‘I Travel, therefore I Am a Suspect’: an overview of the EU PNR Directive

ORIGINAL PUBLISHED ON  EU Immigration and Asylum Law and Policy BLOG

By Niovi Vavoula, Queen Mary University of London

According to the PNR (Passenger Name Record) Directive 2016/681 of 27 April2016, a series of everyday data of all air passengers (third-country nationals but also EU citizens, including those on intra-Schengen flights) will soon be transferred to specialised units to be analysed in order to identify persons of interest in relation to terrorist offences and other serious crimes. This new instrument raises once again fundamental rights challenges posed by its future operation, particularly in relation to privacy and citizenship rights. Therefore, the story of the PNR Directive, as described below, is probably not finished as such concerns open up the possibility of a future involvement of the Court of Justice.

1. The story behind the EU PNR System

In the aftermath of 9/11 and under the direct influence of how the terrorist attacks took place, the US legislature established inextricable links between the movement of passengers, ‘border security’ and the effective fight against international terrorism. Strong emphasis was placed on prevention through pre-screening of passengers, cross-checking against national databases and identification of suspicious behaviours through dubious profiling techniques. At the heart of this pre-emptive logic has been the adoption of legislation obliging airlines flying into the US to provide their domestic authorities with a wide range of everyday data on their passengers. These so-called PNR data constitute records of each passenger’s travel arrangements and contain the information necessary for air carriers to manage flight reservations and check-in systems. Under this umbrella definition, a broad array of data may be included: from information on name, passport, means of payment, travel arrangements and contact details to dietary requirements and requests for special assistance. Amidst concerns regarding the compliance of such mechanisms with EU privacy and data protection standards, this model was internalized at EU level through the conclusion of three PNR Agreements with the US – one in 2004, which wasstruck down by the CJEU in 2006, and others in 2007 and 2012. In addition, PNR Agreements with Canada (currently awaiting litigation before the CJEU) andAustralia have also been adopted.

The idea of developing a similar system to process EU air travel data had been on the agenda for almost a decade, particularly since the EU-US PNR Agreements contain reciprocity clauses referring to the possibility of the EU developing such systems. The first proposal for a Framework Decision dates back to 2007. However, no agreement was reached until the entry into force of the Lisbon Treaty. A revised proposal was released in 2011, essentially mimicking the EU-US PNR model, at least as regards the types of data to be processed and the focus on assessing the risks attached to passengers as a mean of preventing terrorist attacks or other serious crimes. In comparison to the proposed Framework Decision it constituted an improvement (for instance, it provided for a reduced retention period and prohibited the processing of sensitive data), yet it was met with great scepticism by a number of EU actors, including the European Data Protection Supervisor, the Fundamental Rights Agency and the Article 29 Working Party who argued that it failed to respect the principles of necessity and proportionality. Eventually, the proposal was rejected by the European Parliament on fundamental rights grounds, but the voting was postponed and the proposal was transferred back to the LIBE Committee.

The EU PNR project was brought back to life after the Charlie Hebdo events in January 2015. In the extraordinary JHA Council meeting of 20 November, immediately after the Paris terrorist attacks, the Council reiteratedthe urgency and priority to finalise an ambitious EU PNR before the end of 2015’. Indeed, on 4 December 2015 a compromise text was agreed. A few days later, the Council confirmed the agreement, but the Parliament did not give its blessing until April 2016, presumably in the light of the negotiations on the Data Protection legislative reforms, which were running in parallel. The fact that the legality of the EU-Canada PNR Agreement was disputed did not affect the course of the negotiations.

2. The EU PNR Directive in a nutshell

The EU PNR Directive places a duty on airline carriers operating international flights between the EU and third countries to forward PNR data of all passengers (as set out in Annex 1) to the Passenger Information Unit (PIU) established at domestic level for this purpose (Article 4). According to Article 2 of the Directive, Member States are given the discretion to extend the regime set out in the Directive to intra-EU flights, or to a selection of them (for a discussion see Council Documents 8016/11 and 9103/11, partly accessible). Perhaps unsurprisingly, all participating Member States have declared their intention to make use of their discretion.

Once transmitted, the data will be stored and analysed by the PIU. The purpose of this is to ‘identify persons who were previously unsuspected of involvement in terrorism or serious crime’ and require further examination by the competent authorities in relation to the offences listed in Annex II of the Directive. Contrary to the Commission’s assertions that PNR data will be used in different ways – reactively, pro-actively and in real-time – the focus on prevention is central. The analysis entails a risk assessment of all passengers prior to their travel on the basis of predetermined criteria to be decided by the respective PIU and possibly involving cross-checking with existing blacklists (Article 6(3)).

Furthermore, the PIUs will respond to requests by national authorities to access the data on a case-by-case basis and subject to sufficient indication (Article 6(2(b)). Nevertheless, processing should not take place on the basis of sensitive data revealing race, ethnic origin, religion or belief, political or any other opinion, trade union membership, health or sexual orientation etc. (Recital 20). According to Article 12, the initial retention period is six months, after which PNR data will be depersonalised, meaning that the PIU is entrusted with the task of masking out the names, address and contact information, payment information, frequent flyer information, general remarks and all API data. This process should not be confused with anonymisation, as the data could be re-identifiable and may still be used for criminal law purposes under ‘very strict and limited conditions’ (Recital 25). Therefore, upon expiry of the six-month retention period, disclosure of the full PNR data is permitted if so approved by a judicial authority or another national authority competent to review whether the conditions have been met and subject to information and ex post review by the Data Protection Officer of the PIU (Articles 12(3) and 5).

3. Privacy and surveillance of movement

The challenges that the development of the EU PNR system poses to the protection of privacy and data protection rights are acute. In essence, as with thePNR Agreements, the Directive allows the systematic, blanket and indiscriminate transfer, storage and further processing of a wide range of personal data of millions of travellers from and to the EU. Drawing from Digital Rights Ireland and the recent opinion of AG Mengozzi on the EU-Canada PNR Agreement, the interference with the rights to privacy (Article 7 EUCFR and 8 ECHR) and data protection (Article 8 EUCFR) is particularly serious. On the basis of the data collected, which include biographic information, credit card details and contact information, law enforcement authorities shall be able to compile a rather complete profile of travellers’ private lives.

The involvement of the private sector in the fight against terrorism and serious crime is considerably extended, particularly if one takes into account that the obligations on air carriers are extended to non-carrier economic operators (e.g. travel agencies). In addition, the inclusion of intra-EU flights within the scope of the Directive significantly expands the reach of surveillance. Indeed, back in 2011, it was noted that intra-EU flights represent the majority of EU flights (42%) followed by international flights (36%), and only 22% of flights operate within a single Member State (Council Document 8016/11). In this framework, the movement of the vast majority of travellers, including EU citizens, is placed under constant monitoring, irrespective of the fact that they are a priori innocent and not suspected of any criminal offence. In fact, the operation of the PNR scheme signifies the reversal of the presumption of innocence, whereby everyone is deemed as a potential security risk, thus necessitating their examination in order to confirm or rebut this presumption. Besides, there is no differentiation between flights transporting persons at risk and others.

Furthermore, the risk assessment will take place in a highly obscure manner, particularly since the Directive fails to prescribe comprehensively and in detail how the data will be analysed. The underlying rationale is the profiling of all passengers and the identifying of behavioural patterns in a probabilistic logic, but nowhere in the Directive it is indicated that this is indeed the case. This lack of clarity raises concerns considering that the recently adopted Data Protection Directive includes a definition of profiling (Article 3(4)). Moreover, it is stated that ‘relevant databases’ may be consulted, however, it is not clear which these are. For instance, a possible examination on a routine basis of the databases storing asylum seekers’ fingerprints’ or visa applicants’ data (Eurodac and VIS respectively) will frustrate their legal framework, resulting in a domino effect of multiple function creeps. It may even grow the appetite for Member States to desire the systematic processing of EU nationals’ personal data in centralised databases in the name of a more ‘efficient’ fight against terrorism.

This ambiguous modus operandi of PIUs may even call into question the extent to which the interference with privacy is ‘in accordance with law’ (Article 8(2) ECHR) or in EU terms ‘provided for by law’ (Article 52(1) EU Charter). According to settled case law of the ECtHR, every piece of legislation should meet the requirements of accessibility and foreseeability as to its effects (Rotaru v Romania). The lack of clear rules as to how the processing of data will take place may suggest that travellers cannot foresee the full extent of the legislation.

Another contested issue is the ambiguous definitions of terrorism and serious crimes at EU level. The offences falling under the remits of terrorism are currently revised, which had led to criticism for lack of clarity, whereas the definition of serious offences (acts punishable by a custodial sentence or detention order of a maximum period of three years or longer) constitutes a relatively low threshold, particularly in those Member States where domestic criminal law allows for potentially long custodial sentences for minor crimes. In addition, as regards the conditions of access by national competent authorities, the requirement that the request must be based on ‘sufficient indication’ seems to falls short of the criteria established in Digital Rights Ireland. The threshold is particularly low and may lead to generalised consultation by law enforcement authorities, whereas it is uncertain who will check that there is indeed sufficient indication. As for the offences covered by the scope of the Directive, although Annex II sets out a list in this regard, PNR data could still be used for other offences, including minor ones, when these are detected in the course of enforcement action further to the initial processing.

Moreover, in relation to the period for which the data will be retained, it appears that the EU institutions by no means have a clear understanding of what constitutes a proportionate retention period. For instance, the 2007 proposal envisaged an extensive retention period of five years, after which time the data would be depersonalised and kept for another eight years, whereas the 2011 proposal prescribed a significantly reduced initial retention period of 30 days, after which the data would be anonymised and kept for a further period of five years. In its General Approach (Council Document 14740/15), the Council called for an extension of the initial retention period to two years, followed by another three years of storage for depersonalised data. A more privacy-friendly approach can be found in an Opinion of the Council Legal Service dating from 2011, according to which the data of passengers in risky flights would be initially retained for 30 days and then be held for an overall period of six months (Council Document 8850/11in German). Some Member States supported a retention period of less than 30 days (Council Document 11392/11). Although it is welcomed that there are two sets of deadlines and, more importantly, that re-personalisation may take place only under limited circumstances. However, there is no indication of why the chosen retention periods are proportionate. Furthermore, an approach suggesting a differentiation between flights at risk or not at risk, with different retention periods, seems more balanced.

4. Free movement and citizenship concerns

In addition to the privacy challenges highlighted above, another point of concern is whether the processing of PNR data, including on intra-EU flights, could infringe free movement enjoyed by EU citizens. In this respect, the Commission Legal Service found that the EU PNR does not obstruct free movement (see Council Document 8230/11, which is partially available to the public, although the outcome of the opinion is attested in Council Document 8016/11). Nonetheless, the Parliament managed to include a reference that any assessments on the basis of PNR data shall not jeopardise the right of entry to the territory of the Member States concerned (in Article 4). The extent to which this reference is sufficient is doubtful.

According to Article 21 of the Schengen Borders Code, police controls performed in the territory of a Member State are allowed insofar as they do not have the equivalent effect of border control. Such an effect is precluded when, inter alia, the checks are carried out on the basis of spot-checks. In Melki, the CJEU found that ‘controls on board an international train or on a toll motorway’ limiting their application to the border region ‘might (…) constitute evidence of the existence of such an equivalent effect’ (para 72). By analogy, the focus on controls at the border area to the systematic manner set out in the directive, could have the equivalent effect of a border check. The lack of any differentiation between flights at risk or not at risk (an approach that was also favoured by the Council Legal Service, Council Document 8850/11) and the fact that member States are left entirely free to determine the extent to which they monitor flights to and from other Member States could enhance the risk of falling into the category of controls with an equivalent effect to border control.

5. Conclusion

The EU PNR Directive is yet another example of how the counter-terrorism rhetoric outweighs serious fundamental rights concerns in the name of ensuring security. The storyline is well-known: after a terrorist attack, numerous ideas – either incorporated in legislative proposals that have stalled or which were ultimately too ambitious and controversial to be presented in the first place – feature on the EU agenda. The EU PNR initiative was buried due to privacy concerns and was brought back from the dead when the circumstances matured. Soon national law enforcement authorities will put their hand into the passengers’ data jar and will deploy their surveillance techniques on an unprecedented and unpredictable scale.

By internalising US standards, the EU puts the privacy of individuals under threat. The new instrument does no longer target third-country nationals only, but also EU citizens, thus marking the end of an era where instruments were used ‘solely’ on foreigners. Undoubtedly, there is a strong ‘momentum’ for justifying mass surveillance practices. In waiting for the ruling on the EU-Canada PNR Agreement, as well as the ruling on Tele2 Sverige (following up on Digital Rights Ireland), one can only hope that the CJEU will uphold its inspiring reasoning and reiterate the important limits placed on deploying surveillance practices, by giving proper weight to the fundamental right to the protection of personal data.


By Maxime Lassalle
On 8 September 2016, Advocate General (AG) Mengozzi delivered his much awaited opinion on the agreement between Canada and the European Union on the transfer and processing of Passenger Name Record (PNR). It follows the European Parliament’s resolution seeking an Opinion from the Court of Justice of the European Union (CJEU) on the compatibility of the agreement with the Treaties. Even though the opinion concludes that the agreement has many loopholes, it could disappoint those who were expecting a strong condemnation of PNR schemes as such.

This blogpost intends to present the context of this procedure and the main elements of the AG’s opinion before analysing them. The question of the appropriate legal basis for the agreement, also raised by the Parliament, will not be addressed. However, before turning to the AG’s opinion, we need to briefly sketch the background of the proposed agreement.

The context

Today, in the absence of a PNR agreement with the EU, Canadian authorities apply their own PNR system unilaterally to air carriers established in the European Union (EU) which provide flights to Canada. This means that air carriers have to transfer PNR data (para. 7 of the AG’s opinion) to the extent that it is collected and contained in their automated reservation systems and departure control systems (para. 19). According to the Commission, the adoption of PNR systems is necessary to balance the legitimacy of the requests for PNR data in the fight against terrorism and the need to protect personal data of EU citizens from abusive access. As a result of the Lisbon Treaty, the adoption of PNR agreements now also requires the consent of the European Parliament (EP) (Article 218(6)(a)(v) of the Treaty on the Functioning of the European Union (TFEU)), and it is no secret that the EP is quite reluctant to adopt data retention schemes.

For a long time the EP has been requesting the Commission to provide for evidence that PNR schemes are necessary and in particular that the processing of Advance Passenger Information (API) would not be sufficient to reach the same objective of fighting terrorism and serious crime (for example here andhere). API are one of the 19 categories of PNR data and are limited to the identification of the travelers (name, date of birth, gender, citizenship, and travel document data) while PNR data encompass a much broader range of information (food habits, seating information etc.).

Nevertheless, the Commission ignored this request for evidence and proposed in 2013 a Council decision on the conclusion of a PNR agreement with Canada. This proposal was seriously criticized by the European Data Protection Supervisor (EDPS), also questioning the necessity of PNR schemes. Even though in the past, the Parliament had, albeit reluctantly, given its consent to similar PNR agreements (see the EU-US Agreement and the EU-Australia Agreement), this time it persisted and on 25 November 2014 it decided to refer the proposal on the agreement with Canada to the CJEU for it to assess the compatibility of this proposed agreement with the provisions of the TFEU and the Charter. Clearly, this move of the Parliament was inspired by the activism of the CJEU which had proved to be extremely demanding on the protection of personal data in the framework of the fight against terrorism in its famous Digital Rights Ireland case (DRI, commented on this blog).

The AG’s general considerations on PNR schemes

Let us now have a closer look at the (lengthy) opinion of the AG. Before analyzing the agreement, the AG assesses the intrusiveness of the PNR schemes as such, in relation to the right to data protection and the right to privacy. PNR data consist of 19 categories of personal data including data which ‘might provide information concerning, in particular, the health of one or more passengers, their ethnic origin or their religious beliefs’ (para. 169). The processing of these data therefore constitutes an interference which is of a ‘considerable size’ and ‘a not insignificant gravity’ (para. 176). This system is ‘capable of giving the unfortunate impression that all the passengers concerned are transformed into potential suspects’ (para. 176). However, the interference does not reach a level where the essence of the fundamental rights is harmed, because the PNR data do not permit to draw precise conclusions concerning ‘the essence of the private life of the persons concerned’ (para. 186). To justify the interference caused by the processing of PNR data, PNR schemes, should be properly provided for by law, such as an EU agreement adopted by the Council and approved by the EP (paras. 191-192), and meet an objective of general interest, namely the objective of combating terrorism and serious transnational crime (para. 194).

The AG’s general considerations on the standard to be applied to this unprecedented case

Following a classical reasoning on the assessment of the proportionality of the interference (see for example Schwarz, C‑291/12, para. 53), the AG explains that the proposed agreement ‘must also consist of the measures least harmful […] while making an effective contribution to the public security objective pursued by the agreement envisaged’. Provided that there are alternative measures which would be less intrusive, ‘those alternative measures must also be sufficiently effective’ in order to be considered as serious alternatives (para. 208). However, the definition of what is “sufficiently effective” is not given by the previous case law, neither that of the European Court of Human Rights (ECtHR) nor that of the CJEU. For the AG, the effectiveness of these alternative measures must ‘be comparable […] in order to attain the public security objective pursued by that agreement’ (para. 208). This standard of comparability is set by the AG himself. This was not evident as he could also have considered that less effective measures are still sufficiently effective. Requesting comparable effectiveness is a first. Usually in the reasoning, it is easy to decide whether there alternative measures are sufficiently effective or not (see for example Saint-Paul Luxembourg S.A. v. Luxembourg, para. 44). For measures of secret surveillance, it seems more difficult. The comparability criteria may be a way not to address a difficult question.

The AG acknowledges the ability of the interference to achieve the public security objective based on statistics communicated by the United Kingdom Government and the Commission concerning the Canadian authorities’ best practices (para. 205). Between April 2014 and March 2015, thanks to PNR data, 9,500 targets were identified, among them 1,765 persons were subjected to more thorough checks and 178 were arrested for a serious transnational criminal offence, connected in particular with drug trafficking (para. 262). However, the AG does not take into account that the statistics which were presented to the Court do not indicate the amount of data which was necessary to identify these targets. Moreover, one could note that according to the statistics no terrorist was identified, which is quite surprising for a scheme whose main purpose is precisely to identify people related to terrorism. The AG was obviously satisfied with the fact that PNR schemes are effective against organized crime.

The AG goes on addressing the specificity of PNR schemes, namely that it is their very nature to be based on profiling methods, by a comparison of the PNR data with scenarios or predetermined assessment criteria and that PNR data processing can lead to ‘false positive “targets” being identified’ (para. 255). This specificity of PNR schemes, which have never been assessed by the CJEU, made it necessary for the AG to detail the conditions under which PNR schemes could be considered as proportionate. In order to do so, he suggests to adapt a standard used by the ECtHR in Zakharov v. Russia, namely the standard of ‘reasonable suspicion’. For the AG, these procedures should manage to target ‘individuals who might be under a ‘reasonable suspicion’ of participating in terrorism or serious transnational crime’ (para. 256). The application of this standard is ambitious. Indeed, Judge Pinto de Albuquerque, in his dissenting opinion in Szabò and Vissy v. Hungary, had feared that this standard would be replaced by an ‘individual suspicion’, a lower standard, for surveillance measures whose purpose is to fight terrorism. However, this standard is used to limit the access to personal data by law enforcement authorities (an idea also present in the DRI case, para. 60-62). And yet the purpose of PNR schemes is not to create a pool of information available under strict conditions to law enforcement authorities, but to allow the Canadian competent authority, namely the Canada Border Services Agency, to use data mining procedures in order to discover new persons who were not previously suspected. Hence, the application of the standard of the ‘reasonable suspicion’ seems impossible as such: the limitation of the access to the data is not compatible with the idea, accepted by the AG, that PNR schemes need to process all the data that are available. The AG nevertheless tries to adapt the standard by proposing three principles.

The first principle is that the assessment criteria used to analyse the PNR data should not ‘be based on an individual’s racial or ethnic origin, his political opinions, his religion or philosophical beliefs, his membership of a trade union, his health or his sexual orientation’ (para. 258). The AG obviously fears discriminatory measures based on the processing of PNR data. The second principle, which is in line with the new principles proposed by Directive 2016/680 (i.e., the new Directive on data protection for police and criminal justice sector) is that the result of the automatic processing of data must be examined by non-automatic means (para. 259). The third principle is that the functioning of the automatic means should be checked regularly by an independent public authority (para. 259).

The AG’s proportionality test

After these general considerations, the AG starts his proportionality test. In the opinion nine points are considered separately (para. 210). From this analysis, three main elements deserve to be emphasized.

The first important point is that the AG accepts PNR schemes as a matter of principles. He considers that, excluding sensitive data, all categories of PNR data are considered relevant for the purpose of the envisaged agreement. Sensitive data are defined in Article 2 (e) of the envisaged agreement as ‘information that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, or information about a person’s health or sex life’. The processing of sensitive data is allowed by the envisaged agreement but, for the AG, this is not acceptable as it creates a risk of stigmatization (para. 222). What is more, the fact that these data are excluded from the PNR agreement with Australia shows that the transfer of sensitive data is not necessary to pursue the objective of the scheme (para. 222). This appreciation of the AG is a direct consequence of the first of the three principles he established.

Still on the categories of data, the opinion brushes away the criticism of both the EP and the Article 29 data protection Working Party requesting evidence that the transfer of less data, for example only of API, is not sufficient to meet the objective of the proposed agreement. According to the AG, ‘data of that type does not reveal information about the booking methods, payment methods used and travel habits, the cross-checking of which can be useful for the purposes of combating terrorism and other serious transnational criminal activities. Independently of the methods used to process that data, the API data […] are therefore not sufficient to attain with comparable effectiveness the public security objective pursued by the agreement envisaged’ (para. 214).

Even though all these data are transferred to the Canadian authority irrespective of any indication that the persons concerned may have a connection with terrorism or serious transnational crime (para. 215), the purpose of PNR schemes is to identify persons who were ‘not known to the law enforcement services who may nonetheless present an ‘interest’ or a risk to public security’ (para. 216). For the AG, bulk transfers of data are then necessary. However, he considers the definition of certain categories of data as too vague. For example, heading 17 of the annex, on ‘general remarks’, covers all ‘supplementary information apart from that listed elsewhere in the annex to the agreement envisaged’ (para. 217). Consequently, it is likely that air carriers will transfer all the data that they own, and not only the data that are necessary for Canadian authorities (para. 220).

In addition, the AG’s opinion considers that the scope ratione personae of the agreement envisaged is not too broad and that the massive and indiscriminate transfer of personal data is necessary. If, in theory, it could be possible to imagine a PNR data transfer system which distinguishes passengers according to specific criteria, these systems would never be as effective as PNR data schemes in combating terrorism and serious transnational crime (para. 243). The AG also underlines that consumers of commercial flights voluntarily use a mode of transportation ‘which is itself, repeatedly, unfortunately, a vehicle or a victim of terrorism or serious transnational crime, which requires the adoption of measures ensuring a high level of security for all passengers’ (para. 242).

These first considerations are very important as they show that in principle, for the AG, massive transfer and processing of PNR data is not disproportionate as such. If the undifferentiated and general nature of the retention of the data of any person using electronic communications in the Union was one of the main reasons why Directive 2006/24/EC was considered as going beyond what was strictly necessary (para. 59 of the DRI case), such data retention schemes are possible as long as they respect strict conditions (see the opinion of AG Saugmandsgaard Øe on the joined cases Tele2 Sverige AB and Secretary of State for the Home Department, commented on this blog). The fact that AG Mengozzi accepts the principle of large scale transfer of PNR data is thus not so surprising.

Once this step was made and given the specificity of the case, he needed to create specific conditions under which PNR schemes are proportionate. In addition to the loopholes already explained, these conditions are further elaborated in the two remaining important points of the opinion.

The second important point is that the agreement envisaged should justify the duration of data retention. The AG regrets that the agreement envisaged ‘does not indicate the objective reasons that led the contracting parties to increase the PNR data retention period to a maximum of five years’ (para. 279). He adds that such a long period of retention of the data exceeds what is necessary, particularly because all the data are retained for the same duration (para. 284) and because the masking procedure is incomplete and does not fully ensure the depersonalization of the data (para. 287).

This point is significant as this is the only element in the AG’s opinion which is very critical of PNR schemes in general and which puts the PNR directive at risk. This question was also a key issue in the DRI case. In Directive 2006/24/EC the data retention period of a maximum of two years without distinguishing categories of data on the basis of their usefulness was not based on objective criteria and was therefore excessive (para. 64 of the DRI case). This threatens the validity of the PNR Directive. Indeed, Article 12 (1) of this Directive provides for a duration of five years, without distinguishing categories of data and explaining the reasons for such a long retention. Noticeably, its depersonalisation procedure seems more in line with the assessment of the AG, particularly because more data elements are masked (Article 12 (2) of the Directive, para. 287 of the AG opinion).

The last important point relates to the serious doubt of the AG concerning the level of protection granted by Canada. The opinion is indeed the most critical when it comes to the international nature of the agreement. This is not that surprising given that the Court recently adopted a very demanding position on bulk transfers of data to third countries (in the case Schrems, commented on this blog here). The AG acknowledges that the Court ‘cannot express a view on the legislation or the practice of a third country’ (para. 163). However, the terms of the agreement themselves should have been formulated in such a way that no discretion would be left to Canadian authorities as for the applicable level of protection (para. 164).

For the AG, the access to the data and the use of the transferred data by Canadian authorities is not sufficiently regulated in the envisaged agreement. It leaves to Canada the entire discretion to determine what officials and what competent authorities are allowed to access the data (paras. 250 and 267). Similarly, the envisaged agreement does not stick to a strict principle of purpose limitation as the processing of PNR data is not strictly limited to the fight against terrorism and serious crime (paras 236-237). This is aggravated by the fact that the offences which belong to the categories of terrorism and serious crime are not exhaustively listed (para. 235). Concerning the use of the data, the AG considers that the possibilities of disclosure and subsequent transfer of the PNR data is not sufficiently framed. Indeed, Articles 18 and 19 of the agreement envisaged allow the disclosure and subsequent transfer of the PNR data to other government authorities in Canada and could be used to circumvent the level of protection afforded in the EU (para. 296). As a matter of fact, no independent authority or judge would check the appreciation of the Canadian competent authority that the authority to which the data are transferred can afford an equivalent level of protection (para. 300). The AG concludes that all these points need to be more detailed in the agreement in order to make sure that the level of protection of data ensured in Canada is equivalent to the level of protection ensured in the European Union. Following the previous case law of the Court, particularly the DRI case, the level of protection ensured in the EU is quite demanding and the respect of same level of protection has to be ensured before transferring personal data to third countries (see in particular para. 96 in Schrems).

Finally, the AG points out that the mechanism for detection and review of any violations of the rules of the agreement envisaged affording protection of passengers’ privacy and personal data is not effective because it does not belong to a fully independent and impartial supervisory authority (para. 315). This last point reminds the Commission that the mechanisms of control in the third country must be insured by a sufficiently independent body. This reminder is interesting as the new ‘privacy shield’ replacing the safe harbor is criticized for providing a right to review only through an ombudsman whose independence and powers are questionable.

Some comments

In his reasoning, the AG addresses issues linked to the very nature of PNR schemes and the solutions he proposes do not threaten the principle of PNR schemes. Even though this opinion could seem at first disappointing for those who were expecting the AG to condemn PNR schemes, it appears that this ‘implicit acceptance’ of PNR schemes follows the general principles created by the Court but simply innovates and addresses the new issues that had not been addressed so far with more consideration for the necessity to provide for effective tools to fight terrorism and serious crime.

Even though a lot of questions had to be addressed by the AG, there is one which is of paramount importance. Ever since its DRI case, the Court has developed a strong focus on the guarantees concerning the access to personal data by law enforcement authorities and the AG had to adapt the requirements of the Court to PNR schemes. The attempt of the AG to adapt the standard of the ‘reasonable suspicion’ shows that the applicability of guarantees to law enforcement authorities’ access to data from different data retention schemes is a question which would deserve more attention. Generally speaking, the ECtHR considers that to assess the existence of a reasonable suspicion, it is necessary to check ‘whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security’ (para. 260 of the case Zakharov v. Russia). The problem with PNR schemes is that the suspicion is not prior to the collection and processing of PNR data but discovered as a result of this collection and processing.

This question differs from the ones the Court has previously addressed in its case law, in particular in the DRI case. However, such an issue also exists in other areas. For instance, based on the European system of prevention of money laundering and terrorist financing, financial institutions have to monitor the transactions of all their clients and have the duty to report suspicious transactions. The control of suspicious transactions by these financial institutions also relies on mechanisms of data mining. The processing of personal data is made by private parties, namely financial institutions. Law enforcement authorities can in theory only obtain these data once financial institutions have reported a suspicion (this is, however, something that the Commission would like to change in order to facilitate the access to the data for the Financial Intelligence Units, see its proposal). Consequently, only the financial institutions, which collect anyways these data for the purpose of their economic activities and are subjected to the data protection framework provided for by Directive 95/46/EC, can access these data. This appears to be a safeguard against abusive access from law enforcement authorities. As a matter of fact, when law enforcement authorities access the personal data, after a report from a financial institution, there is already a degree of suspicion. This is probably more in line with the standard of ‘reasonable suspicion’. However, in this field, too, there is a massive collection of personal data which are analysed mainly through data mining procedures in order to discover suspicious transactions.

For PNR data, according to the agreement with Canada as well as for the new PNR Directive, air carriers companies do not have to analyse the data by themselves, but have to transfer all the data respectively to the Canada Border Services Agency or to the new ‘Passenger Information Units’ which will analyse all these data, through data mining procedures. From this data processing suspicions will then emerge which will be further analysed by law enforcement authorities.

Those two examples show that personal data are not only used a posteriori, once criminal investigations are open when a suspicion already exists but are also used for data mining processes with the purpose of discovering new suspicions. It might be that there is a difference based on whether private parties or public authorities are in charge of the data mining procedures. However, in both cases there is no previous ‘reasonable suspicion’; suspicions emerge following a massive monitoring of personal data.

At the end of the day, once the principle of massive surveillance schemes based on data mining mechanisms is considered to be acceptable as such, the standard of the ‘reasonable suspicion’ is overrun and has to be replaced by principles and other guarantees preventing any abuse, provided that this is possible. Are the three principles proposed by the AG sufficient? Hopefully the Court will address this key issue in a clear and detailed way.

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National Courts and EU Trade Policy Powers: the EU/Canada trade deal and the German Constitutional Court

by Douwe Korff,

Emeritus Professor of International Law, London Metropolitan University; Associate, Oxford Martin School, University of Oxford

One of the big issues on the EU’s agenda at present is whether to sign and provisionally apply the Canada/EU free trade agreement, known as ‘CETA’. The division of power between the EU and its Member States determines whether Member States can veto some or all of this deal, potentially complicating this process – frustrating supporters of the deal, but emboldening its critics.

Moreover, the dispute over CETA has broader implications, most notably for the controversial EU/US trade deal under negotiation (‘TTIP’) and any trade deal between the EU and UK after Brexit. While the EU’s Court of Justice will soon rule on the division of powers between the EU and its Member States as regards the EU/Singapore free trade agreement (for the background to that case, see here; for the CJEU hearing, seehere), the immediate question is signing and provisionally applying CETA.

For the moment, the parliament in the Belgian region of Wallonia has held up the EU/Canada deal, but my focus here is the legal angle. While we await the CJEU’s ruling on the similar EU/Singapore deal, national courts have got involved in this issue. Last week, the German Constitutional Court refused to issue an interim order prohibiting the German Government from signing the CETA Agreement (BVerfGE of 13 October 2016; English summary here). The judgment sets a precedent for the legal issues that might arise with TTIP and Brexit, and so is worth further examination.

The decision

The decision was not about the issue of whether CETA (as initialled by Canada and the EU) was compatible with the German Constitution, but about whether the German Constitutional Court (“the Court”) should issue an interim order or injunction (einstweilige Anordnung) prohibiting the German Government (“the Government”) from even signing the Agreement. The Court emphasised that it was the Court’s standing practice to only issue such an injunction in relation to a proposed treaty if it was obvious that the treaty would irreversibly violate the Constitution (or constitutionally-protected rights of individuals) and if it was imperative that this be stopped immediately. On the other hand, possible but as-yet-not-materialised or reversible risks to such rights should be balanced against the importance of the matters to be covered by the treaty; and the Government in principle had a very wide margin of discretion in such matters. (Paras. 34 – 36)

The Court refused to issue the injunction for the following reasons in particular (my selection):

– The signing of CETA by Canada, the EU and the Member States would only result in the provisional application of the Agreement; it would only come into full force upon ratification by the parties – and crucially, the German Government (like any other Member State Government) could, until and unless the Agreement was ratified by all parties, terminate the application of the Agreement at any time, by means of a simple declaration to that effect to the other parties. The signing of CETA by the Government therefore did not irreparably risk any violation of constitutional rights. (Para. 38; cf. the last bullet-point under the last indent, below)

– The Court clearly has serious doubts as to whether the EU has competence in relation to investor protection in various areas, in particular also as concerns workers’ health and safety regulations. (Para. 54 – 57)

– The Court clearly also has serious doubts as to whether the EU can lawfully transfer “sovereign rights [Hoheitsrechte] in relation to judicial and quasi-judicial dispute resolution systems [Gerichts- und … Ausschusssystem]” to other systems (i.e., to the proposed investor-state dispute settlement (ISDS) “court” mechanism). (Para. 58) It was “not completely inconceivable” that the proposed (revised) ISDS mechanism could be held to violate the principle of democratic legitimacy (das Demokratieprinzip). (idem; see also para. 65)

– However, according to the Court, the above risks can be prevented in practice by various means (which, the Court implies, the German Government therefore must employ), i.e.:

  • According to the Court, some of the risks can be prevented by means of the declarations already issued by the European Council, which (the Court tentatively accepts) ensure that with the signing of the Agreement only parts of that agreement will enter into (even provisional) force. The Court held that in many respects “reservations” (Vorbehalte) are already in place as concerns the application of certain parts of the Agreement. (Para. 69: see there for a list of these areas).
  • The Court “assumes” (read: effectively demands) that the German Government will ensure, by these same means, that certain parts of CETA “in particular” “will not be included in the provisional application [of CETA, upon signature by the parties]”. In these not-to-be-applied matters, the Court expressly includes “the rules on investment protection, including the [investment dispute resolution] court system.” (Para. 70)
  • The Court suggests that, at least while CETA would be only provisionally in force, Germany can demand that any decisions by the investment dispute resolution “court” will have to have the unanimous agreement of the EU Council – i.e., that Germany is given a right of veto over any such decisions. (Para. 71)
  • If those measures were to not suffice, Germany can “as a last resort” use its right to terminate the Agreement (see the first indent, above). However, the Court feels that the interpretation of the Agreement to the effect that a State Party has this right (to terminate it in respect of that state while it is still only provisionally in force) “is not binding”, even though the Government has made a convincing case for it.

The Court therefore demands of the Government that it (the Government) “must clarify this interpretation of the Agreement in an international-legally appropriate way” and “inform its Treaty Partners of this [interpretation].” (Para. 73)


It would seem to me that the signing of CETA subject to the conditions imposed by the German Constitutional Court, would address many of the issues raised by activists:

– The contentious investment dispute resolution “court” would not become operational;

– If it ever were to become operational, Germany (and if other Member States were to adopt the same approach, those other Member States too) would have a veto over any decisions of that (quasi-) “court” that would impinge on rights and interests protected by its (their) constitution(s); and

– If in spite of these safeguards, those constitutionally-protected rights and interests were to still be unduly affected by the dispute resolution system (or any other aspect of the Agreement), Germany (and any such other Member State) could still exit the Agreement (even if that meant it would altogether have to end functioning).

Perhaps current opponents of CETA could live with it operating forever on such a “provisional” and conditional basis?

Establishing the European Border and Coast Guard: all-new or Frontex reloaded?


by Herbert Rosenfeldt, (Research Assistant and PhD candidate, University of Passau)


Attending a birthday party at a remote checkpoint at the Bulgarian external border with Turkey does not sound like fun. Unless you are the adventurous type, you would probably hesitate to join in if it was not for someone special. Indeed, last Thursday high ranking EU and Member States’ officials visited Bulgaria’s Kapitan Andreevo Border Checkpoint to inaugurate the new European Border and Coast Guard Agency a.k.a. Frontex.

This is so far the most visible sign of the coming into force of the European Border and Coast Guard Regulation on the same day. Not lacking pathos or high expectations (Donald Tusk: “To save Schengen, we must regain control of our external borders. A new European Border and Coast Guard Agency is being created”), the new EBCG seeks to reinforce external border control against the background of last year’s migratory pressure put on the southern and south-eastern EU Member States with external Schengen borders. According to EU officials’ analyses, national border guards had been unable or unwilling to “protect” the Schengen area effectively by stopping the influx of irregular migrants. Frontex, on the other hand, was held to have been too ill-equipped in terms of powers, personnel and equipment to render sufficient support or remedy the situation. There is a simple, perhaps simplistic, rationale behind the new EBCG – one that gathered broad consensus among Member States and EU institutions resulting in a fast track legislative procedure of less than a year. The stronger EU external border control, the less permeable borders are for migrants; the smaller the number of migrants arriving, the smaller the problems within the Schengen area. Those problems comprise allocating asylum seekers and processing their claims, providing food and shelter, or safeguarding internal security and freedom of movement. The focus on external borders has been accurately criticised, inter alia, here and here.

Is the new EBCG truly a “milestone in the history of European border management”, as suggested by birthday guests but contested by others? Is the new agency something special at all? Hence is it worth joining the congratulants (if belatedly)? What birthday wishes should be made? Surely only time and further in-depth analysis can tell. Steve’s earlier post here gave the broader picture of last year’s legislative proposals on border control and migration. For now, and after two preliminary thoughts, I would like firstly to make some observations on the changing concept of EU external border management. Secondly, I highlight some institutional changes. Thirdly and fourthly, I will focus on two much debated novelties in external border control: emergency interventions and the complaints mechanism in the context of Fundamental Rights accountability.

Towards Securitisation

The drafters of the new regulation were discernibly concerned by the loss of control at Europe’s southern and south-eastern borders. Adapting to the ongoing political discourse, the wording of the Regulation (Article 1, see also Articles 4 and 15) gives top priority to regaining and keeping control of the migration situation and to efficient border management. Migration challenges and potential future threats are mentioned in succession, followed by serious cross-border crimes. The aim to be achieved is a high level of internal security within the Union while safeguarding the free movement of persons within it. In a subtle way, this almost equates migratory pressure through irregular migration with potential threats to internal security and cross-border crime. In further construing Article 1 of the Regulation, it appears that affording international protection and protecting human rights are clearly no objectives of European border management. Rather, they are perceived as restrictions to securing EU borders.

Another feature of this security-orientated approach is new migration management support teams to be deployed in hotspot areas (Article 18). Support in processing asylum claims and returning third country nationals does not help to protect the Schengen area from migrants at first sight. However, if it is done rapidly in hotspot areas, migrants are effectively not entering the Schengen area, hence apparently more security. Along the same line of reasoning, increased capacities to support return operations (Article 18, 28 et seq.) reflect political demand for enforcing third country nationals’ returns.

Legal instruments rearranged

The law of EU external border control is no role model for legal clarity and certainty. Legal acts such as the Frontex Regulation have frequently been amended, and they are intertwined with various other EU legal acts. The new Regulation at least partly smoothes this scattered landscape by merging the Frontex Regulation and the Regulation on Rapid Border Intervention Teams into one. Furthermore, the Schengen Borders Code has been amended (see below). Although based on the same EU competence (Article 77 (2) (d) TFEU), applied at the external Schengen borders and closely related to the work of Frontex and the national external border guards, Regulations on EUROSUR and surveillance of the external sea borders remained untouched. Hence the legislator missed the opportunity to create a single comprehensible piece of legislation apart from the SBC, the latter covering other subject matters such as entry conditions of third country nationals and internal border controls anyway.

New concept of external border controls

Before, States with external Schengen borders were exclusively tasked with policing those borders. Under the Frontex Regulation, border control fell into the sole competence of the Member States. Frontex’s main task then was to render border control more effective by coordinating Member States’ joint activities and providing surveillance data, technical support and expertise. The common conceptual framework informing border controls, called “integrated management system for external borders” (now Article 77 (1) (c) TFEU), only featured in strategy papers and policy recommendations of the Commission and the Council such as the non-binding Updated Schengen Catalogue 2009.

The new EBCG consists of the EBCG Agency and the national border and coast guards. Although Member States retain primary responsibility for border management, there is a clear shift towards responsibility shared with the Agency (Article 5 of the Regulation). On scrutiny, the new system arranges the Agency and the Member States in a hierarchical order. It is the Agency’s task to establish a technical and operational strategy for integrated border management. All national strategies will have to comply with it. Although co-operation outside the Agency’s remit remains possible, this is limited to action compatible with the Agency’s activities. Therefore, there is not just well-known supremacy of EU law at work in this area of shared competences, but supremacy of the Agency’s strategies, broadly phrased tasks and objectives. On paper (see the eighth and eleventh recitals), the political development of integrated border management is left to the EU organs, whereas technical and operational aspects will be clarified by the Agency. The dividing line is of course far from clear. As a result, the Agency will almost inevitably assume a more proactive role.

In my view, shared responsibility serves as a chiffre to justify taking away Member States’ discretionary powers in border control. In practice, the Agency gains greater impact and tools of supervision and coercion, as will be seen below. Still, the new Regulation has to be given credit for legally defining components of European integrated border management for the first time ever.

Institutional changes

In short, Frontex becomes … erm … Frontex! Despite last week’s “all-new” rhetoric, little will change in the constitutional setting of the Agency. As a decentralised (i.e. regulatory) agency it remains an independent EU body with legal personality. Its headquarters will remain in Warsaw. The Agency’s official name, which nobody used before, changes to a shorter name, which probably nobody will use going forwards – and that is alright because it reflects that the Agency is not founded anew but continues all its activities, albeit with expanded tasks and more resources.

To this end, the Agency’s staff grows from 309 in 2015 to 1,000 in 2020. The number of Member States’ border guards deployed in EBCG teams remain subject to annual bilateral negotiations. At the same time, a rapid reaction pool of 1,500 European border guards as a standing corps operational within 5 days has been inscribed in the Regulation. The Agency continues to maintain a technical equipment pool composed of equipment owned by either the Agency itself or by the Member States. With an increase in budget to more than twice the amount of 2015 (€143.3 to €322 million in 2020), the Agency might actually start acquiring equipment on its own in the future.

Of the Agency’s tasks (see the long list in Article 8 (1) of the Regulation), most have been assigned to Frontex before. Characteristic of the new supervisory role are vulnerability assessments carried out by the Agency to evaluate the capability and readiness of Member States’ border guard to act in emergencies. The assessment might lead to binding recommendations by the Executive Director. To disregard them can eventually result in a situation requiring urgent action as described further below. Moreover, Frontex shall deploy liaison officers in the Member States monitoring and reporting on national external border management. It is true that command and control in EBCG operations remains with the host Member State. However, from now on, the host Member State has not only to consider the Frontex coordinating officer’s views, but also to follow them as far as possible.

Another noteworthy development concerns the Agency’s support rendered to Member States coping with migratory pressure at so-called hotspots. The existing provisions on hotspots in EU Decisions on relocation of asylum-seekers have been codified in Article 18 of the Regulation, which now assigns a supportive role to Frontex in migration management. This includes screening, registering and providing information to third country nationals on their right to apply for international protection. It further includes facilitating their return right from the hotspot area.

One might argue that the European Asylum Support Office is better placed to do all that. However, in my opinion the crucial question is to what extent any EU agency involved influences or determines the Member States’ decisions on entry, to afford international protection or to return migrants. Such executive powers have not been granted to EU institutions and therefore – at least by law – they remain firmly within the Member States’ jurisdiction. The provisions provide for tailor-made support teams coordinated by all relevant Union agencies under the auspices of the Commission. Thus, the new Regulation acknowledges the role of agencies and the significance of hotspots without clarifying much. It remains to be seen how the agencies will delineate their respective contributions. If you have always been looking for a legal definition of hotspot area, at least you will find one in the new Regulation (Article 2 (10)).

Situations requiring urgent action – right to intervene?

How to deal with emergency situations at the external borders of Member States unwilling to act – that was the only matter of serious contention during the legislative process. In normal operation and as before, a Member State at first formally requests the Agency’s support and the launch of EBCG operations (Articles 14 (1), 15 (1) and (2), 18 (1) et al). At the second stage, the Member State and the Executive Director agree on the operational plan (Article 16 (2)). Lastly, the host Member State itself retains command for the whole operation (Article 21 (1)). The Commission proposal for the Regulation challenged those safeguards for the Member States’ sovereign right to border protection. The Commission envisaged itself initiating emergency interventions conducted by the Agency and supported by the Member State concerned. Boldly, this was labelled the Agency’s “right to intervene”. Understandably, it stirred criticism among Member States.

The subsequent trilogue put things in order again: Now it is an implementing act of the Council (proposed by the Commission) which substitutes the Member State’s request at the first stage if (a) the State did not follow the recommendations resulting from vulnerability assessments or (b) it faces specific and disproportionate challenges at his external borders without requesting or supporting joint EBCG operations (Article 19 (1)). The implementing act of the Council authorises the Agency to take various measures. It is binding upon the Member State. In turn, it becomes evident that the Member State’s formal request in accordance with the normal procedure might no longer be as voluntary as the wording suggests. Because if joint European action is deemed necessary, there is always the possibility that an emergency intervention will eventually be initiated.

Yet, at the second stage, the Member State still has to agree on the operational plan submitted by the Agency (Article 19 (5)). This might be interpreted as linking emergency interventions to the Member State’s consent after all. However, in the light of the purpose of emergency interventions, I submit that the duty to fully comply with the Council decision and to this end cooperate with the Agency entails the duty to consent to the operational plan. Otherwise, it would always be possible for reluctant Member States to impede the whole procedure depriving it of much of its force.

For the implementation of the measures prescribed by the Council, the Member State concerned still acts as host state. As a consequence, that State retains command and control of the operations and can be held liable as in normal operations. It can be questioned whether an unwilling State should be forced to lead a joint operation in times of emergency. At the same time, however, it is most likely that different entities will be engaged in the process. The decision not to conduct operations or to request assistance is often taken at a high political level, whereas operational command is exercised within the national border guard authorities.

Lastly, Article 19 (10) most remarkably links the Member State’s non-compliance with the Council decision and failure to cooperate with the Agency to prospective national measures taken within the Schengen area. According to newly amended Article 29 of the Schengen Borders Code, the Council upon proposal by the Commission may recommend to Member States the reintroduction of controls at their internal borders if the Member State’s behaviour (a) puts the functioning of the area without internal borders at risk, and (b) leads to a serious threat to public policy or internal security. This mechanism can be triggered only 30 days after the Council takes its (urgent?!) decision. As a result, Member States that do not – for whatever reason – cooperate at their external borders in emergencies can de facto be temporarily excluded from the area of free movement. The much-stressed concept of solidarity (Article 80 TFEU) hence turns into its evil twin: showing solidarity means complying with the EBCG activities à la EU. It becomes the prerogative of the EU institutions to determine who is in solidarity, and the lack thereof entails serious consequences.

In sum, the new Regulation establishes a legal obligation to cooperate in situations requiring urgent action of the Member State concerned. If the State does not comply, there is no way to enforce this duty or to deploy EBCG teams on his territory against his will. The only sanction seems to urge other Member States to close their internal borders instead.

Human Rights complaints mechanism and accountability

When Frontex was established in 2004, the Fundamental Rights (FR) implications of its work had been completely overlooked. The founding Regulation did not contain any specific references to FR. Over the following years through a piecemeal approach, largely affirmative and declaratory FR obligations found their way into the Regulation. More importantly, Frontex drew up an FR strategy (followed by an action plan) in 2011. At the same time, a consultative forum and an FR officer were established to give advice on FR matters and strengthen FR compliance. With the new Regulation, there are minor improvements on the human rights record. Article 1 now mentions FR, they form part of compulsory reporting and evaluation schemes as set out in the operational plan, and there is a single comprehensive provision spelling out FR obligations (Article 34).

The Regulation finally introduces a FR complaints mechanism (Article 72, discussed here) as demanded by European Parliament, EU Ombudsman and Council of Europe since 2013. Any person directly affected by actions of staff during EBCG operations can file a complaint about FR violations with the FR officer. The FR officer is responsible for setting up the complaints mechanism, administering complaints and deciding on their admissibility. He or she then directs them to either the Executive Director or the competent national authority for them to decide on the merits and an appropriate follow-up. The FR officer then again monitors this decision as well as the follow-up.

In my view, the effectiveness of the mechanism depends on two preconditions. Firstly, the FR officer’s resources should increase significantly to stem the Herculean tasks ahead of him. Secondly, his institutional independency within the Agency has to be reinforced, bearing in mind that he is a member of staff and dependent on good working relationships with other members of staff. Several open questions remain. For example, the provision leaves open how the FR officer will enforce the appropriate follow-up by the Agency or the Member States. It does not make clear that the complaints mechanism does not affect other remedies, nor does it foresee an appeals procedure with an independent body. The FR officer and ultimately the Executive Director or the Member States authorities will have to answer difficult legal questions on who is “directly affected” by an action and who is responsible for it (see below). For the development of the law, it would have been better if a court or tribunal had had subsequent jurisdiction. So far, actions for annulment or damages (Articles 263, 268 TFEU) have not generated any EU case law regarding Frontex, and except for its judgment in Hirsi Jamaa, the ECtHR was not able to fill the gap neither.

“The extended tasks and competence of the Agency”, the 14th recital of the Regulation reads, “should be balanced with strengthened fundamental rights safeguards and increased accountability”. But does the new Agency live up to the claim? Apart from the complaints mechanism, the FR framework largely stays the same, and so does the general liability framework: The home Member State takes disciplinary action whereas the domestic laws of the host Member State determine criminal liability. It is also the host Member State incurring civil liability for the EBCG teams. The Agency itself incurs non-contractual liability according to the general principles of EU law (Article 340 (2) TFEU). There are no provisions determining which acts or effects of external border control are attributed to the Agency or to the Member States involved (a problem of multi-actor scenarios, where the 2011 ILC Articles on the Responsibility of International Organizations might be of help). Following recent revelations on the frequent use of firearms in joint operations, MEPs wrote to Executive Director Fabrice Leggeri asking for more information and general guidance on responsibilities in certain operational scenarios. The ignorance displayed by Frontex’s designated watchdogs (see Article 7 of the Regulation) is further evidence for the need of more transparency and legal clarity in this regard.


On the 6th of October 2016 the landscape of EU external border control did not change dramatically, but it did change. To repeat: No new agency has been founded, no EBCG under EU command and control was established, no right to intervene at Member States’ external borders against their will has been introduced. In fact and most notably, the Member States’ external border guard is placed under increased scrutiny of the EBCG Agency. Failure to comply with integrated border management standards could eventually lead to reintroducing internal border controls to the detriment of the disobedient Member State. At the same time, the Agency’s enhanced tasks and powers will go hand in hand with more responsibility and accountability, but the latter has yet to be improved. Although the complaints mechanism is a step in the right direction, its design could have been more effective. This holds true especially for the follow-up mechanism. In practice, much will depend on the Fundamental Rights officer’s assertiveness on the one hand, and the Executive Director’s responsiveness on the other hand.

After all, the distinguished guests to the celebrations at Kapitan Andreevo Border Checkpoint last week did not witness birth or rebirth, but rather Frontex’s coming of age both in terms of leverage and responsibilities. Frontex, I wish you well indeed.

Scotland and Brexit: Brave Heart or Timorous Beastie?


by Steve Peers

At the Scottish National Party (SNP) party conference yesterday, Scotland’s First Minister (Nicola Sturgeon) announced that the Scottish Government would issue a draft of a second independence referendum bill next week. She also announced that the Scottish government would soon table an alternative plan “to protect Scotland’s interests in [the EU] and keep us in the single market – even if the rest of the UK decides to leave”. This would entail “substantial additional powers for the Scottish Parliament”, namely all the Scottish powers that “currently lie with the EU – and significant new powers”, namely the power to negotiate international treaties and “greater powers over immigration”.

Implicitly the Scottish government is offering the UK government a choice: negotiate to ensure that Scotland stays in the single market as a distinct part of the UK, or face another independence referendum. I’ll examine the legal issues arising from these two options in turn, and conclude with some broader observations about the Brexit process compared to the prospect of Scottish independence.

Scotland in the UK – and the single market

Is EU single market participation possible if a) Scotland stays in the UK, and b) the UK as a whole is not in the single market anymore? Some people have called this prospect a ‘reverse Greenland’, referring to the deal whereby Greenland left the EU but Denmark stayed in. Given the huge differences between Greenland and Scotland, I suggest we call this idea by a different name: say the ‘Scottish Economic Area’. I have written about this prospect separately in iScot magazine, but I will summarise my points again here.

Only independent countries which are EU members can fully participate in EU membership. But in theory at least, a part of a non-EU country could participate in the internal market, even if the rest of that non-EU country did not. Of course, the EU and the UK’s Westminster government would have to consent to this in as part of their post-Brexit treaty, and it could only work if there was significant related devolution to Scotland, as the First Minister suggested.

What would it mean in practical terms? The ‘single market’ consists of the free movement of goods, services, persons and capital, which includes the freedom of establishment of companies and the self-employed. To facilitate all this, there’s extensive EU legislation setting common standards for many industries. The single market also includes common rules on competition law and state aid to industry. But a number of rules on other matters (such as trade with non-EU countries) are not necessarily part of it. Full participation in the single market goes further than a free trade agreement with the EU which the Westminster government currently seems likely to prefer, as it will abolish more non-tariff barriers to the trade of goods and services. For instance, most free trade agreements don’t give as much access to financial services markets as single market participation does. So if Scotland is in the single market and the rest of the UK is not, more financial services businesses may stay in Edinburgh, or move from London to Edinburgh rather than to the EU.

Is this feasible in practice though? The easy part would be applying EU laws in Scotland which only have domestic effect, like consumer, environmental and labour law.  When it comes to laws with a cross-border effect on trade between Scotland and the EU, such as financial services market access, it would be necessary to define exactly when a firm was based in Scotland (benefitting from single market participation in the Scottish Economic Area), and when it was based in the rest of the UK (subject to a less favourable trade agreement).

The most difficult issues relate to movement of goods and people. Would different rules on Scottish/EU relations compared to the relations between the EU and rest of the UK mean that there would need to be border controls between Scotland and the rest of the UK? On this point, the Westminster government has promised there will be no border controls between Northern Ireland and the Republic of Ireland, even though that border will become an EU/non-EU border.  Surely whatever deal is reached to this end could be adapted for use at the Scotland/England land border too.

The Scottish government would not have a direct role in EU decision-making. But it could be given the same role as Norway and Iceland have in their single market treaty with the EU (discussed further below): consultation on proposed EU laws, the power to reject them (although that’s subject to the risk of retaliation), and participation in the EFTA Court that decides on single market disputes as regards Norway and Iceland.

The suggestion above is undeniably complex, although the whole Brexit process is complex anyway. However, the idea isn’t all or nothing: it would be possible in theory for Scotland to participate fully in parts of the single market, rather than all of it like Norway and Iceland.

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Dublin ‘reloaded’ or time for ambitious pragmatism?


(Click here  to hear Francesco Maiani’s (Swiss Member of the Odysseus Network) intervention at the LIBE Committee of the European Parliament on this issue – 4:10 – 22:20)

While the largely failed relocation scheme of 2015 is still in force, the European Commission has put forward a proposal for revising the Dublin III Regulation. Since comments have already been made in the blogosphere (see Hruschka on this blog and Gauci) and a comprehensive study on the need to reform the system has been recently released by a member of the Odysseus Network and presented to the LIBE Committee of the European Parliament (see Maiani), this entry will not provide a general description of the proposal and focus instead on some selected aspects by putting forward some proposals to make the Dublin system less dysfunctional.

A plea against taboos and ‘conservative’ options

Many EU documents repeatedly underline that the Dublin system is a “cornerstone” of the Common European Asylum System (CEAS). Indeed, taking into consideration Article 78(2) TFEU, there is a need to organise the distribution of responsibilities  since the competence for assessing claims and the  provision of protection lie with Member States.  Despite this, we should not let Dublin become a taboo, impermeable to discussions on its past and current contents. If the so-called ‘cornerstone’ is ill-conceived, the overall structure of the CEAS becomes unstable, unfair and ineffective.

Drawing from private international law terminology, we can say that the main objective of Dublin is to prevent positive and (most commonly) negative conflicts of jurisdiction, by rapidly determining a single responsible Member State (MS). Decades of legal thinking and state practice show that any set of rules (both domestic or international) allocating jurisdiction should be based on rational criteria and on a reasonable degree of connection (i.e. genuine link) between the competent State and the situation at stake. Although due consideration must be given to the fact that “asylum jurisdiction” is a peculiar field of law and that the interests at stake are specific to this area, decision makers must take into account the principles of rationality, fairness and compliance.

More than twenty years of implementation of the Dublin system (see Guild and othersHruschka and Maiani) showed that, as currently framed, Dublin simply does not work, both in normal periods and in times of crisis. Among other things, the fact that no reasonable room is given to consider asylum seekers’ preferences or their prospects for integration creates an evident trend against spontaneous compliance and towards secondary movements.

The deficient system generates high costs of different natures, such as:

(a) waste of public money in repressive actions and in administrative as well as judicial procedures not producing durable results;

(b) diplomatic tensions between Member States;

(c) profit-making for criminal networks providing smuggling services;

(d) social exclusion and frustration for asylum-seekers (potentially leading to human rights violations or various forms of criminality);

(e) lack of integration, with increased costs for social services and public expenditure.

Against this background, a fresh and innovative approach was expected when the EU institutions finally recognised in 2015 the need for a general overhaul of the Dublin III Regulation. However, the proposal that is now on the table does not envisage an overall reframing of the system, but a rather modest introduction of several corrections (some more significant than others) to a bad architecture that is not fundamentally questioned.

The criterion of the “Country of first entry” or “the irrational rationale

The first point of the proposal deserving severe critique regards the way in which the Commission treats the allocation criteria and, in particular, the insistence on the questionable criterion of the country of first entry. The explanatory memorandum of the proposal underlines that, according to some MS, the criterion of first entry must be preserved and that alternative connecting factors (such as personal preferences) would add confusion and give the wrong signal that asylum seekers can choose their country of final destination. In the meantime, it is acknowledged that other MSs and relevant stakeholders (for instance UNHCR, para. 6, at 7;  specialised NGOs such as ECRE and others) called for a different vision, focusing on the preferences or characteristics of asylum seekers (in  view of their speedy and satisfactory integration).

Yet, the explanatory memorandum merges the personal preferences and the characteristics of asylum seekers in the same concept, and uses the same rationale to discard both the ‘free choice’ approach and the ‘personal characteristics’ approach. To make my point clear, merely subjective preferences are different than objective personal characteristics (liable to increase prospects of integration in the host MS): while the ‘free choice’ approach may be swiftly questioned as a solution for allocating people (although it should not be summarily discarded, as recently advocated by Maiani, at 46-48), the verification of a reasonable connection with a country is a totally different issue. Even more surprisingly, the Commission seems to ignore the indications from other parts of EU secondary law. For instance, Recital No. 34 of Decision No. 2015/1601 (establishing provisional measures in the area of international protection for the benefit of Italy and Greece) clearly states that:

“The integration of applicants in clear need of international protection into the host society is the cornerstone [sic] of a properly functioning CEAS”.

Following the same logic, the provision on the safe third country concept (defined in the Asylum Procedures Directive) underlines that the latter may be applied only if due regard is given to the existence of “a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country” [Article 38(2)(a)].

This being said, let us try to follow the reasoning of the Commission. What is the rationale behind the first country of entry criterion? Commentators agree on the fact that the drafters of the Dublin Convention and of the subsequent Dublin II and III Regulations intended to establish a linkage between the allocation of responsibility in the field of asylum and the respect of MS obligations in the protection of the EU external borders (as confirmed by the same communicationof April 2016, at 7). Put in another way, if a MS  lets an asylum seeker enter its territory, then it would be logical (sic!) to establish responsibility for assessing the asylum claim and, if the outcome is positive, to define that MS as the new place of residence for the beneficiary of international protection.

However, it is well known that the principle of non-refoulement is applicable on entry regardless of the efficiency of checks at the external borders. Likewise, the combined effect of current EU visa policy, EU carrier sanctions regimes and the nature of flows to Europe unavoidably overburdens frontline States (the number and identity of which may change in time). Thus, we can question whether the above mentioned rationale is…. rational! Or whether it is in line with the principle of solidarity and fair sharing of responsibility recognised in Article 80 TFEU. Would it perhaps sound malicious to advance the idea that this criterion and especially its continued maintenance are simply the result of the (undeclared) will of some MS to put the responsibility and the related burden of international protection on other MS?

A “genuine link” approach: not a panacea, but surely deserving of further enquiry

With the aim to be constructive, this article puts forward another approach for giving more weight to objective links between an asylum seeker and a given MS, which would favour his or her speedy and efficient integration. A series of objectively verifiable elements connecting an applicant with a certain MS can be proposed in order to establish the relevant jurisdiction, according to a ‘genuine link’ approach (see also here for further elaboration on this methodological proposal and on its potential benefits both for MSs and asylum seekers):

  • Wider family links: The Commission proposes to broaden the scope of ‘family members’ so as to include siblings, which is a positive step. In additional to that, taking into account the presence of relatives in a MS deserves a more careful consideration. In many countries of origin, relatives are as important in family life as core family members, due to the cultural concept of family and related moral obligations of mutual assistance and care. Besides, in occasions where the original nuclear family may be dispersed or deceased, the only form of family life available to the asylum seeker may be represented by a cousin, an aunt, a nephew or a grandparent. It is clear that this widened concept of family might be seen as “too generous” by MS, but considering wider family links for Dublin purposes should be at least further discussed. Some categories of relatives could also be included in the alternative criteria of verified sponsors (see below);
  • Language skills: Some States whose official language is widely spoken outside of Europe (for instance, English or French) might fear to be penalised by this criterion. Nevertheless, it could pragmatically work even for indicating a MS where the population in general and civil servants in particular are usually fluent with a second language (for instance, English in some northern European countries). In any case, a saving clause would apply in case of numbers exceeding a reasonable quota (see below);
  • Previous study or work experience in a given MS, or other forms of regular stay: If compared with the lack of any relevant “contact” with a national community, a previous regular residence is usually able to create a potential for integration (unless it is ascertained that during that stay anti-social behaviour occurred);
  • Verified private sponsorship: Apart from relatives, private individuals – be they EU nationals or third country nationals (TCN) regularly residing in the EU – may have a strong and verifiable personal link to an asylum seeker. In a globalised world, with plenty of transnational activities and personal mobility, a person may act as a sponsor for a TCN, for instance due to previous professional or personal exchange developed during a stay in Europe or in third countries. A similar reasoning might apply to non-profit organisations or firms, subject to some eligibility criteria. In the different setting of legal avenues to reach the EU, the Fundamental Rights Agency recently argued that private sponsorship is one of the most promising and under-exploited means (see here, at 6). Similarly, the Commission showed an interesting openness towards such an option (see theCommunication of April 2016, at 15-16). This possibility may cause some concern about possible risk of abuse, false declarations or coverage of illicit smuggling networks, but it should at least be the object of a serious and open minded discussion.
  • Existing legal tools facilitating the recognition of professional qualifications: The network of bilateral treaties already in force between MS and third countries of origin requires proper evaluation, because this could offer pragmatic solutions where the then protected person could easily play the role of an economic actor, instead of depending on social assistance.

One may question which of these factors is more suitable and which pre-requisites should be established to put them in place, but new paradigms need to be seriously explored in order to alter the current overall unsatisfactory performance of Dublin.

In the same vein, the quantitative impact of the proposed approach might be doubted. It must be acknowledged that no precise data are available and that no serious estimate may be done as to the impact of this proposal. Nevertheless, it is very likely that a large number of secondary movements is motivated by the intention to reach a country where some connections exist, so there is an evident normative need to set this empirical phenomena into a more credible legislative framework. The alternatives are to turn a blind eye (with no solution to the current problems to be expected) or to increase the sanctions regime for asylum seekers not complying with the current rules (a scenario that is even more debatable and problematic in the perspective of fundamental rights of asylum seekers: see  the post of Hruschka and the in-depth study of Maiani). By applying this new approach, some MS that are already under strain might become the responsible MS. To avoid undesired side effects, a saving clause might be connected to the overall system (see below).

Filters and corrections: the strange idea of treating persons as objects

As mentioned, the proposal does not change the main criteria for asserting jurisdiction, but it does introduce some novelties. Two of them seem particularly relevant here: the process at the early stages of the procedure (a kind of “pre-Dublin stage”) and the corrective mechanism, conceived as an evolution of the idea of a permanent scheme of relocation in times of emergency.

This pre-Dublin stage consists of a systematic assessment of the admissibility of the asylum claim, having regard to various deflective concepts (such a safe country of origin, first country of asylum, safe or ‘super safe’ third country, and a security screening of the applicant). These enquiries must be conducted by the first country of entry: only if the claim stands admissible, the enquiry into the Dublin criteria is carried out.

It must be observed that the two main actors (the asylum seeker and the national authorities) in this procedure are placed in a relationship of conflict: little chance seems to be left to the asylum seeker to actively participate in the procedure, and public officers are unavoidably perceived as hostile by him/her. This ‘applicant-unfriendly’ environment will not stimulate spontaneous compliance and full account of personal stories, thus generating systemic deficiencies.

The corrective mechanism is interesting, although in the current formulation is rather puzzling. A centralised system of registration of asylum claims will be put in place. Additionally, a reference key (composed of each MS’ GDP and population, each given 50% weighting) will determine which share of claims are assigned to each MS. The system will monitor in real time during the year the correspondence between the total number of asylum claims lodged in the EU and the division of them among the various MS. If a certain MS (MS#1) receives more than 150% of its assigned quota, then the corrective mechanism is automatically triggered. Additional asylum seekers will then be automatically assigned to other MS which are below their capacity (MS#2). If MS#2 refuses to take charge of an asylum seeker, a high amount has to be paid (€250,000 per person). The idea to impose a sanction (although the proposal uses a different vocabulary) on non-collaborative MS is not bad in principle, but it may be doubted that such an amount is proportionate.

Apart from that, what is really questionable is that the asylum seeker plays no role in this corrective procedure, and that the proposal does not indicate a method to identify MS#2. Maybe it is the MS which in that moment has the lowest performance of its assigned share? Or another MS? And in the latter case, will this be decided by a computer applying a casuistic algorithm? The proposal is incredibly ambiguous on this crucial point, and this “blind lottery approach” must be severely criticised. Again, people are treated as the object of procedures impinging on their lives: is all this human, rational and fair?

Finally, it must be taken into account that – even under the corrective mechanism – the overburdened State (MS#1) is, in any event, obliged to process the pre-Dublin stage and to conduct a dialogue with the assigned State regarding public security issues. To put it differently, there is no immediate relief for the overburdened State. Only after the person is moved to the automatically assigned MS#2, will this country verify the applicability of the Dublin criteria and then proceed with the subsequent steps (assessment of the claim or Dublin transfer to a MS#3). Thus, there is the possibility of a second mandatory movement: once again, is this rational? And cost-effective? And humane?

Time for ambitious pragmatism: Some ideas for EU policymakers

Drawing on the Commission proposal, it seems possible to improve some elements and reframe others. The purpose of the following suggestions is to reconcile the Dublin system with the authentic cornerstones of the CEAS (seeArticle 78(1) and also Article 80 of the TFEU) and with basic principles of rationality and fairness, both for MSs and applicants. To put it clearly, the proposal of the Commission is not all bad but it needs a robust correction.

Firstly, a permanent assessment of reception capacities (to be conducted through a reference key) and a centralised collection of all asylum claims (to be conducted as soon as possible) are highly needed. This idea of the proposal is good and should help to reduce instrumental and sterile political discussions. It is simply untenable that some MS must undergo a relevant pressure as frontline countries or as second-line favorite places of secondary movements while others give scarcely relevant support, or no support at all. It may be questioned which criteria should integrate the key and with which weight, but the overall idea is defensible.

Secondly, it is untenable to include a correction to an inherently bad system: the main standard criteria must be changed (in a similar vein, see Gauci). A primary role must be given to objectively verifiable preferences: after verification of admissibility of the claim (with full guarantees for the concerned applicant), an asylum seeker should be allocated to a given MS according to (wider) family links and other genuine links (see above). There would not be a simple or unqualified free choice of the applicant (as advocated by some NGOs): the applicant would be obliged to specify why a certain country is preferred and verification would be conducted by the interested MS.

It may be questioned if this solution would produce lengthy procedures or an excessive administrative burden on the first MS of entry. Well, this country is already obliged to conduct significant administrative activity under the pre-Dublin phase: a file is created, human resources are employed, time is spent on this activity and an interview is conducted. Is it so absurd to insert at such an early stage an ‘extra’ procedure aimed at showing a friendly face to the asylum seeker? One should also take into account that this extra procedure would be greatly facilitated by the asylum seeker’s cooperation, and that a different scenario would probably lead to a form of legal challenge by the asylum seeker, or his/her absconding. Would this be cost effective and desirable from a systematic point of view?

In this scenario, the asylum seeker would be asked to actively participate and to give clear indications regarding the presence of family members and of other connecting factors. In the case of several connected MSs (a circumstance which is not so probable), the choice could be left to the applicant.

In order to reassure MS whose asylum systems have undergone or are facing severe pressure (e.g. Germany or Sweden), if the competent State is already over its quota, the asylum seeker would be assigned to another (less) connected country, or only as extrema ratio to the State with the lowest performance rate of its share. In case of refusal of this MS to receive the concerned person, a proportionate financial disincentive should be established.

With the aim to reduce possible tensions coming from asylum seekers or from MS, a certain degree of freedom of movement of the beneficiary of protection should be accepted. If after recognition of refugee status or subsidiary protection by the designated MS, the person receives an effective job offer in another MS and security checks are fulfilled, the holder of international protection should have the possibility to accept this job offer, thus leading to a better allocation of the workforce. In this case, the issue should be raised as to whether, after voluntary establishment in another MS, protection duties should continue to bind the original MS or should be transferred to the second one, or whether such duties should simply cease.

Finally, a corrective emergency-mechanism should be conceived only for sudden and massive inflows and for supporting extremely precarious national asylum systems.

Do all these proposals look too innovative and unconventional? We all know perfectly what will happen if the Dublin system as it stands is maintained, or if only the limited ‘corrections’ set out in the Commission proposal are introduced. Should we wait for the next political crisis of the EU? Why not try to think of pragmatic and innovative way which could avoid tensions between MS, limit profits for smugglers as well as space for human rights abuses, avoid unnecessary sufferance, save public money and use human resources in a better way?

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Meijers Committee on EU latest proposals on “Dublin”, Eurodac and European Asylum Agency.


CM1609: Note on the proposed reforms of the Dublin Regulaton (COM (2016) 197), the Eurodac recast proposal (COM (2016) 272 fnal), and the proposal for an EU Asylum Agency (COM(2016)271 fnal)

Comments on the Dublin recast proposal

  1. General observatons

The Meijers Commitee would like to take this opportunity to comment on the proposed reform of the Dublin Regulaton, as set forth in the 6 April 2016 EC communicaton to the EP and Council (COM (2016) 197) and the 4 May 2016 proposal for a regulaton of the EP and Council establishing the criteria and mechanisms for determining the Member State responsible for examining an applicaton for internatonal protecton lodged in one of the Member States by a third-country natonal or a stateless person (recast) (COM (2016) 270). The later proposal will be further referred to here as Dublin III recast.

On page 4 of the 6 April 2016 communication, the Commission succinctly lists the shortcomings of the Dublin regulation: “difficulties in obtaining and agreeing on evidence proving a Member State’s responsibility for examining the asylum application, leading therefore to an increase in the number of rejections of requests to accept the transfer of applicants. Even where Member States accept transfer requests, only about a quarter of such cases result in effective transfers, and, after completion of a transfer, there are frequent cases of secondary movements back to the transferring Member State. The effectiveness of the system is further undermined by the current rules which provide for a shift of responsibility between Member States after a given time. […] A further impediment to the effective functioning of the Dublin system results from the difficulty in transferring applicants to Member States with systemic flaws in critical aspects of their asylum procedure or reception conditions. The effective suspension of Dublin transfers to Greece since 2011 has proved a particularly critical weakness in the system. […] The Common European Asylum System is also characterized by differing treatments of asylum seekers, including in terms of the length of asylum procedures or reception conditions across Member States, a situation which in turn encourages secondary movements.”

The Meijers Commitee wishes to add that Dublin’s ineffectiveness not only results from the difficulty of effectuating transfers but also from a general failure to initiate Dublin procedures, because asylum seekers have not been registered upon entering the EU. It is well known, not only that asylum seekers may seek to avoid registration, but that some Member States also disregard their obligation to register asylum seekers – some even on a large scale. It has been estimated, for example, that only half the persons entering Italy and applying for asylum somewhere in the EU were registered in that country1 In 2014, the proportion of physical Dublin transfers to the number of applicants for international protection in the EU was about 4 %, which suggests that Dublin is applied in far fewer cases than all those to which it is in fact applicable.2

To remedy these shortcomings, the Commission proposes two options: 1. Supplementing the present system with a corrective fairness mechanism, or 2. A new system for allocating asylum applications in the EU based on a distribution key. Because the second option would be difficult to envisage in the short or medium term, the Commission has chosen to pursue the first one.

The Meijers Commitee would frst of all like to point out that none of the shortcomings listed by the Commission will be remedied by the first opton, since it is essentally a contnuaton of the present Dublin system, which is demonstrably a failure. Why contnue with a broken system instead of fixing the shortcomings, even though this may not produce significant results in the short term? Additionally, the Meijers Committee points to the fact that the Dublin regulation was only very recently recast (19 July 2013), so this recast has been undertaken within 3 years of the entry into force of the last recast regulation, while that recast came 10 years after the entry into force of the Dublin II regulation.

The Meijers Commitee points out that at present there are two infringement procedures ongoing with regard to the Dublin regulation (in respect of Italy and Hungary), as well as four infringement procedures regarding the closely related Eurodac regulation (in respect of Croatia, Greece, Italy and Cyprus). Additionally, the Commission has recently sent a second supplementary letter to Greece expressing concerns over the persistence of serious deficiencies in the Greek asylum system, as well as a 10 February 2016 recommendation.

The belief that the Dublin system allocates responsibility unsustainability is widely held and is mentioned on page 3 of the explanatory memorandum to the Dublin III recast proposal. It is no coincidence that the infringement procedures mentoned above concern Member States on the EU’s external borders. These Member States have for a long tme complained that they cannot process the large numbers of asylum seekers entering the EU through their territories. While the suggested corrective fairness mechanism can go some way to remedy this situation, it will not change the fact that it is these Member States who will bear the brunt of new arrivals. The corrective fairness mechanism will not be triggered until a Member State has received 150% of the maximum allocated number of applications deemed fair on the basis of that State’s GDP and population size. This only partly corrects disproportionate burden sharing, without addressing the fundamental shortcomings of the Dublin system, namely that this system wrongly presupposes that the asylum procedures are adequate and up to standard in all Member States. On the contrary, Member States still continue to display systemic deficiencies, which make Dublin transfers impossible. As has been accepted by the ECtHR in several recent judgments, there are significant national differences in the quality of reception and asylum systems, which continue to exist and which encourage secondary movements.3 Additionally, the Commission must take stock of the fact that its similar attempt of September 2015 at such a mechanism has so far not been successful: of the 160,000 asylum-seekers who should have been relocated, only 1,500 (909 from Greece and 591 from Italy) have been relocated. The proposals under Dublin III recast do very little to address this unsustainable burden sharing, focusing instead on the risk of abuse of the rules laid down in the Dublin III regulation by individual asylum seekers, including their absconding.

  1. Detailed observatons

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