NEW!! : subscribe to the first summer school on the EAFSJ…

 

LogoSummerSchool2013Rome

Roma, 8-11 July
Sala conferenze Fondazione Basso – via della Dogana Vecchia, 5 – Roma

The European Area of Freedom Security and Justice (EAFSJ): scope, objectives, actors and dynamics.

Night view of Europe

Aim: to take stock of the current state of EAFSJ and of its foreseeable evolution within the next multiannual program 2015-2019 (to be adopted under Italian Presidency at the beginning of the next legislature).
Lenght: 4 one day modules
Subscriptions: on line on the Fondazione Basso internet site : http://www.fondazionebasso.it
Participation fees:

Euro 480,00 (ORDINARY FEE).
Euro 200,00 (FOR STUDENTS / RESEARCHERS) .
(Bank Account of Fondazione Lelio e Lisli Basso – Banca Nazionale del Lavoro Ag. Senato Palazzo Madama: IBAN IT18I0100503373000000002777 ).
Subscriptions should be submitted before June 15th.The Summer School will take place only if a minimum number of subscribers is reached !For further information : tel. 0039.06.6879953 – basso@fondazionebasso.it
Languages: lessons will be mainly in Italian (some lessons will be in English and French), teaching material will be in Italian and/or English, French.
English/Italian translation will be available.
The programme is on the web-site of Fondazione Basso (www.fondazionebasso.it -Tel. 06.6879953 – email: basso@fondazionebasso.it)

July 8th
A Constitutional and Institutional perspective
09h00 am – 06h30 pm

Opening speeches:
Valerio Onida: Freedom, Security and Justice related policies from a constitutional perspective and in relation with international and supranational dimensions
Stefano Manservisi: After the Stockholm Programme : how to preserve the specificity of the European Area of freedom security and Justice related policies by integrating them in the general EU governance and legal framework?

Debate

Freedom Security and Justice as the core of the common constitutional european heritage
Protecting fundamental rights: the impact of the accession of the EU to the ECHR. A common European Constitutional Heritage arising from the Council of Europe and European Union European Courts. What can be expected from the Strasbourg Human Rights Court in areas related to the FSJ?.

Speaker: Giuseppe Cataldi

Freedom Security and Justice as the core of the common constitutional european heritage
Promoting fundamental rights: the European Charter and its impact on EU policies. Even if the Charter does not extend the EU competencies it is now a constitutional parameter to be taken in account not only by the European judges but also by the EU legislature, even for policies designed with a more limited scope.

Speaker:Ezio Perillo

Debate

Evolution and transformation of the principle of Primacy of EU law. Dialogue and mutual influence of European and national Constitutional Courts.
Fifty years after the landmark case of Van Gend en Loos and four years after the Lissabon-Urteil (Bundesverfassungsgericht judgment of 30.6.2009), the tensions between EU “limits” and national “counter-limits” could arise again notably in the EAFSJ area.

Speaker: Oreste Pollicino

The EAFSJ a cross road of European and national founding values (art. 2), as well as for fundamental and European citizenship rights. How manage the indivisibility of rights and a Member States differentiated integration ?
(Opt-in Opt-out Countries). How far can the EU impact on Member States internal legislation (Towards a “reverse Solange” mechanism)? How the EU and Council of Europe can influence national fundamental rights related policies

Speaker: Nicoletta Parisi

The EAFSJ as supranational constitutional area of democracy. From National State to the European Union: what kind of relation between national and european legal orders ?
Sixty years of EU integration have changed the concept of democracy and sovereignty. There is a metamorphosis in National State’ s traditional role and its constitutional elements such as territory, citizenship and sovereign power. The Kantian vision of a peaceful cosmopolitan project mirrors the category of EU citizenship arising in the EAFSJ. Today Habermas developed the concept of “Constitutional patriottism”, underlying a “constitutionalisation” of the European supranational area. What are the pro and cons of this EU perspective ? The post-Lisbon Treaty stressed that the EAFSJ is becoming the embryo of a European public sphere as well as of a first example of supranational democracy.

Speaker: Francesca Ferraro

Debate

July 9th
Institutional dynamics and EU practices
09h30 am – 06h30 pm

The EAFSJ before Lisbon. The intergovernmental cooperation. From “TREVI” via “Schengen” to Amsterdam. The first phase.
How formerly excluded EAFSJ related policies have been integrated into the EU framework. TREVI cooperation, the Schengen agreement (1985) and its 1990 Implementing Convention as well as the Dublin Convention on Asylum.
The emerging notion of supranational space in the Single European Act (1986). The mutual recognition principle in the Internal Market and in EAFSJ-related policies. The Schengen Acquis in the EU legal framework from Amsterdam to Lisbon. Opt-in and Opt-out Countries: the impact of differentiated integration. Schengen relevance and ECJ jurisprudence on the preservation of the Schengen system consistency. From cooperation to integration.

Speaker: Dino Rinoldi

Debate

The EAFSJ after Lisbon (1). How the EAFSJ specificity has been preserved by progressively integrating it in the ordinary EU (communitarized) legal institutional framework. The impact on the EU institutions and on the MS.
Dynamics and the role of the Institutions in promoting, negotiating and implementing the EAFSJ-related policies. European Council, European Parliament, Council of the European Union, Commission and Court of Justice interplaying in the EAFSJ. The preparatory work conducted behind the scene by the Commission Directorates General, the Council working bodies – COREPER, CATS, COSI – and the EP parliamentary committees

Speaker: Antonio Caiola

The EAFSJ after Lisbon (2) How democratic principles are fulfilled in the EAFSJ. The impact of the EP on legislative procedures.
The interparliamentary dialogue and the way how the EP and national parliaments play their role when verifying the subsidiarity and proportionality principles in the EAFSJ policies. The emerging role at EU level of “political families” represented at national European and international level (European political parties, EP political groups, national parties).

Speaker: Emilio De Capitani

Debate

The EAFSJ after Lisbon (3). How EU policies are framed and implemented at national level. How cooperation, mutual recognition and harmonisation are implemented
How EAFSJ policies are implemented at national level. Problems and opportunities arising notably when implementing the mutual recognition of other EU countries’ measures. How intertwined are the EU and national administration in the EAFSJ related policies. Is there complementarity between EU and National strategies? The EU financial levy as a facilitator of mutual EU-national coordination. The emerging role of EU Authorities and Agencies as a support and meeting space also for national administrations (Ombudsman, FRA, EDPS, FRONTEX, EASO, EMCDDA, EUROPOL, OLAF, CEPOL, EUROJUST, …).

Speaker: Lorenzo Salazar

Debate

July 10th
An European space of freedom and rights
09h30 am- 06h30 pm

The EAFSJ after Lisbon (4) Placing the individuale at the heart of EU activities
How EU legislation implements the principles of equality and non-discrimination. The ECJ jurisprudence and the phenomenon of reverse discrimination. EU citizenship-related jurisprudence. Judicial action at national and European level founded on the EU Charter. Infringement of EU founding values and fundamental rights as possible exceptions to the mutual recognition obligations? Fundamental Rights Agency.

Speaker: Valentina Bazzocchi

The EU evolving framework of Transparency, access to documents, principle of good administration, and of classified information
After Lisbon a more transparent independent and efficient EU administration can be founded on Arts 15 and 298 of the TFEU as well as Arts 41 and 42 of the European Charter. However the close intertwining of the EU and the Member States has created a hybrid system of European Classified Information (EUCI), which is particularly relevant in the EAFSJ policies. How do European and national institutions implement the EU principles? How is the principle of good administration secured? What role should the EU Ombudsman play?

Speaker: Deirdre Curtin

Protection of Personal Data. The EU reform.
After the Lisbon Treaty and the merger of the so-called first and third pillars, protection of personal data can be framed in a globally consistent manner. Informational self determination, protection against possible abuses by the private sector as well as by public sector (law enforcement authorities) can now be framed at European level by taking stock of the lessons learned at national and international level (Council of Europe, OECD). How to preserve the role of national authorities and of the new coordinating body.

Speaker: Vanna Palumbo

Freedom of movement border integrated management
Freedom of movement of European citizens as well as of third country nationals in the EU remains a central and controversial issue. The integrated external border management is progressively framed at legislative level (borders, visas..) and implemented at operational level also thanks to the emerging role of Frontex and of the new European networks (SIS II – VIS). New opportunities as well as risks emerge in the definition of the EU-Member State management of internal and external borders

Speaker: Luisa Marin

Debate

European Migratory policies
Objectives, legal framework and operational setting of the EU-Member State policies. Five years after the European Pact on Asylum and Migration (2008), what lessons can be drawn for the next (2015-2019) multiannual programme? What improvements can be foreseen for the EU migration governance at central and national level? How are the Member States implementing the EU legislation? What are the main external aspects of the EU migration policy?

Speaker: Henry Labayle

The European common asylum system (and of EASO and EURODAC)
After the first generation of EU “minimum” rules the EU has now established the Common European Asylum System foreseen by Art. 18 of the Charter and Art 78 of the TFEU by taking account of the jurisprudence of the Luxembourg and Strasbourg Courts. At national level high standards should be granted to avoid the problems found for instance with Greece when implementing the Dublin system. The principle of solidarity still seems to be underexploited. Attention should be paid to the new role of EASO (Reg. (EU) No 439/2010) as well as to the implementation of the EURODAC system.

Speaker: Patricia Van de Peer

Debate

July 11
An European space of security and justice
09h30 am -06h30 pm

Judicial cooperation in civil matters; complement of the freedom of movement?
Judicial cooperation in civil matters has been one of the most dynamic domains after the entry into force of the Lisbon Treaty. Enhanced cooperation took place in matrimonial matters and intellectual property. Special attention will be reserved for the recently revised Brussels I Regulation (which abolished the “exequatur” procedure) as well as for the new Regulations on succession and wills and on mutual recognition of protection measures in civil matters.

Speaker: Filomena Albano

Internal security strategy: crisis prevention and management.
Special attention will be paid to the implementation of the 2010 European Internal Security Strategy and its impact on the cooperation between the EU institutions and agencies as framed by the “Policy Cycle” for the 2013-2017 period. There will also be a presentation of the implementation of PRUM cooperation and of the “availability principle” as well as the way how security- and intelligence-related information is exchanged notably within the framework of the so-called “Swedish Initiative”. The role played by COSI, Europol and of the internal security fund will be presented and debated together with the impact of the up-coming “Lisbonisation” of EU measures adopted before the entry into force of the Lisbon Treaty

Speaker: Sandro Menichelli

Debate

Judicial Cooperation in criminal matters
How judicial cooperation in criminal matters has been developed between countries of different legal traditions (civil and common law). Problems and opportunities arising at each level of cross-border cooperation (open coordination, mutual recognition, legislative harmonisation). The European jurisprudence (Strasbourg and Luxembourg Courts) as well as the impact of the EU Charter. The implementation of the first post-Lisbon measures and impact of the Lisbonisation of former third pillar measures in this domain. Preserving the independence of the judiciary: towards European-wide judiciary quality evaluation systems.

Speaker: Luca De Matteis

The European Public Prosecutor: a pattern also for Member States?
The OLAF Reform and the Eurojust “Lisbonisation” are intermediate phases towards the creation of the European Public Prosecutor’s office (EPPO) (Art. 86 TFEU). The latter will be empowered to bring action also before national courts. The European legislation will determine the general rules applicable to the European Public Prosecutor’s Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions. What will be the impact, the risks and opportunities arising from the creation of this new European Institution?

Speaker: Claudia Gualtieri

How to empower the EU citizens when EAFSJ are shaped and implemented ?
Round Table with the Intervention of Paul Nemitz, Antonie Cahen, Robert Bray Tony Bunyan

Final Debate

PRESENTATION OF THE COURSE

The Treaty of Lisbon and the Charter of Fundamental Rights of the European Union, which entered into force on 1 December 2009, constituted an important step both at the legal level and at the political level in the evolution of the European Union. The aim of the EU now is not only “… to promote peace, its values and the well-being of its peoples”, having presided over, since the end of the Second World War, the longest ever period of peace between European States, but also to achieve “… an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.”

After the Treaty of Lisbon, the policies already provided for in the Maastricht Treaty within the framework of the so-called “third pillar” and originally focused mainly on intergovernmental cooperation and cooperation between administrations, are now to evolve into European “common policies” directly towards the interests of the individual, who is placed “at the heart of European integration.”

It is a Copernican revolution in so far as the Union is called not only to offer “… its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime” (Art. 3 TEU and Title V TFEU) but also to promote (and not only protect) fundamental rights and prevent all forms of discrimination (Art. 10 TFEU) and strengthen EU citizenship (Arts 18-25 TFEU) and with it the democratic principles on which it is based (Title II TEU).

The fact that the competences related to the ASFJ are now “shared” with the Member States (Art. 4 TEU) and are to be focused on the rights of the person brings about a daily interaction between the national and the European level, bringing into play national and European values, rights and objectives.

The process of reciprocal hybridization between the nascent European model and traditional national models is anything but politically painless, as the experience of almost thirty years of Schengen cooperation shows.

The aim of this Summer School is to assess the progress and difficulties encountered by the European institutions and the Member States in implementing the Charter of Fundamental Rights and the objectives set by the European Council in the “Stockholm Programme” of 10 December 2009.

Based on this evaluation, we intend to shed light on the possible priority bearing in mind that:
– it will be necessary to adjust the secondary legislation of the European Union in the light of the values and principles which are now enshrined in the Lisbon Treaty and the Charter of Fundamental Rights (“Lisbonisation”);
– we shall be in the final phase of the accession of the EU to the European Convention on Human Rights;
– at the beginning of the next legislature, we will be entering into a new phase in the European judicial area with the negotiations on the establishment of the European Public Prosecutor and the transition to the ordinary legislative procedure with regard to measures of police and judicial cooperation in criminal matters adopted before the entry into force of the Treaty (the transitional arrangements end on 1 December 2014);
– Member States which have hitherto enjoyed special treatment (Ireland, Denmark and the United Kingdom in particular) should have clarified their position with respect to the new phase of the ASFJ and the Schengen cooperation.

In the course of the next legislature it will also be necessary to promote greater consistency between European and national strategies related to the European area of freedom, security and justice. Just as in the economic sphere, the divergence of national public policies has put at risk the credibility of the common currency, the diversity of standards for the protection of the rights in Member States is straining mutual trust, the application of the principle of mutual recognition and the very credibility of the nascent “European model”. The strengthening of the operational solidarity between Member States’ administrations – which is being developed for example within the framework of Schengen cooperation – must be accompanied by legislative, operational and financial measures that implement solidarity between European citizens and third-country nationals on the territory of the Union.

In this perspective, Italy may play an important role as the new multi-annual programme for 2015-2019 is to be adopted by the second half of 2014 under the Italian Presidency.

Speakers:

Academics:
Valerio Onida, Former President of the Italian Constitutional Court
Giuseppe Cataldi, Pro-rettore Università L’Orientale (Napoli)
Oreste Pollicino, Public comparative law Professor  (Università Bocconi – Milano)
Nicoletta Parisi, EU Law Professor  (Università Catania)
Francesca Ferraro, Visiting Professor (Università L’Orientale – Napoli)
Dino Rinoldi, International Law Professor  (Università Cattolica – Piacenza)
Valentina Bazzocchi, PHD EU Law (Alma Mater Università Bologna)
Deirdre Curtin, Professor of European Law (University of Amsterdam – NL),
Luisa Marin, Assistant Professor of European Law (University of Twente – NL)
Henri Labayle, Professeur de Droit international et européen (Université de Pau et des
pays de l’Adour – France)

Representatives and officials of European and national administrations:
Ezio Perillo (European Civil Service Tribunal)
Stefano Manservisi DG of the Commission DG Home
Paul Nemitz Director at the Commission DG Justice
Antoine Cahen, Patricia Van Den Peer, Claudia Gualtieri (European Parliament)
Filomena Albano, Luca De Matteis, Lorenzo Salazar (Italian Justice Ministery)
Sandro Menichelli (UE Italian Permanent Representation )
Vanna Palumbo (Garante Privacy IT)

Representatives of Civil Society:
Tony Bunyan, Director of Statewatch,Emilio De Capitani, FREE Group Secretary and Visiting Professor (Università L’Orientale – Napoli)

BuonGoverno

Towards Europol 2.0 : first obstacles during the parliamentary debate…

by Marine Marx

The long awaited Commission legislative proposal updating Europol to the new legal framework as described by art 88 of the TFEU has been recently submitted to the European Parliament and to the Council of the European Union. Quite surprisingly the first issue which has arisen during the parliamentary debate has been the proposed fusion of Europol with CEPOL (the European Agency in charge of training Law enforcement authorities).

The fusion of Europol and Cepol as a first test of a new general policy on EU agencies

It is worth recalling that this proposal comply with the general EU objective to make some order in the recent mushrooming of EU agencies (already 32, 23 of them created only in the last ten years). These decentralized agencies are playing an essential role not only in the implementation phase at technical, scientific and operational level but also when shaping new strategies and proposing new legislation in all EU domains of competence. However, as explained in a Joint Statement of the European Parliament, the Council of the EU and the European Commission on decentralized agencies[1], their creation has been done on a case by case basis without an overall vision of their role and place in the European institutional and legal framework. This led to an increase of decentralized agencies in a way that lack of consistency. To face these distortions, the Commission explained in the Roadmap on the follow-up to the Common Approach on EU decentralised agencies[2] its objectives to reach a more balanced governance, improved efficiency and accountability and greater coherence.

Thus, one of the major objectives is to enhance agencies’ efficiency and accountability. One of the initiatives to be pursued in this respect is to seek synergies between agencies, such as the possibility of sharing services based on proximity of locations or policy area or that of merging agencies whose tasks are overlapping and which would more efficient if inserted in a bigger structure.

This point stressed in the Common Approach establishes the foundations for the Commission’s proposal on a revision of Europol and its potential merger with CEPOL.

However merging Europol and Cepol risks to be a bumpy road..

On Tuesday, the 7th of May, a debate was held within the European Parliament’s civil liberties committee (LIBE) about the merger of the European Police College (Cepol) with the European Police Cooperation Agency (Europol). Thus, the LIBE committee organized during its meeting an exchange of views with Dr Ferenc Banfi, Director of CEPOL and Rob Wainwright, Director of Europol and the Chairs of the Management Boards on the proposal of a merger between Europol and CEPOL.

Continue reading “Towards Europol 2.0 : first obstacles during the parliamentary debate…”

European “Smart Borders” project : negative opinion of the Meijers Committee

The  Meijers Committee (*) has recently advised the members of the European Parliament to vote against the “Smart Borders” proposals (COM(2013) 95, 96 and 97).  

In its letter it has expressed its deep concerns with respect to the:
proportionality and practical feasibility of the proposals;
coherence of the proposals with existing databases;
– applicable standards of data protection for the data subjects;
– conditions for transmission of personal data to third countries;
broad discretion as regards the issuing of the registered traveller status;
– proposed amendments in the Schengen Borders Code;
– possible access to the Entry/Exit system for law enforcement purposes.

 Note on the Smart Borders proposals (COM(2013) 95 final, COM(2013) 96 final and COM(2013) 97 final)

 1. Introduction

 The proposed Entry/Exit System (EES) processes alphanumeric data and fingerprints upon entry and exit of the third-country national, aiming to improve the management of the external border and the fight against irregular migration and more specifically to contribute to the identification of any person who may not, or may no longer fulfil the conditions of duration of stay within the territory of the Member States (so-called “overstayers”). This would effectively mean that the EES would collect the personal data of all third-country nationals entering the Schengen area. The Registered Traveller Programme (RTP) enables pre-vetted individuals to cross borders faster than other third-country nationals and aims to offset the additional constraints by the EES on cross-border travel. According to the European Commission, yearly 109 million third-country nationals without a visa and 73 million third- country nationals with a visa cross the EU borders.

The costs of the Smart Borders proposals envisaged by the European Commission are 1.1. billion euro.1

The sheer amount of data collected, in combination with the high costs of establishing Smart Borders, require compelling justifications. The EU legislator is obliged to observe proportionality as a general principle of EU law. This means that the measure must be suitable and necessary to achieve the aim it pursues, and should not impose “a burden on the individual (…) excessive in relation to the object sought to be achieved”.2

The Meijers Committee is of the opinion that the Smart Borders proposals are neither proportionate, nor suitable to its stated aims and raise severe data protection concerns. Therefore, the Committee advises the European Parliament to vote against the proposals. 

 2. Proportionality and practical feasibility

 The proposals intend to facilitate the entry of “bona fide” travellers at the external borders and shorten waiting times.3 The EES is however likely to result in longer queues for third- country nationals, since all third-country nationals – also those that are not under a visa obligation – will be required to provide their fingerprints at the border. The RTP will only off-set waiting time to a limited extent, as only a limited number of third-country nationals will enrol in that programme.4 There is also a lack of clarity on the size of the problem of overstay which the EES intends to tackle. There are few reliable data on the numbers and profile of overstayers and there is very little research on the financial and social costs of the presence of third country nationals staying on an irregular basis in the EU.

Most importantly however, there is no direct link between the identification of overstayers and the stated objective of tackling irregular migration. The extent to which the information from the EES can help to implement and execute return proceedings is limited. The identification of overstayers does not provide authorities with any information as regards their location within the whole Schengen territory, nor does it facilitate return procedures. When a third county national is apprehended on suspicion of irregular stay, already now national authorities are able to establish the (ir)regularity of stay by examining the entry and exit-stamps on a person’s passport as well as by consulting the visa-stickers and VIS. Moreover, the mere identification of overstayers does not provide a solution in the situation where a third state does not cooperate in return proceedings. The side-effect of being able to collect statistics on overstay does not by itself justify the collection of large amounts of personal data.

Lessons need to be learnt from the experience with the setting up and practical operation of already existing databases. The European Commission itself has stated that a fully operational and developed Visa Information System (VIS) is “a prerequisite for the implementation of a Smart Borders System”.5 The Meijers Committee notes that the new generation Schengen Information System (SIS II) has only become operational as of 9 April 2013, the VIS is still in the process of being rolled out and access to EURODAC for law enforcement purposes has only been decided upon recently.6 There is therefore insufficient information to assess the functioning of existing databases and the added value of the current proposals. As required by the Hague Programme new centralised databases should only be created on the basis of studies that have shown their added value.7

Finally, the Meijers Committee wishes to point out the difficulties with the implementation of other information systems, most notably the SIS II, which was plagued with delays and cost over-runs due to technological problems. The United States has been unable to successfully implement a fully-functioning entry/exit system despite costly efforts to do so over the past decade.8 These experiences raise serious doubts as to the practical feasibility and cost-effectiveness of the current proposals. 

3. Coherence with existing EU legislation

The Smart Borders Package will not function in isolation. Close attention has to be paid to the interaction with other databases in the Area of Freedom, Security and Justice. The proposals do not stipulate the consequences of an entry as overstayer in the EES for the inclusion in other data bases or the possible issuing of a return decision and/or entry ban under the Return Directive 2008/115. The registration of entry bans into the SIS should always be subject to the principle of proportionality and requires an individual assessment, in accordance with Articles 21 and 24 of the SIS II Regulation. However, national practices with regard to the SIS and the application of entry bans show a diverging approach in the EU Member States.

In an earlier opinion, the Meijers Committee has already pointed out the legal uncertainty in relation to the issuing of an entry ban and its inclusion in the SIS.9 The Meijers Committee expects a similar problem with respect to the reporting of overstayers in the EES. When overstay in the past is an element to be taken into account when issuing a (new) Schengen visa to a third-country national, the risk exists that the fact that he or she is reported in the EES, will lead to an automatic refusal of a visa, not taking into account his or her personal circumstances or reasons to visit the EU.

 The Meijers Committee further points to the relationship of the EES and the reintroduction of internal border controls, regulated in Article 28 of the Schengen Borders Code. According to this provision, the obligation to enter the entry and exit data of the third country- national in the EES would apply mutatis mutandis

 Close attention also needs to be paid to the possible consequences of EES for EU citizens and especially third country family members of EU citizens. The proposals should guarantee that the application of the EES does not interfere with the rights laid down in Directive 2004/38 EC. Moreover, the Meijers Committee questions whether the EES can be applied to Turkish nationals falling under the Association Agreement and their family members in light of the standstill clause in Decision 1/80 and the nondiscrimination clause in Article 9 of the Association Agreement.

 Finally, the Smart Borders proposals refer to Directive 95/46 as the applicable legal framework for data protection. These rules are however under review and set to be replaced by a new general legislative framework on data protection (COM(2012 9,10 and 11). The Meijers Committee recommends that the adoption of proposals involving the storage of large amounts of data is postponed until the final adoption of clear and uniform rules on data protection. Following the adoption of a new legal framework, the Smart Borders proposals should be re-assessed in the light of the new data protection framework.

 4.Data protection rights

 It is established case law of the ECtHR that the mere collection, storage and processing of personal data amounts to an interference with the right to privacy (art. 8 ECHR and art. 8 EU Charter). Such interference can only be justified when it serves a legitimate aim and is proportionate to this aim. The data must be relevant and not excessive in relation to the purposes for which they are stored and preserved in a form no  longer than is required for the purpose for which those data are stored.10 As mentioned above, under point 2, the necessity and the proportionality of the Smart Borders proposals has not been established.

The Meijers Committee is of the opinion that the proposal for an Entry/Exit system does not offer sufficient guarantees to the data subject and leaves too much discretion to the Member States. In the following, the Committee makes a few comments on specific provisions relating to data protection in the proposal for an Entry/Exit system.

 § 4.1. Article 20- the storage of data

 Article 20 of the proposal for an EES regulates that data will be stored in the EES for six months when the third-country national exits the territory of the Member States within the authorised period of stay. Data shall be stored for a maximum period of five years when there is no exit-record following the date of expiry of the authorised period of stay. The unconditional application of a five years data retention period may result in a disproportional limitation of the individual freedom of movement. It could mean that an individual may not be able to re-enter the EU during five years, also when a person has overstayed his or her authorised stay for a negligible amount of time or for causes not attributable to him or her.

 § 4.2. Article 21- the possibility to amend data in EES

 The proposal is flawed as regards the rights granted to the data-subjects in case of justifiable overstay or of an erroneous entry in the EES. It is crucial that a third-country national has the possibility to request the,competent authorities to delete or amend such data and is given an effective judicial remedy, including interim measures, if the authorities refuse to amend the data, especially if in the future data stored in EES can be accessed for law enforcement purposes. Article 21 of the proposal includes these rights, but its text provides the Member State a wide discretionary power; notions such as “without delay”, “unforeseeable and serious event” and “in case of errors” can be interpreted in many different ways.

Also, the decision on which evidence shall be admitted to support the claim for amendment of the data should not be left to the discretion of the Member States. Considering that exceeding authorised stay might lead to the expulsion of the third country national, a clearly defined provision, including the possibility to grant suspensive effects to the appeal lodged on EU level is necessary. Finally, the Meijers Committee points at the important problem of the practical accessibility and implementation of the rights in Article 21, especially when the individual concerned has left the EU territory.

 § 4.3. Article 27- transfer of data to third countries

 The Meijers Committee is concerned about the wide discretionary power left to the national authorities of the Member States with regard to the transfer of personal data from the EES to third countries, as provided in Article 27 of the proposal. This discretionary power undermines the general principle that data shall not be transferred to third countries, third parties or organisations. The transfer of data to third countries is allowed for the purpose of proving the identity of third-country nationals, including for the purpose of return. The conditions to allow for such communication do not offer sufficient guarantees. It has not been substantiated why the transfer of EES data to third countries is necessary for the return of third- country nationals.

 Furthermore, Article 27(3) regulates that the transfer of third countries shall not prejudice the rights of, refugees and persons requesting international protection, in particular as regards non-refoulement. The Meijers Committee notes that it should be clarified how and by whom the decision on the transmission of data to third countries and the risk of non-refoulement will be examined and if the Member State involved will be held responsible when something happens to the person upon return to his or her country of origin.

 § 4.4. Articles 29 and Article 32- Liability and penalties

 Article 29 on the liability for suffered damage as a result of an unlawful processing operation or any act incompatible with the EES does not offer a strong position to the third- country national; Member States will be exempted from liability if it proves that it is not responsible for the event giving rise to the damage. This again leaves too much room for interpretation, especially because no clarity is given on the burden of proof, and the possibility to claim compensation is left to national law.

Article 32 provides for the possibility for the Member States to lay down rules on (administrative or criminal) penalties applicable on infringements of data protection provisions in this Regulation. These penalties should be “effective, proportionate and dissuasive”. While this formulation is consistent with EU law, the Meijers Committee finds that future evaluation mechanisms of the EES should assess carefully whether national provisions implementing this provision do guarantee in an effective manner European data protection rules.

 § 4.5. Role of the supervisory authorities

 Considering the current use and development of large-scale databases in the EU and other instruments involving data processing, such as the API Directive, the VIS and Eurodac, the Meijers Committee underlines the excessive increase of workload of the national supervisory authorities and the EDPS. This development carries the risk that supervisory authorities will not be able to exercise their tasks effectively. Therefore, the financial and personal means which are necessary for data protection authorities in order to be able to perform their tasks effectively with respect to the whole data protection framework, should be taken into account and guaranteed.

 5. Access to Entry/Exit System for law enforcement purposes and the possibilities offered by Privacy by Design

 The current proposal for an EES clearly indicates that in the near future access to the Entry/ Exit System for law enforcement purposes will be considered. This can be derived from the Impact Assessment, where access for law enforcement is already explored and recital (11) where it is set out that the technical development of the system should be as such that in the future access for law enforcement purposes will be possible. The Meijers Committee regrets the premature reference to this possibility because it obscures the discussion on the desired form and the necessity and proportionality of the system as it stands.

As already expressed in earlier comments, the Meijers Committee underlines its strong objections to provide access for law enforcement purposes.11 Access for law enforcement purposes to the EES containing data of a large group of innocent persons is to be considered as a disproportional limitation of their privacy and data protection rights, including the principle of purpose limitation. In this context, the Meijers Committee recalls that preliminary questions have been submitted by national courts in Germany and the Netherlands to the Court of Justice of the European Union on the implementation of the Regulation (EC) No 444/2009 on standards for security features and biometrics in passports and travel documents issued by the Member States.12 In these questions, the national courts voice their concerns about the proportionality of the central storage of biometric data in passports and travel documents and their use for other purposes and about the relationship of the Regulation with the rights to privacy and protection of personal data safeguarded under Article 7 and 8 of the Charter of Fundamental Rights and Article 8 ECHR.

 Although access for law enforcement purposes is not regulated in the current proposal, it is required that a technical system be set up in order to allow such access (Recital 11). In view of this, the Commission should device solutions which accommodate privacy by design,13 by recurring to Privacy Enhancing Technologies (PET).14 For example, in this case, it should be considered to use fingerprint identification technologies coupled with the storage of templates (e.g. using hash functions) of fingerprints, instead of the storage of full fingerprints in the database. Besides enhancing security, by reducing the chance to compromise biometric data, this will offer some level of data minimisation and, consequently, will benefit proportionality for a database storing data of persons which are not suspected of any crime.

 6. The Registered Traveller Programme (COM (2013) 97 final)

 The Meijers Committee has also taken note of the proposal for a Regulation establishing a Registered Traveller Programme. Recognizing the usefulness of facilitating the swift entrance of frequent third- country travellers to the EU, the Meijers Committee questions whether Article 12 of the proposal does not give too much discretion to the competent authorities in deciding on an application for such a programme. Article 12 (d) for example provides that the applicant has to prove “his/her integrity and reliability, in particular a genuine intention to leave the territory in due time”, which can be interpreted in many different ways. The Meijers Committee is of the opinion that the provisions must be more concrete, in order to avoid discretionary decisions on the admission to the Registered Travellers Programme.

 7. Proposed amendments to the Schengen Borders Code (COM (2013) 96 final)

 The amendments to the Schengen Borders Code aims to bring the Code in line with the proposals for an EES and an RTP. The Meijers Committee notes that not only technical amendments are proposed, but also amendments on the substance, considerably extending the possibilities for border guards to check whether the third country national is an overstayer. For instance, border guards now always need to verify that the third country national did not exceed the maximum duration of authorised stay in the territory of the Member States upon exit of the territory (addition para. IV to Article 7(3)(b)), whereas in the current provision this is not compulsory (Article 7(3)(c)(ii). This extended obligation is not in line with the aim to shorten waiting lines at the borders.

 The Meijers Committee is concerned about the amendments to Article 11 of the Schengen Borders Code. In the current Article 11 a presumption of irregular stay is provided for in the situation where a thirdcountry national does not bear an entry stamp, whereas in the proposed amendment not only the lack of an entry record in the EES presumes irregular stay, but also where there is an entry record but there is no exit date following the date of expiry of the authorised length of stay. The Meijers Committee notes that this considerably extends the possibilities for authorities to accept a presumption of irregular stay. This underlines the importance of entering data in the EES correctly and accurate, but also implies that clearly defined safeguards should be provided for to be able to rebut the presumption and to have an effective judicial remedy if the rebuttal of the presumption is not accepted.

 The Meijers Committee questions whether the criterion of providing “credible evidence, by any means, such as transport tickets or proof of his or her presence outside the territory of the Member State” does not leave too much discretion to authorities to decide on this issue, especially because of the serious consequences: the third- country national may be expelled by the competent authorities from the territory of the Member State concerned. The Meijers Committee considers that it should be investigated first how the Member States have applied this provision so far and whether it has lead to diverging practices.

 o-0-o

 1 Impact Assessment Proposal for a Regulation establishing an entry/exit system to register entry and exit data of third- country nationals crossing the external border of the Member States of the European Union (SWD (2013) 47 final), p. 11 and p.45.

2 P. Craig, G. de Búrca, EU LAW, Oxford, OUP, 2008, p. 545.

3 ‘Smart Borders’ enhancing mobility and security’, press release European Commission, 28 February 2013.

4 Dr. B. Hayes, M. Vermeulen, “Borderline EU Border Surveillance Initiatives », Heinrich Böll Stiftung, May 2012.

5 COM (2011) 680 final, p.7.

6 Regulation (EC) No 1987/2006 on the establishment, operation and use of the second- generation Schengen Information System (SIS II), Regulation (EC) No 767/2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas and amended proposal for a Eurodac Regulation for the effective application of the Dublin Regulation and  to request comparisons with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (COM(2012) 254).

7 The Hague Programme, Strengthening Freedom, Security and Justice in the European Union (2005/C 53/01).

8 GAO report number GAO-09-1002T: ‘Homeland Security: Despite Progress, DHS Continues to Be Challenged in Managing Its Multi-Billion Dollar Annual Investment in Large-Scale Information Technology Systems’(15 September 2009).

9 CM1202 Note on the coordination of the relationship between the Entry Ban and the SIS- Alert- An Urgent need for Legislative Measures, 8 February 2012.

10 ECtHR S and Marper v. the UK, 4 December 2008, application nos. 30562/04 and 30566/04. See also ECJ Huber v. Germany, C-524/06, 16 December 2008.

11 See also a.o. CM1216, CM0910 and CM0714.

12 Dutch Council of State, case 201205423/1/A3, 28 September 2012, C-447/12 and Verwaltungsgericht Gelsenkirchen, C-291/12 Schwarz v. Stadt Bochum, 15 May 2012.

13 See the Opinion of the European Data Protection Supervisor on Promoting Trust in the Information Society by Fostering Data Protection and Privacy, at: http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2010/10-03-19_Trust_Information_Society_EN.pdf.

14 See MEMO of the Commission Privacy Enhancing Technologies (PETs), Reference: MEMO/07/159, at; http://europa.eu/rapid/press-release_MEMO-07-159_en.htm#fn3; see also the Study on the economic benefits of privacy-enhancing technologies (PETs), Final Report to the European Commission, DG Justice, Freedom and Security, Prepared by London Economics,2010 at: http://ec.europa.eu/justice/policies/privacy/docs/studies/final_report_pets_16_07_10_en.pdf; see also Commission’s Communication COM(2007) 228 final, on Promoting Data Protection by Privacy Enhancing Technologies (PETs), at: http://eur-lex.europa.eu/LexUriServ/site/en/com/2007/com2007_0228en01.pdf.

 

 

(*) The Standing Committee of Experts on International Immigration, Refugee and Criminal law, was established in 1990 by five NGO’s: the Dutch Bar Association, the Refugee Council, the Dutch section of the International Commission of Jurists, the Netherlands Centre for Immigrants/FORUM and the National Bureau against Racism (LBR).The Committee is independent. Most of its members are lawyers, working at Law Faculties in the Netherlands or in Belgium. The Standing Committee monitors developments in the area of Justice and Home Affairs and presents its opinion to the Dutch Parliament, the European Parliament, or parliaments in other Member States (e.g. the House of Lords), to the Dutch government, the European Commission and to other public authorities and NGO’s.

 

Terrorism and “Intelligence-led policing”: the German Constitutional Court draws its “red lines”..

On April 23rd, shortly after the European Union started working on the new Europol legal framework which is deemed to align the main intelligence led policy Agency with the Lisbon Treaty and with the European Charter the German Constitutional Court (BVG) decided to impose a strict separation between the work of the police and intelligence services. As in several other cases where the BVG jurisprudence has influenced also the European legislature this ruling will be probably thouroughly analysed also in Brussels even if the BVG maintain that the issue falls under the national exclusive competence. Therefore it will be more than likely that the principles outlined in this ruling would be taken in account in the EU draft legislation on data protection when these data are collected for security purposes.

According to the BVG press release  (emphasis added) “…For the Karlsruhe based court, the exchange of data between the Federal Office for the Protection of the Constitution, intelligence services, military counter-intelligence and the police amounts to — a severe infringement of the rights of those concerned, which is why it can only be allowed in exceptional cases. The judges did, however, authorise an “anti-terrorist” listing, while declaring another “secret service contact” listing unconstitutional. Initiated in 2006, the second database contains information on 18,000 potential terrorists, supplied by 38 intelligence services.
The counter-terrorism database is in its fundamental structures compatible with the Basic Law. However, it does not meet the constitutional requirements regarding specific aspects of its design.
This is what the First Senate of the Federal Constitutional Court decided in a judgment that was issued on April 23. Under certain conditions, the unconstitutional provisions can continue to be applied until new regulation has been enacted, but no later than until 31 December 2014.

The Decision is Essentially Based on the Following Considerations: Continue reading “Terrorism and “Intelligence-led policing”: the German Constitutional Court draws its “red lines”..”

The EP Committee rejects the proposal for an european passenger name record system (PNR)

written by Marine MARX

Wednesday the 24th of April, the EP Civil Liberties committee rejected the Commission Proposal for on the use of Passenger Name Record data (EU PNR). This proposal aimed at allowing the transfer of air passengers’ data for security purposes inside the EU territory.

Indeed, air carriers should collect PNR data from passengers during reservation and check-in procedures for flights entering or leaving the EU. PNR includes notably the passenger’s name, address, phone number, credit card details as well as “free text” linked with the management of the travel contract. Following an already settled US and Canada and Australia practices[1], the Commission proposed in February 2011 to oblige air carriers to provide EU countries with the data of passengers entering or leaving the EU, for use in preventing, detecting, investigating and prosecuting serious crime and terrorist offences.

The result of the vote led the Civil Liberties committee to a heated debate between the ones in favor of an EU PNR Scheme and the ones who voted against it (30 against, 25 in favour).  This division has come without surprise on this issue as the PNR saga dates back to an EP resolution in March 2003[2] and has always been a divisive topic.

Continue reading “The EP Committee rejects the proposal for an european passenger name record system (PNR)”