for Better Regulation, Fundamental Rights and Rule of Law (Timmermans) will be questioned tomorrow by Members of the European Parliament (MEPs), to determine whether the EP should vote to confirm them in office. MEPs have already asked some written questions and the would-be Commissioner have replied. However, during the oral hearing will be an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments.
Rather strangely the hearing will not follow to the EP very detailed internal rules (of art.118 and Annex XVI (*) which require that hearing should take place before the Parliamentary committees Candidate Vice President Timmermans will instead be heard by the Conference of President of political Groups.

1.Rule of law / implementation of EU law
The confidence of all EU citizens and national authorities in the functioning of the rule of law in the Member States is vital to increase the mutual trust and to further develop the EU into “an area of freedom, security and justice without internal frontiers”.
In your written reply you strongly support the recent Commission proposal for a “common rule of law framework (COM(2014)158 as repeatedly advocated by the European Parliament (but criticized by the Council legal Service). However such an exercise risk which should cover all the EU member states, risk to be meaningless if the Commission does not strengthen the mechanisms which implement the principle of sincere cooperation with and between the MS. For instance there is no ground in the Treaty which justify confidential meetings between the Commission and the MS (even in the framework of the so called “EU Pilot mechanism”) when legal certainty on the exact scope of EU citizens rights and obligations are at stake.
As first steps to strengthen the rule of law would not then be appropriate :
– to update the way how the Commission on a daily basis debates with the Member states the implementation of EU legislation?
– make public the MS implementation plans as well as the table of correspondence between EU and national rules ?
– to implement, (five years after the Lisbon Treaty !), the art.70 mechanism on “objective and impartial evaluation of the implementation of the Union policies” in the FSJA by keeping informed the European and national parliaments ?
– to take stock every year of the ruling of the European Courts and of the measures taken at national level ?

2. Charter of Fundamental rights as “roadmap for the EU legislator ?
In a recent ruling the Court of Justice stroke down for the first time an EU Directive (the Data Retention Directive 2006/24) because “.., the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter. ” According to the CJEU the Directive “..does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter” and moreover “does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured…” In other terms from now on the Court of Justice will require a strict assessment of the proportionality and necessity of measures that constitute serious restrictions to fundamental rights, however legitimate the objectives pursued by the EU legislature.
On the basis of this landmark ruling do you not consider your priority to revise under the proportionality perspective the legislation falling in judicial and police cooperation in criminal matters adopted before the entry into force of the Charter and of the Treaty of Lisbon ?
Will you commit to develop a stronger and more transparent strategy to deal with infringements of EU law where the rights in the Charter are threatened by a Member State’s non-existent or incorrect implemenation of its EU law obligations?
Will not be sensible, taking in account your attachment to the REFIT exercise to review the legislation by establishing “sunset clauses” for measures limiting EU citizens rights? Moreover, by sticking on data protection aspects do you not consider that this ruling raise even bigger doubts on the compatibility with the proportionality principle of the EU-US agreements on PNR and TFTP and of the legislative proposals submitted by the Commission on the EU-PNR and the “Entry-Exit” (not to speak of the lack of compliance of the proposal on trusted traveller with the principle of non discrimination) ?  Continue reading

Some questions to the candidate High Representative for external relations (Federica Mogherini)

By Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be High Representative for the Common Foreign and Security Policy and Commission Vice President for external relations (Mogherini) will  questioned in the next two days by Members of the European Parliament (MEPs), to determine whether the EP should vote to confirm her in office. MEPs have already asked some written questions and the would-be Commissioners have replied. However, the oral hearings which will shortly take place are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments.

The following are suggested questions on institutional issues, although of course MEPs should also ask questions on the substance of EU foreign policy.

QUESTIONS TO HIGH REPRESENTATIVE CANDIDATE MOGHERINI

1 External Internal Security Policy

In your written answer you claim the need of a consistent and global approach to external and internal security. However, legally these two dimensions have been artificially separated in the Treaties by a disconnection clause (art.40 of TEU) [1] according to which the external security will remain intergovernmental. This means that consensus between the 28 Member States will remain the main rule, there are no legislative powers and the Court of Justice has no full judicial oversight. Bearing in mind these flaws of the EU external security policy (also from the point of view of the democracy principle and of the rule of law) would not be better to achieve some of your goals by building them on the external dimension of “internal” policies (such as protection of borders, migration, judicial and police cooperation)? If so qualified majority will be the rule and external agreements will be approved by the EP (as already happened with some EU-US agreements) and EU acts will be under the control of the Court of justice…

2.Solidarity clause in case of terrorist attack or natural or man made disaster (art. 222 TFEU)

On a joint proposal of your predecessor and of the Commission on 24 June 2014 the Council adopted thearrangements for the implementation by the Union of the solidarity clause (art 222 TFEU)  to be activated  if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The text has been adopted without associating the EP and moreover it does not foresee any structured information of the European Parliament on the way in which threats are defined and monitored, not even in the case that such an event occurs. However even if the Treaty does not impose a requirement to provide this information nothing would had prevented the Council from  foreseeing it on its own initiative also because it would be bizarre that the members of the EP discover a terrorist attack from the press rather than from institutional channels. Will you propose an amendment to that Decision by recognising an adequate space for the EP?

3.Global Approach to Migration and mobility partnership as a binding act

As you rightly say in your written answer, EU development policy and international agreements could be the answer to address the root causes of displacement. However the Global Approach of Migration and the mobility partnership are only diplomatic instruments and are meaningless if not framed as full international agreements. Should they be transformed into legal binding acts (both for third countries and the EU and its Member States) and be accompanied by formal EU agreements with the relevant UN Agencies (UNHCR, IOM) tasking (and financing) them for the interventions in third countries? Continue reading

WARNING: THE EU COUNCIL IS TRYING TO UNDERMINE PRIVACY SEALS (and through this, the General Data Protection Regulation)

by Douwe KORFF (*)

(*) Professor Douwe Korff is an Associate of the Oxford Martin School of the University of Oxford and a Visiting Fellow at Yale University (Information Society Project). He helped to establish the European Privacy Seal (EuroPriSe) scheme discussed in the text.

  1. Introduction

Some people, including myself, believe that good privacy seals, managed by the right bodies, can make a serious contribution to high-level data protection – while bad seals, issued by bodies that are more interested in providing fig-leaves and making money, can seriously harm data protection. The arrangements for data protection certification in the new General Data Protection Regulation (hereafter: “the regulation”) are therefore important. The original draft of the regulation, issued by the Commission in January 2012, merely said that certification schemes should be “encouraged” (although it provided for some EU-level harmonisation of the frameworks).

The European Parliament’s amended text is much more ambitious in this regard and, if adopted, would make certification schemes both more integrated with the general data protection regime and stronger, also in terms of ensuring that no seals could be issued in one Member State that would undermine data protection in other Member States.

However, the text set out in an EU Council document dated 26 September 2014 and just leaked, shows that the Member States are trying to undermine the good proposals of Parliament.

At II, I first briefly set out the problems with European privacy seal schemes under the current rules. Next, at III, I analyse the relevant provisions in the different versions of the regulation, adopted by the Commission, Parliament and the Council. Finally, at IV, I conclude that if the Council text were to be adopted, the provisions on seals could become a Trojan Horse that could seriously undermine the in principle strong data protection regime in the regulation (pace other watering-down attempts by the Council). This note thus seeks to sound a warning to those involved in the upcoming trilateral negotiations on the regulation text, not to allow such a dangerous scheme (or rather, an ill-defined miscellany of schemes) to slip in.

  1. Data protection seals and the 1995 Data Protection Directive

There is no explicit provision on data protection- or privacy seals or certification schemes in the main EC data protection directive (Directive 95/46/EC, hereafter “the directive”), although other self-regulatory mechanisms, such as codes of conduct and contractual arrangements are encouraged under it (see Art. 27 re codes; Art. 26(2) re “appropriate contractual clauses”). Nevertheless, the European Commission has in practice encouraged the establishment of seals, in particular by supporting the establishment of the “European Privacy Seal” (EuroPriSe) scheme under an “e-TEN” programme; this was until recently operated by the data protection authority of the German Land of Schleswig-Holstein, the Independent Centre for Privacy Protection (or ULD after its German initials), but has recently been passed on to a private German company, 2B.[1] The French data protection authority, CNIL, has also established a certification scheme, under which controllers can certify that they meet certain CNIL-specified criteria (but so far only in relation to privacy training, data protection audit, and one product: cloud computing).[2]

Continue reading

Future of EU migration, home and justice policies. Some questions to the new candidates commissioners..

by Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be Commissioners for immigration and home affairs and Justice will shortly be questioned by Members of the European Parliament (MEPs) in hearings, to determine whether the EP should vote to confirm them in office. MEPs have already asked some written questions and the would-be Commissioners have replied. Since most of the written questions were not very searching (except for a couple of questions on data protection issues), the Commissioners did not reply in much detail. However, the hearings are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments, in these fields. To that end, we have therefore suggested a number of oral questions which MEPs should ask in the hearings.

Immigration and asylum

The Commission consider that migration policy should be framed by the (non binding) objectives of the global approach to migration (GAMM) and relations with third countries should be dealt with by “Mobility Partnership” which are more diplomatic declarations than binding acts. Would you propose a binding legal basis for treaties with the countries concerned, grounded on Articles 77, 78 and 79 of the TFEU?

What actions will the Commission take to ensure that EU legislation in this field is fully and correctly implemented by the Member States?

Will the Commission propose an immediate amendment to the EU visa code, to confirm that Member States are obliged to give humanitarian visas to those who need them and who apply at Member States’ consulates in third countries?

When will the Commission propose EU legislation to guarantee mutual recognition of Member States’ decisions regarding international protection, including the transfer of protection?

When will the Commission make proposals for a framework for sharing responsibility for asylum-seekers and persons who have been granted international protection, starting with those who have applied outside the territory of the Member States?

Will the Commission propose an immigration code, and what will its main contents be?

The Court of Justice has recognised that search and rescue obligations are interlinked with external borders surveillance (Case C-355/10). The EU adopted rules in this field which governing only border control coordinated by Frontex. Do you intend to propose that such rules should apply to all Member States’ border controls as a general rule, by formally amending the Schengen Borders Code ?

What immediate and longer-term steps will the Commission take to address the death toll of migrants crossing the Mediterranean?

Will the Commission propose to amend the EU legislation on facilitation of unauthorised entry to confirm that anyone who saves migrants from death or injury during a border crossing, or who otherwise acts from humanitarian motives, is exempt from prosecution?

Internal Security and Police cooperation Continue reading

La nouvelle Commission Juncker et la JAI : que tout change pour que rien ne change ?

by Henri LABAYLE (CDRE)

Original published HERE

La composition de la nouvelle Commission a suscité nombre de commentaires dans les médias, souvent bienveillants sinon flatteurs. L’a priori favorable dont bénéficie son Président, Jean Claude Juncker, n’empêche pas de douter de leur bien-fondé en matière de Justice et d’affaires intérieures, à supposer d’ailleurs que ces commentaires se vérifient dans les autres domaines d’action de l’Union.

Après des discours encourageants semblant indiquer que les thèmes des valeurs de l’Union et de l’urgence migratoire avaient été pris en considération par le programme du candidat à la Présidence, le retour à la réalité est moins enthousiasmant. Sans procès d’intention, il faut se résoudre à penser que, non seulement le changement ici aussi n’est pas pour maintenant, mais qu’il n’est pas davantage dans l’esprit des dirigeants de l’Union.

On fera litière d’abord des éléments de communication habilement distillés dans les rédactions des grands médias européens, notamment via un document de presse intelligemment construit. En résumé, la nouvelle Commission serait aujourd’hui un animal « politique », par opposition à sa composition technocratique précédente. Cette option est résumée ainsi par son président : « les commissaires ne sont pas des fonctionnaires ». Est-on bien certain que l’inverse n’est plus vrai ?

Soit, même si à l’examen il est aisé de se rendre compte que nombre de ces politiciens ont plutôt leur avenir politique derrière eux (5 anciens premiers ministres, 4 vice-premiers ministres, 19 anciens ministres, 7 commissaires sortants, nous dit-on), à supposer parfois qu’ils en aient eu un. Reste alors l’habileté manœuvrière qui, si l’on se penche plus précisément sur la JAI, réclamera vraisemblablement davantage de solliciter celle de Jean Claude Juncker que de compter sur le dispositif proposé.

Quelle délimitation des composantes de l’Espace de liberté ?

Continue reading

The new Commission: first thoughts on Justice and Home Affairs issues

By Steve PEERS

ORIGINAL POSTED HERE

Today’s list of jobs for the next European Commission – and the accompanying major restructuring of the Commission – has major implications for every area of EU policy. But here are my initial thoughts about the impact upon Justice and Home Affairs (JHA) issues.

Of course, the next European Commission still has to be confirmed by the European Parliament (EP). The EP insisted on changes to the planned list of Commissioners in 2004 and 2009, so it might well do so again. But nevertheless, it’s an opportune moment to examine the new Commissioners who will have responsibility for JHA issues – as well as the revised structure of the Commission as it affects such issues.

Migration and Home Affairs

As before, the area of immigration and home affairs (ie policing and internal security) is assigned to a separate Commissioner. Therefore the suggestion in some quarters that there’s a new ‘Commissioner for immigration’ is just not true. There is also still a separate Directorate-General (DG) dealing with these issues. DG Home picks up responsibility for anti-drug policy and security research, and does not lose any policy responsibilities.

The new Commissioner is Dimitris Avramopolous. He has no background in this field, and his current job is Greek defence minister. But that’s misleading: he started out his career as a diplomat, became a popular mayor of Athens and was also an MP (for the conservative New Democracy party), holding ministerial posts for tourism, health and foreign affairs before becoming defence minister. So he has a broad diplomatic and political background.

The most striking thing about his appointment is his nationality. Greece is, of course, at the centre of the debate about the effectiveness of the EU’s ‘Dublin’ policy, which assigns responsibility for asylum applications to (in effect, in most cases) the first country which they enter. That is frequently Greece. So partly as a result of the Dublin rules, the Greek asylum system has broken down in recent years, and both the CJEU and the European Court of Human Rights have ruled that sending asylum-seekers to Greece would violate their fundamental rights.

Since Avramopolous never previously held a job relating to immigration policy, he can’t be blamed directly for these problems. Also, it must be recalled that because Commissioners are independent of the government which appointed them (although Commissioners have been known to forget this), it will not be his job to defend the Greek government, but rather to articulate and enforce EU policy in this area. Hopefully it will be an advantage, not a detriment, to have an immigration Commissioner from a Mediterranean state, given the crucial role which sea crossings play in EU immigration policy.

In light of the external impact of EU immigration policy, it also useful that the new Commissioner has diplomatic experience. In particular, it’s potentially significant that he is credited as one of the authors of the recent Greek-Turkish rapprochement. Migrants who come from Turkey and refugees who travel via Turkey are a significant part of those who come to the EU, and the EU/Turkey readmission agreement will come into force on 1 October. One of his chief tasks will be to ensure EU visa liberalisation for Turkey, as a quid pro quo for the readmission agreement and other changes in Turkish policy. On paper at least, he is the right man for this job.

Justice Continue reading

The new Juncker  Commission: an “Echternach procession” for the freedom security and justice agenda ?

by Emilio DE CAPITANI

Text Updated on September 11, 2014 

1. Jean-Claude Juncker, President-elect of the European Commission which should start working from November 1st has unveiled today its team, its main priorities and its new method. As far as the Freedom security and justice area related policies are concerned there are some interesting and some worrying messages arising notably from the “mission” letters sent to the vice-president and to the two Commissioneers which will be in charge of this sensitive domain.

Vice President Timmermans :the “right hand” of the King ?

2. The most interesting (and promising?) is the fact that the respect for the rule of law and of the Charter will be the main mission of the first vice President (M. Timmermans) who will be the “right hand”  of the Commission President and who will have a veto power on the legislative initiatives presented by anyone of the members of the College.

3. The future will tell us if the Vice Presidents coordinating role will be a serious one (as the Juncker formula seems to suggest) or will only be a cosmetic formula as it was when under the Prodi Commission, for the first time this organisational model was launched. For the VP it will not be an easy task as it will not be served by a General Directorate. Within an institution where more than 80% of the decisions are taken by written procedure and where the real coordination/negotiation is done at head of Cabinet’s level the lack of administrative troops could be a serious handicap. That having been said it is more than likely that VP Timmermans will be supported by the Commission Secretary General and by the Legal Service (even if both are directly linked to Mr Juncker). Again who between them will be the real leader is still to be verified.

Three steps forward…

4. Unlike his predecessor Sefcovic in the Barroso Commission who was also in charge of the “Better Regulation” policy Vice President Timmermans should ensure that every Commission proposal or initiative will comply with the Charter of Fundamental Rights. Moreover the mission letter fix a six months deadline to revise the consistency of the current legislation and states that  the new Vice President should “ensure that every Commission proposal or initiative complies with the Charter of Fundamental Rights”. Maybe this is a positive consequence of the fact that the Court of Justice does no more hesitate from striking down EU legislation when in contrast with the Charter (as it has been the case for the recent Data Retention Ruling). However some hot potatoes are already on the table such as the EU-PNR or the Smart Border package (Entry-Exit and registered traveller program) which will be hard to consider compliant with the principles of non discrimination and of data protection as outlined by the CJEU.

5. Moreover the mission letter establish a six months term to revise the legislation to be “RE-FITTED” in compliance with the new criteria set by President Juncker. Again, it will not be easy as already one month after the envisaged entry into force of the new Commission will end the transitional period for hundred measures in police and judicial cooperation adopted before the entry into force of the Lisbon Treaty (European Arrest Warrant, Prum Decisions and several framework decisions…) without any serious impact evaluation on fundamental rights.

6. VP Timmermans will also be in charge the accession of the EU to the ECHR and of the coordination of the Commission’s work related to the Rule of Law as well as on the Cooperation and Verification Mechanism for Bulgaria and Romania. These tasks in the previous Barroso Commissions were very often treated only at the legal service level and raise at political level only in very exceptional cases (as it has been the case with Hungary). The fact that the Juncker  Commission does not intend to hide under the carpet the tensions which could arise with some Member States when the rule of law is at stake (even if  this “..is also an area where we need to be sensitive to the diversity of constitutional and cultural traditions in the 28 Member States”) should then be welcome.

7. Again, unlike his predecessor Sefcovich, the new first vice president  Timmermans will also “.. guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs” and will “manage and coordinate the participation of the Commission in the Justice and Home Affairs Council“ which means that coordination will not be avoid formula. Let’s hope that thanks  to this coordinating role the tensions which have arisen between the two commissioners on Home and Justice in the previous legislature will remain a thing of the past.

..and two steps back..

8. That having been said the message arising from the missions of the two candidate Commissioners in charge of Justice, Home affairs and migration is more ambiguous.

9. First and foremost the mission of the Justice minister  which was in the previous mandates focused on the core of judicial cooperation in criminal matters (as it is the case in the Member states) is now much more oriented to civil justice, consumer protection and ..the digital market. These are all important issues but not exactly the core of the Justice policy which, in the Juncker vision looks ancillary  even to “…our jobs and growth agenda, including through an assessment of the performance of judicial systems in the context of the European Semester of economic policy coordination.” Is the new Commission afraid (as the European Council in its recent guidelines) of the judicial area of criminal law ?  In theory this should not be the case because the Justice Commissioner will also be in charge of “all the Commission’s work in criminal matters and reinforcing judicial cooperation in this field. Putting an independent European Public Prosecutor’s Office in place by 2016 will be a significant step forward to protect the EU budget from fraud.”

10. However this declaration is contradicted by the mission of the Commissioner in charge of  “Migration and Home Affairs” who should “robustly address the challenge of irregular migration”,  “step up the fight against cross-border crime and terrorism” and focus “… on the fight against crime with a clear link to EU policies, such as human trafficking, smuggling and cybercrime and helping to tackle corruption, also by strengthening police cooperation”.

11. Do all these objectives fall outside judicial cooperation in criminal matters ? Will the Home Commissioner be in charge of the future legislation on euro crimes as it has been the case already in the previous Barroso Commission when the legislative proposal on trafficking of human beings, confiscation , and sexual abuse have been proposed by the Home Commissioner instead of the Criminal Justice commissioner ?

11. Instead of a patchwork of partially overlapping competencies in criminal law would had not been much wiser to link more clearly the competencies of the two “operational” commissioners to the relevant legal basis in the Treaty (where judicial cooperation in civil and criminal matters are dealt by articles 81-86 and  police cooperation is dealt with by articles 87-89) ?

12. But the worst suprise is the confirmation of the link between  police cooperation and migration policies. Why migration is still considered a threat for the European Union so that it has to be dealt by the Ministry of interior ? Would not had been better to link the announced “new” portfolio of migration policy within the neighbouring policy or with the social policy or even to a new objective of “human mobility” where as it happens within the Schengen cooperation the right to freedom of movement of EU citizens and third country nationals are de facto coming closer  ?

13. The real outcome of the current configuration is a the growing role of the EU homeland security policy which will not only drive most of the future  legislation in criminal matters but will also drive (or be driven by?) the EU external security policy which still remain the main intergovernamental policy area after the Treaty of Lisbon. Last but ,ot least DG Home will now  manage some hundreds of millions of euros of research in the security domain.

14. Would had not been more logic (and compliant with the EU Charter) bringing together police and judicial cooperation under a rule of law perspective (as it is the case in the European Parliament with the LIBE committee) instead of creating spurious links between consumers policy with criminal justice and police cooperation with migration.

15. Moreover is the latter still considered a threat for the European Union to continue to be dealt by the Ministry of interior ? Would not had been better to link the announced “new” portfolio of migration policy with the neighbouring policy or with the social policy ?

16. Even the best of the Vice president will not be able to right up something which has been so badly designed and which mirror a typical Luxembourg procession in Echternach where people advance by making three step forward and …two step back.

———————-

ANNEX (text emphasized by me)

First Vice-President Frans Timmermans(150 kB)

10 September 2014

Jean-Claude Juncker, President-elect of the European Commission

Mission letter for  Frans Timmermans: First Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights

Dear Frans,

You are becoming a Member of the new European Commission at a particularly challenging time for the European Union. With the start of the new Commission, we have an exceptional opportunity, but also an obligation, to make a fresh start, to address the difficult geo-political situation, to strengthen economic recovery and to build a Europe that delivers jobs and growth for its citizens.

I want the new Commission to be a strong and political team. And I want you, with your political skills and experience, to fully play your part in this team.

We will have a lot to do in the years to come and we will have to show a united and clear sense of purpose from our very first day in office. In the Political Guidelines for the new European Commission that I presented to the European Parliament on 15 July, I set out a new Agenda for Jobs, Growth, Fairness and Democratic Change, focused on ten priorities.

I had discussed and developed this Agenda in detail in meetings with all the political groups in the European Parliament. The Political Guidelines are, therefore, somewhat akin to a political contract that I concluded with the European Parliament to mark the beginning of a new mandate and to prioritise the work of the new Commission.

I will be looking for your support, creativity and action to help deliver concrete results.

Following our recent discussions, I would like you to be my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

In this mission letter, I set out what I expect from you as a Member of the Commission as well as specific goals for which you will be responsible for reaching during our mandate.

A new way of working

Delivering the priorities of the Political Guidelines will require a reform of the way the Commission has operated up until now. Reform means change. I want us all to show that we are open to change and ready to adapt to it.

I want the Commission as a whole to be more than the sum of its parts.

I therefore want us to work together as a strong team, cooperating across portfolios to produce integrated, well-grounded and well-explained initiatives that lead to clear results.

I want us to overcome silo mentalities by working jointly on those areas where we can really make a difference. We cannot and should not do everything: I want the European Commission to be bigger and more ambitious on big things, and smaller and more modest on small things.

I also want us to focus our energy and efforts on ensuring effective implementation and follow-up on the ground. I count on you to play your part in this new collaborative way of working.

To facilitate this, I have decided to organise the new Commission differently from its predecessors.

I will entrust a number of well-defined priority projects to the Vice-Presidents and ask them to steer and coordinate work across the Commission in the key areas of the Political Guidelines.

This will allow for a better focus and a much stronger cooperation amongst Members of the College, with several Commissioners working closely together as a team, led by the Vice-Presidents, in compositions that may change according to need and as new projects develop over time.

To empower them to deliver on their priority projects, the Vice-Presidents will act on my behalf and will help exercise my rights and prerogatives in their area of responsibility.

In particular, the Vice-Presidents will be in charge of:

  • Steering and coordinating work in their area of responsibility. This will involve bringing together several Commissioners and different parts of the Commission to shape coherent policies and deliver results.
  • Assessing how and whether proposed new initiatives fit with the focus of the Political Guidelines. As a general rule, I will not include a new initiative in the Commission Work Programme or place it on the agenda of the College unless this is recommended to me by one of the Vice-Presidents on the basis of sound arguments and a clear narrative that is coherent with the priority projects of the Political Guidelines.
  • Managing and organising the representation of the Commission in their area of responsibility in the European Parliament, the Council, national Parliaments and other institutional settings as well as at international level.
  • Promoting a proactive and coordinated approach to the follow-up, implementation, and communication of our priority policies across the Union and internationally.

Respect for the principles of subsidiarity, proportionality and better regulation will be at the core of the work of the new Commission. We will concentrate our efforts on those areas where only joint action at European level can deliver the desired results. When we act, we will always look for the most efficient and least burdensome approach. Beyond these areas, we should leave action to the Member States where they are more legitimate and better equipped to give effective policy responses at national, regional or local level.

I will therefore pay particular attention to your opinion as my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, before including any new initiative in the Commission Work Programme or putting it on the agenda of the College. You will also be entrusted with the regular monitoring of procedures linked to the preparation of delegated and implementing acts to ensure full political ownership.

I will also pay particular attention to the opinion of the Vice-President for Budget and Human Resources as regards the impact of our activities on the financial resources and staff of the European Commission. We will have the privilege of being supported by an excellent, highly motivated European civil service and a professionally well-run administration, but its resources are limited and have to be used to best effect. This is also why I will want resources to be allocated to our priorities and to make sure that every action we take delivers maximum performance and value added.

I also want all Commissioners to ensure sound financial management of the programmes under their responsibility, taking all necessary measures to protect the EU budget from fraud.

Under my supervision, Vice-Presidents will be supported by the Secretariat General in their tasks but will primarily rely on close cooperation with the relevant Commissioners and the services that report to them.

In addition, Vice-Presidents will be able to draw on any service in the Commission whose work is relevant for their area of responsibility, in consultation with the relevant Commissioner.

With regard to the Union’s external action, I have launched a pragmatic partnership with the new High Representative of the Union for Foreign Affairs and Security Policy, who, according to the Treaties, is one of the Vice-Presidents of the Commission.

The new High Representative and I have agreed that she will play her role as a Commission Vice-President to the full. She will notably steer and coordinate the work of all Commissioners with regard to external relations through a Commissioners’ Group on External Action to develop a joint approach.

This Group will meet at least once a month in varying thematic and/ or geographic formats, according to the needs identified by the High Representative/Vice-President or by me.

The High Representative/Vice-President will regularly report back to me and the whole College about geopolitical developments. To liaise more effectively with the other Members of the College, we agreed that she will have her Headquarters in the Berlaymont, and that the Commission will put a Cabinet of an appropriate size at her disposal, about half of which will be Commission officials.

We also agreed that, whenever she sees the necessity to do so, she will ask the Commissioner for European Neighbourhood Policy and Enlargement Negotiations and other Commissioners to deputise in areas related to Commission competence.

Working together in this new way across the Commission should help ensure that the final decisions we take as a College are well-prepared and focused on what is important and that we are all equipped to explain and defend them. We will have to show a team spirit to make the new system work. Our success will depend on each and every one of you: on the team leadership of the Vice-Presidents and on the readiness of Commissioners to be strong team players. I would ask you all to work together to ensure that this new system works well.

The portfolio of the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights

As my first Vice-President, you will steer and coordinate the Commission’s work in the areas of Better Regulation, Inter-Institutional relations, the Rule of Law and the Charter of Fundamental Rights.

You will work closely with the other Vice-Presidents, and all Commissioners will liaise closely with you when it concerns the implementation of our better regulation agenda.

In addition, for initiatives requiring a decision by the Commission in their area of responsibility, you will guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs.

You will drive the Commission’s work on better regulation in order to maximise its contribution to our jobs and growth agenda, both by coordinating the Commission’s work and by promoting the principles of better regulation in the EU institutions and at national level.

You will also be responsible for strengthening and deepening the Commission’s relations with the other institutions and national Parliaments.

During our mandate, I would like you to focus on the following, in your role as Vice-President:

  • Coordinating the work on better regulation within the Commission, ensuring the compliance of EU proposals with the principles of subsidiarity and proportionality, and working with the European Parliament and the Council to remove unnecessary “red tape” at both European and national level. This includes steering the Commission’s work on the “Regulatory Fitness and Performance Programme” (REFIT) of EU legislation and ensuring the quality of impact assessments underpinning our activities. I will ask you to take stock of experience and report to the College within twelve months on how our approach to better regulation could be strengthened.
  • Ensuring that the special partnership with the European Parliament, as laid down in the Framework Agreement of 2010, is pursued with full commitment, and coordinating, on behalf of the Commission, the inter-institutional work on policy programming and better law-making.

I will ask you to discuss, within the first three months of the mandate, with the European Parliament and the Council, the list of pending legislative proposals and to determine whether to pursue them or not, in accordance with the principle of “political discontinuity”.

  • Coordinating and strengthening the interaction of all Commissioners with national Parliaments as a way of bringing the European Union closer to citizens and forging a new partnership with national Parliaments.
  • Ensuring that every Commission proposal or initiative complies with the Charter of Fundamental Rights.
  • Leading the dialogue between the European Commission and churches and religious associations or communities, as well as with philosophical and non-confessional organisations, in a transparent and regular manner.
  • Concluding the process of accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe.
  • Coordinating the Commission’s work related to the Rule of Law.
  • Coordinating the Commission’s work on the Cooperation and Verification Mechanism for Bulgaria and Romania.
  • Coordinating the work on transparency and preparing a proposal for an Inter-Institutional Agreement creating a mandatory lobby register covering the Commission, the European Parliament and the Council.

You will represent the Commission in the General Affairs Council and in negotiations on institutional issues. You will also manage and coordinate the participation of the Commission in the Justice and Home Affairs Council.

You will be responsible for the Commission’s relations with the European Economic and Social Committee and the Committee of the Regions, as well as with the European Ombudsman.

You will coordinate the work on audit and chair the Audit Progress Committee (APC). To help you fulfil these responsibilities, the Internal Audit Service (IAS) will report to you. The IAS should be gradually reinforced through the integration of the Internal Audit Capacities of individual Commission services.

Our principles: ethics and transparency

We must abide by the highest possible professional and ethical standards at all times. I want the European Commission to lead the way as a modern, efficient and transparent public administration, open to all input that helps us deliver work of a consistently high quality, in full independence and impartiality. Our conduct must be unimpeachable. You have received the Code of Conduct of the Members of the European Commission. I expect all of us to honour both the word and the spirit of the Code.

You will have seen that the Political Guidelines include a new commitment to transparency. Transparency should be a priority for the new Commission and I expect all of us to make public, on our respective web pages, all the contacts and meetings we hold with professional organisations or self-employed individuals on any matter relating to EU policy-making and implementation. It is very important to be transparent where specific interests related to the Commission’s work on legislative initiatives or financial matters are discussed with such organisations or individuals.

Working in partnership for Europe

The Commission’s partnership with the other EU institutions and the Member States, as defined in the Treaties, is fundamental. The Union only succeeds when everyone is pulling in the same direction: this is why we should work in the months to come to forge a common understanding between the institutions about what we want to achieve and how we will go about it.

The Commission’s relationship with the European Parliament is the source of our democratic legitimacy. This must, therefore, be a political and not a technocratic partnership. I expect all Commissioners to invest in this relationship and to make themselves available for and to take an active part in plenary sessions, committee meetings and trilogue negotiations.

The meetings with the parliamentary committees over the weeks to come will be an opportunity for you to lay the foundations for a productive working relationship, to explain how your work will contribute to joint political priorities, and to demonstrate your commitment and suitability for your broader role as a Member of the College.

Effective policy-making also requires a deep understanding of every one of the Member States, of their common challenges and of their diversity. While fulfilling your obligation to participate in Commission meetings and engage with the European institutions, I want you all to be politically active in the Member States and in dialogues with citizens, by presenting and communicating our common agenda, listening to ideas and engaging with stakeholders.

In this context, I want all Commissioners to commit to a new partnership with national Parliaments: they deserve particular attention and I want, under your coordination as my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, important proposals or initiatives to be presented and explained in national Parliaments by Members of the Commission. This should also allow us to deepen the country-specific knowledge within our institution and to build mutual understanding and effective channels of communication between the national and the European level.

***

The European Union has come through one of the most testing periods in its history.

The effects of the economic and financial crisis are still causing great hardship in many parts of Europe. We live in a Union with a 29th state of unemployed people, many of them young people who feel side-lined. Until this situation has changed, this 29th state must be our number one concern, and we have to be very determined and very responsible in carrying out our work as Members of this Commission.

I am looking forward to working with you on the new start that our European Union needs now.

Jean-Claude JUNCKER

Annex: Table of allocation of portfolios and supporting services 

As first Vice-President, in charge of Better Regulation, Inter-Institutional relations, the Rule of Law and the Charter of Fundamental Rights, Mr Timmermans will work closely with the other Vice-Presidents, and all Commissioners will liaise closely with him when it concerns the implementation of the better regulation agenda. In addition, for initiatives requiring a decision by the Commission in their area of responsibility, he will guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs.

Internal Audit Service (IAS)

————————————————

Jean-Claude Juncker, President-elect of the European Commission

Mission letter  for Vêra Jourová Commissioner for Justice, Consumers and Gender Equality

(EXCERPTS)

Dear Vêra,

You are becoming a Member of the new European Commission at a particularly challenging time for the European Union. …(see  general part of VP Timmermans letter)…

The Justice, Consumers and Gender Equality portfolio

You will be the Commissioner for Justice, Consumers and Gender Equality.

You will, in particular, contribute to projects steered and coordinated by the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, as well as the Vice-President for Jobs, Growth, Investment and Competitiveness and the Vice-President for the Euro and Social Dialogue.

For other initiatives requiring a decision from the Commission, you will, as a rule, liaise closely with the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

In the Political Guidelines, I underlined that our shared values are the foundation of the EU.

These are spelled out in the Treaties and in the Charter of Fundamental Rights, which underpins all our work. The EU needs to consistently respect and uphold the rule of law and fundamental rights. This is also an area where we need to be sensitive to the diversity of constitutional and cultural traditions in the 28 Member States.

A strong EU justice and consumer policy can build bridges between national legal systems and be a key part of reaping the full benefits of the Single Market, cutting red tape and facilitating cross-border business.

A sound and predictable justice system is also a prerequisite for economic growth and a business friendly environment.

During our mandate, I would like you to focus on the following:

  • Supporting the first Vice-President, in charge of Better Regulation, Inter-institutional Relations, the Rule of Law and the Charter of Fundamental Rights, in concluding the process of accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, in making sure that all Commission proposals respect the Charter of Fundamental Rights and in consolidating the Commission’s role in protecting the Rule of Law. You will also work with the High-Representative for the Union’s Foreign Policy and Security/Vice-President to promote our values in our external relations.
  • Ensuring that, within the scope of EU competences, discrimination is fought and gender equality promoted, including by exploring how to unblock negotiations on the Commission proposal for the Horizontal Anti-Discrimination Directive.
  • Contributing, as part of the project team steered and coordinated by the Vice-President for the Digital Single Market, to the realisation of a connected digital single market by ensuring the swift adoption of the EU data protection reform and by modernising and simplifying consumer rules for online and digital purchases.
  • Concluding negotiations on a comprehensive EU-U.S. data protection agreement which provides justiciable rights for all EU citizens, regardless of where they reside, as well as reviewing the Safe Harbour arrangement.
  • Reinforcing, as part of the project teams steered and coordinated by the Vice-President for Jobs, Growth, Investment and Competitiveness and the Vice-President for the Euro and Social Dialogue, the contribution of EU justice policies to our jobs and growth agenda, including through an assessment of the performance of judicial systems in the context of the European Semester of economic policy coordination.
  • Coordinating all the Commission’s work in criminal matters and reinforcing judicial cooperation in this field. Putting an independent European Public Prosecutor’s Office in place by 2016 will be a significant step forward to protect the EU budget from fraud.

To help you to fulfil these responsibilities, the Directorate-General for Justice (DG JUST) will report to you, with some adjustments, as indicated in the table annexed to this letter.

Our principles: ethics and transparency… (see correspondent chapter of Timmermans mission letter)…

———————–ANNEX

DG Justice (JUST)

The relevant parts of the Consumer, Health and Food Executive Agency (CHAFEA)

Responsible for relations with: The EU Agency for Fundamental Rights (FRA) The European Institute for Gender Equality (EIGE) The European Union Judicial Cooperation Unit (EUROJUST)

Changes for DG JUST- Unit MARKT F2 (Corporate Governance, Social Responsibility) moves from DG Internal Market and Services (MARKT) to DG JUST. - Directorate SANCO B (Consumer Affairs) moves from DG Health and Consumers (SANCO) to DG JUST, except for Unit SANCO B2 (Health Technology and Cosmetics), which moves from DG Health and Consumers (SANCO) to DG Enterprise and Industry (ENTR). - Unit JUST B3 (Anti-Drugs Policy) moves from DG JUST to DG Home Affairs (HOME). - Unit JUST D3 (Rights of Persons with Disabilities) and the part of Unit JUST D1 (Equal Treatment Legislation) dealing with the Directive establishing a general Framework for Equal Treatment in Employment and Occupation, move from DG JUST to DG Employment, Social Affairs and Inclusion (EMPL

—————————————–

Mission letter for Dimitris Avramopoulos Commissioner for Migration and Home Affairs

Dear Dimitris,

(see first part of  mission letter to Vice President Timmermans )

The Migration and Home Affairs portfolio

You will be the Commissioner for Migration and Home Affairs. You will, in particular, contribute to projects steered and coordinated, in particular, by the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, as well as to the work of the High Representative of the Union for Foreign Affairs and Security Policy/Vice-President. For other initiatives requiring a decision from the Commission, you will, as a rule, liaise closely with the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

Migration is one of the pressing challenges I have highlighted in my Political Guidelines. Europe needs to manage migration better, in all its aspects. A successful migration policy is both a humanitarian and an economic imperative. We need to show that the EU can offer both a compelling case to attract global talent, and a vision of how to robustly address the challenge of irregular migration. We need a new policy on migration that will address skill shortages and the demographic challenges the EU faces and that will modernise the way the EU addresses these challenges.

The other priority of your portfolio will be to help the Member States to manage and secure Europe’s borders. The Common Asylum EU framework needs to be fully applied and operational.

We also need to step up the fight against cross-border crime and terrorism. The EU can make a key contribution to citizens’ security in an area with clear ramifications for freedom of movement and fundamental rights.

The focus should be on concrete operational measures where the action of the EU can have an impact – and where we can show that this does not compromise our commitment to fundamental rights and values.

During our mandate, I would like you to focus on the following:

  • Developing a new European policy on regular migration. Such a policy should help Europe address skills shortages and attract the talent that it needs. A first step will be to address the shortcomings of the “Blue Card” Directive: I would ask for a first review to be concluded within six months of the start of the mandate. Further steps will require reflection on the best ways to make the EU an attractive place for migration destination, on the basis of other existing models.
  • Boosting the effectiveness of the European border agency FRONTEX by developing a system to pool resources from Member States. We need to be able to put European Border Guard Teams into action quickly, with the participation of all Member States as a rule.
  • Working to ensure the full and consistent implementation of the Common European Asylum System. We should look at an extended role for the European Asylum Support Office, with a particular focus on working with and in third countries. We should also develop a strategy for improving our response to emergency situations.
  • Working with the High Representative of the Union for Foreign Affairs and Security Policy/VicePresident and the Commissioner for International Cooperation and Development on ways to improve cooperation with third countries on these aspects, including on readmission.
  • Focusing on the fight against crime with a clear link to EU policies, such as human trafficking, smuggling and cybercrime and helping to tackle corruption, also by strengthening police cooperation.
  • Identifying where the EU can make a real difference in fighting terrorism and countering radicalisation, ensuring the respect of fundamental rights. We should be able to define operational measures which can have a concrete impact on issues such as “foreign fighters”.
  • Working closely with the High-Representative of the Union for Foreign Affairs and Security Policy/Vice-President, the Commissioner for International Cooperation and Development and the Commissioner for Trade to strengthen the EU’s strategic partnership with Africa.

To help you fulfil these responsibilities, the Directorate-General for Home Affairs (DG HOME) will report to you, with some adjustments, as indicated in the table annexed to this letter.

Our principles: ethics and transparency …(see third part of the general letter)…

 ANNEX – (Administrative adjustments)

DG Home Affairs (HOME) The relevant parts of the Research Executive Agency (REA)

Responsible for relations with: The agency for the management of large IT systems (EU-LISA) The European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX) The European Asylum Support Office (EASO) The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) The European Police Office (EUROPOL) The European Police College (CEPOL)

Changes for DG HOME- Unit ENTR G4 (Policy and Research in Security) moves from DG Enterprise and Industry (ENTR) to DG HOME. - Unit JUST B3 (Anti-Drugs Policy) moves from DG Justice (JUST) to DG HOME.

Two Codes to rule them all: the Borders and Visa Codes

ORIGINAL PUBLISHED ON EU LAW ANALYSIS HERE

Written by Steve PEERS

In today’s judgment in Air Baltic, the Court of Justice of the European Union (CJEU) has taken the next logical step following its judgment late last year in Koushkaki, where it ruled that the EU’s visa code set out an exhaustive list of grounds for refusing a visa application.  Today the Court has confirmed that the same is true of theSchengen Borders Code. Moreover, the Court has clarified a number of general and specific points about the nature and interpretation of the two codes.

Facts and judgment

This case concerned an Indian citizen who flew from Moscow to Riga. He had a valid multiple-entry Schengen visa, which was attached to a cancelled Indian passport. He also had a second Indian passport, which was valid but which did not contain a visa. The Latvian border guards then refused him entry into Latvia, on the grounds that the valid visa had to be attached to the valid passport, not to the cancelled passport.

For good measure, the Latvian authorities also fined the airline, Air Baltic, for transporting him without the necessary travel documents. The airline appealed the fine, and lost at first instance. But an appeal court then sent questions to the Court of Justice to clarify the legal position.

The CJEU ruled first of all that the cancellation of a passport by a third country did not mean that the visa attached to the passport was invalid. This was because only a Member State authority could annul or revoke a visa, and because the visa code did not allow for the annulment of a visa in such cases anyway. The Court extended its ruling in Koushkaki to confirm that the grounds for annulling a visa were exhaustive; the same must be true of the grounds for revoking a visa.

Secondly, the Court ruled that the Schengen Borders Code did not require entry to be refused in cases like these. The different language versions of that code suggested different interpretations, but as always, the Court seeks a uniform interpretation of EU law regardless. In this case, the standard form to be given to persons who were refused entry at the border to explain why they were refused does not provide for refusal on the grounds that a valid visa was not attached to a valid passport.

Also, the Court pointed out that the idea of separate visas and passports was not unknown to EU law, since the visa code provides that in cases where a Member State refuses to recognise a passport as valid, a visa must be issued as a separate document. Checking two separate documents was not a huge burden for border guards, and refusing entry simply on the grounds that the valid passports and visas were in two separate documents would infringe the principle of proportionality.

Finally, the Court ruled that the national authorities of Member States do not have any residual powers to refuse entry to third-country nationals on grounds besides those listed in the Schengen Borders Code. The Court reached this conclusion, by analogy with Koushkaki, because: the standard form giving the grounds for refusing entry contains an exhaustive list of grounds for refusal; the nature of the Schengen system ‘implies a common definition of the entry conditions’; and this interpretation would support ‘the objective of facilitating legitimate travel’ referred to in the preamble to the visa code.

Comments

The Court’s ruling that the Schengen Borders Code provides for complete harmonisation of the rules on refusal of entry is not really surprising, particularly after the judgment in Koushkaki reaching the equivalent conclusion regarding the visa code. However, it should be noted that in today’s judgment, the Court does not repeat its qualification in Koushkaki that national authorities had wide discretion to interpret the common rules in question. Furthermore, the Schengen Borders Code is relevant not only to those third-country nationals who need visas for entry, but also those who do not, such as visitors from the USA, Canada and most of the Western Balkans.

In effect, the Court’s ruling confirms that the Schengen zone is in effect the equivalent of the EU’s customs union, as regards the movement of people. Of course, the customs union and the Schengen zone do not apply to the same countries, due to opt-outs from Schengen (UK and Ireland), the deferred admission to the Schengen system (Romania, Bulgaria, Cyprus and Croatia), and the rules on association with each system (Turkey is part of the EU’s customs union, while Norway, Iceland, Liechtenstein and Switzerland apply the Schengen rules). But the basic concept is the same, with the obvious implications as regards exclusive external competence of the EU (although a Protocol to the Treaties conserves some external competence over borders for Member States), and uniform interpretation of the rules in the respective codes.

As to the more detailed aspects of this case, the Court is surely right to rule against the pedantry of insisting that where a person holds a valid visa and a valid passport, the visa must always be attached to the passport. The underlying objective to ensure that the person concerned meets the conditions of entry is satisfied regardless of whether the visa is attached to the passport or not. Also, the Court’s ruling that the Borders Code has to be interpreted in accordance with the principle of proportionality, and in light of the objective of facilitating legitimate travel, could have broader implications in other cases.

Finally, the necessary corollary of the judgments in Koushkaki and Air Baltic is that a third-country national who meets the conditions to obtain a visa and/or cross the external borders has the right to that visa and/or to cross those borders. So these issues are not governed by national administrative discretion, but by uniform EU rules. The strengthening of the rule of law in this field is very welcome.