PEERS : Data protection rights and administrative proceedings

ORIGINAL PUBLISHED ON EU LAW ANALYSIS
Thursday, 17 July 2014

Steve Peers

What rights do asylum-seekers have as regards data protection law? This issue was clarified in today’s CJEU judgment in YS and M and S, which could also have broader relevance for any case which involves access to documents in the context of administrative procedures.

Both cases involved asylum-seekers in the Netherlands, who sought access to file notes concerning their case. However, they did not rely on the EU’s asylum procedures Directive, which states that asylum-seekers must be given the reasons for negative decisions and are entitled to access reports about the interviews held with them, but does not make mention of access to any other document. The second-phase procedures Directive, applicable to applications made after 20 July 2015, adds a right of access to country-of-origin information and expert advice which was used in making a decision on the asylum-seeker’s case, but still does not extend to a right to the entire file.

So they invoked the data protection Directive instead. The first question in this respect was whether the legal analysis in the file concerning their case was ‘personal data’ within the meaning of the Directive. According to the CJEU, it was not, for although that analysis ‘may contain personal data, it does not in itself constitute such data within the meaning of’ that Directive. That analysis ‘is not information relating to the applicant for a residence permit, but’ rather ‘information about the assessment and application by the competent authority of that law to the applicant’s situation’, based on the personal data available to the authorities.

The Court further opined that this was consistent with the purpose of the Directive, which was to ensure the right to privacy, including the check on the accuracy of the data and the correction of inaccurate data. A different approach would amount to ‘the right of access to administrative documents’, which was not the point of the Directive. It justified its analysis by analogy with the Bavarian Lager judgment, in which it had ruled that the Directive did not have the purpose of opening up the transparency of EU decision-making.

The second point was the extent of access to the personal data (as defined by the Court) which was being processed. On this point, the CJEU rejected the argument that the entire file document had to be made available, and instead stated that it was sufficient to give data subjects an intelligible summary of the personal data being processed.

Finally, the national court had asked about the possible application of Article 41 of the Charter, which sets out the right to good administration. The CJEU distinguished its prior case law, and asserted that this Charter right applied only to EU bodies, not to national administrations. But the right to good administration could still be invoked against national authorities as a general principle, as distinct from a Charter right.

Comments

The Court’s analysis of the main data protection issues here is not very convincing. There is nothing in the text of either the data protection Directive or the asylum procedures Directive that would suggest a distinction between administrative documents which contain personal data, and other types of collection of personal data. Quite clearly asylum-seekers do have an interest in knowing how their personal data is being processed in respect of an analysis of their application, and of correcting that personal data if it is correct.

To argue that the data protection Directive does not give access to administrative documents is a straw man argument. The question is not whether it aims to give access to all administrative documents, but only whether it gives access to those which contain personal data. The comparison with the Court’s Bavarian Lager judgment makes no sense either, for in that case data protection formed an express exception to the EU legislation on access to documents, and the two rights were in conflict.

The Court’s judgment on the second point is more convincing, in light of the wording of the data protection Directive, which only requires an intelligible summary of the personal data being processed to be made available.

Finally, the Court’s analysis of Article 41 of the Charter is a brave attempt to clear up the prior inconsistencies and confusion on this point, for instance in its recent judgment on procedural rights as regards subsidiary protection applications. Undeniably the Charter provision does only apply to EU bodies, not to Member States, but the Court nevertheless guarantees that the right to good administration can be claimed against the latter by clarifying that the right to good administration is nonetheless a general principle of EU law.

This is, apparently, the first time that the Court has confirmed that some rights are not in the Charter, but are protected as general principles of EU law. This raises important questions as to which other rights might be protected in that way, what the difference between the parallel rights to good administration might be, and whether the general principles have a different legal effect than Charter rights. But in the specific context of asylum proceedings, and more generally in many other areas of EU law, it is useful that the Court confirmed that applicants can still enforce (by a different means) the right to good administration against national authorities.

Steve PEERS : The UK opt in to pre-Lisbon EU criminal law

ORIGINAL Published on Statewatch : analysis by Steve Peers Professor of EU Law and Human Rights Law, University of Essex
July 2014

Introduction

The United Kingdom (UK) has exercised its power to opt out of all of the EU measures on policing and criminal law adopted before the Treaty of Lisbon (‘pre-Lisbon third pillar measures’), but has also sought to opt back into a number of these measures. That application to opt back in has recently been agreed in principle. What will be the impact of these changes for the UK’s participation in EU policing and criminal law?

The Legal Framework

Before the entry into force of the Treaty of Lisbon, the UK was a full participant in almost all EU policing and criminal law measures. The exception was a small part of those measures ‘building on the Schengen acquis’, ie measures set out in, or amending, implementing or closely related to the Schengen Convention on the abolition of border controls. Most of those Schengen-related measures applied to the UK from the start of 2005, except for the rules on cross-border hot pursuit by police officers (which the UK did not opt into) and the rules on the Schengen Information System (SIS) database (because the UK wanted to wait until a second-generation SIS was operational first, and this didn’t happen until 2013).

The Treaty of Lisbon changed the legal framework for the adoption of EU policing and criminal law, applying to this field the normal jurisdiction of the Court of Justice of the European Union (CJEU) and, for the most part, the ordinary legislative procedure of the EU, which entails joint powers for the European Parliament and no vetoes for Member States in the Council.

The UK would only agree to these major changes in return for two forms of opt-out. The first opt-out relates to policing and criminal law measures adopted after the entry into force of the Treaty of Lisbon. This opt-out allows the UK to decide on a case-by-case basis, after each proposal is made, whether it seeks to opt in or out. If the UK initially decides to opt-out, it can always seek to opt in again (needing the Commission’s approval) at any time after the measure is adopted.

The second form of opt-out takes the form of a ‘block’ opt-out for those measures adopted before the entry into force of the Treaty of Lisbon. This is intrinsically linked to a five-year transition period concerning those measures, which is applicable to all Member States.

This second opt-out is set out in Article 10 of Protocol 36 to the Treaties, which is set out in full in Annex I. The Article states first of all that the normal powers of the Court of Justice of the European Union (CJEU) and the Commission will not apply for five years after the entry into force of the Treaty of Lisbon, to pre-Lisbon third pillar measures. This means that the Commission does not have power to bring infringement procedures against Member States to the CJEU during this time. Nor does the CJEU have jurisdiction over questions from national courts concerning EU law in this area, except where Member States chose to opt in to this jurisdiction (18 Member States have opted in, and the Court has delivered a number of judgments in this field). Also, the transitional rules cease to apply to an act which is amended after the Treaty of Lisbon comes into force, and a number of such acts have indeed been amended. This transitional period ends on 1 December 2014.

Secondly, Article 10 of Protocol 36 sets out a potential opt-out for the UK (but not for any other Member States) at the end of this five-year period. If the UK notifies the Council by 1 June 2014, all the pre-Lisbon third pillar acts cease to apply to it as of 1 December 2014, unless those acts have been amended and the UK has opted in to those amended measures. In this event, the Council shall decide the ‘necessary consequential and transitional arrangements’, and may also decide that the UK has to ‘bear the direct financial consequences, if any, necessarily and unavoidably incurred’ as a result. In both cases, the Council acts by a qualified majority vote on a proposal from the Commission. The UK does not participate in the first of these measures (consequential arrangements), but would participate in the second (financial consequences).

Thirdly, the UK can seek to opt back into to some of the measures it has opted out of ‘at any time afterwards’. If it does so, then the rules for opting into Justice and Home Affairs measures in either the Protocol on the Schengen acquis or the Protocol on Title V (JHA measures) apply. In practice, that means that the Council, acting unanimously, decides on re-admission of the UK to measures building on the Schengen acquis (ie measures set out in, or amending, implementing or closely related to the Schengen Convention on the abolition of border controls), while the Commission (with no role for the Council, unless the Commission refuses the UK’s request) decides on readmission of the UK to pre-Lisbon third pillar measures which do not build on the Schengen acquis. The Protocol concludes by stating that in such a case, the EU institutions and the UK ‘shall seek to re-establish the widest possible measure of participating of the [UK] in the aquis of the Union in the area of freedom, security and justice, without seriously affecting the practical operability of the various parts thereof, while respecting their coherence’.

The block opt-out in practice

The UK government indicated in 2012 that it was inclined to invoke the block opt-out, and then seek to opt in to a number of measures. In 2013, it officially invoked the block opt-out (well before the deadline of 1 June 2014), and indicated the 35 measures which it wished to opt back into. Informal negotiations then took place between the UK, the Council and the Commission, in particular during the Greek Council Presidency in the first half of 2014. The discussions were complicated somewhat by the UK’s request to begin participation in the second-generation SIS (known as SIS II) shortly before 1 December 2014, along with its request to amend the rules relating to SIS II alerts on the European Arrest Warrants in accordance with new EU legislation.

Following these negotiations, the UK has agreed in principle with both the Council and Commission on what it will opt back into. In theory, the Council and Commission decisions will both be adopted officially on 1 December 2014, unless there is some change of heart within one or both institutions.

The agreement with the Council takes the form of a draft Decision, which amends the original Council Decision admitting the UK to participate in parts of the Schengen acquis, as well as the later Council Decision putting part of the Schengen acquis into force in the UK. Annexes II and III to this analysis set out versions of these Council Decisions, which shows how their texts will be amended (the Council will later publish its own codified text of the amended Decisions).

The crucial substantive point here is that the UK will continue to be committed to participating in the Schengen Information System, which provides for exchange of information on European Arrest Warrants, wanted persons and missing objects. It will also continue to be bound by the main criminal law and police cooperation provisions of the Schengen acquis.

As for the other measures, the Commission has reported back on its discussions with the UK, providing a list of measures agreed with the UK. This constitutes almost all of the EU measures on mutual recognition in criminal matters (most notably the European Arrest Warrant), the creation of EU agencies (Europol, Eurojust) and exchange of information or databases, with a few exceptions: the Framework Decisions on mutual recognition of pre­trial decisions and probation and parole decisions, and the so-called ‘Prum’ Decisions on cross-border exchange of information on DNA, licence plate information and fingerprints.

It appears that there has been a modest amount of negotiation on the lists of measures which the UK sought to opt out of. As regards the Council Decision, one measure on the operational functioning of the SIS has been added to the list. The Commission’s deal with the UK includes a decision to opt in to three measures implementing the Europol Decision, as well as the Decision establishing the European Judicial Network. These additional measures which the UK agreed to opt in to are essentially technical, except for the European Judicial Network, which the UK government believes is essentially a useless talking shop.

Also, it should be noted that some pre-Lisbon measures were amended while discussions were going on, in particular the EU’s Convention on mutual assistance in criminal matters and its amending Protocol. The UK did not want to opt back in to these measures, but this objection is now moot, since the UK participates in the EU Directive on the European Investigation Order, which has replaced some of the corresponding provisions of those measures. So this means that it will continue to participate in the Convention and Protocol, without having to opt back in.

Furthermore, the UK government agreed to consider opting in to further measures in future. These include the two Prum Decisions on exchange of information, by 1 December 2015. If the UK does not opt in, it has agreed to repay some EU funds which it received for the purpose of preparing to participate. The other measure which the UK has agreed to consider joining is the Framework Decision on mutual recognition of probation and parole measures. On this measure, there is no reference to any deadline for review.

In effect, it will fall to the next UK government to decide on these issues (the next general election will be in May 2015). It will always be open to the UK government to opt back in to more measures if it wishes.

However, the UK government withdrew its request to participate in two measures (a Decision on a hate-crime network, and a Decision on special police intervention units) during the discussions. This decision may well have been taken so that the government can still claim that it is only opting back in to a total of 35 measures.

It should also be noted that the UK’s opt back in to some of the pre-Lisbon measures concerned could be very short-lived, since there are proposals to replace these measures which the UK has opted out of, but which have not yet been agreed. This is the case particularly with Europol and Eurojust. Negotiations are further advanced on the Europol proposal, where it looks as if the UK’s concerns may have been addressed, with the consequence that the UK would opt in to the future Europol Regulation after its adoption. However, it is too early to say if the UK might eventually opt in to the future Eurojust Regulation.

Finally, it should be noted that the UK’s attempt to opt in to SIS II only a few weeks before the general opt-in decisions, coupled with its demand for special treatment on this issue, failed, as previously documented in a Statewatch analysis. While the UK failed to get its way on that issue, it appears to have been largely successful in opting back into exactly what it wished to opt back in to.

Other transitional issues

Finally, the EU institutions will aim to clarify the legal position generally as from the end of the transition period. They will publish in the EU Official Journal a list of ‘Lisbonised’ measures, ie pre-Lisbon third pillar acts which have been amended since the Treaty of Lisbon entered into force. Also, the institutions had intended to consider which pre-Lisbon measures could now be considered obsolete, and which therefore could be repealed. But it appears that this latter process has not yet taken place.

The net result is a rather confusing situation, both in terms of the complexity of the EU ‘acquis’ in this area and of the UK’s role in it. There will be a complete list published of pre-Lisbon measures which are not yet Lisbonised, but no step has been taken (or can now be taken in time, before the end of the transitional period) to pull out the legal weeds from this garden. There will be two separate Decisions listing pre-Lisbon measures which the UK has opted back into, but it would also be useful to have a list of post-Lisbon measures which apply to the UK. It would not unduly task the Council and/or Commission to make the effort to publish online a constantly updated list of the measures which do or not apply to the UK (as well as Ireland and Denmark, which also have opt-outs), and five years was certainly enough time to examine the pre-Lisbon acquis to see which measures were obsolete.

Documentation

UK notification of opt-out: Council document 12750/13: http://www.statewatch.org/news/2014/jul/eu-council-Prot36-uk-notification-12750- 13.pdf
Draft Council decision on UK opt back in to Schengen acquis: Council document 10115/14
http://www.statewatch.org/news/2014/jul/eu-council-Prot36-6-draft-decision-schengen-acquis-10115-  14.pdf
Commission report on negotiations with UK on opting back in: Council document 10168/14: http://www.statewatch.org/news/2014/jul/eu-council-Prot36-9-art10-com-10168-14.pdf

Overview of opt-in process: Council document 10167/14:
http://www.statewatch.org/news/2014/jul/eu-council-Prot36-8-Art10-complementary-report-10167-14.pdf
List of pre-Lisbon third pillar measures which have been ‘Lisbonised’, or which are the subject of a proposal to ‘Lisbonise’ them: Council document 9930/14: http://www.statewatch.org/news/2014/jul/eu-council-Prot-4-lisbonised-third-pillar-acquis-9930- 14.pdf
UK SIS II discussions: http://www.statewatch.org/analyses/no-241-eu-uk-opt-out.pdfPrevious Statewatch Analyses:
The UK opt-out from Justice and Home Affairs law: the other Member States finally lose patience (March 2014): http://www.statewatch.org/analyses/no-241-eu-uk-opt-out.pdf
The UK’s planned ‘block opt-out’ from EU justice and policing measures in 2014 (October 2012): http://www.statewatch.org/analyses/no-199-uk-opt-out.pdf
The Mother of all Opt-outs? The UK’s possible opt-out from prior third pillar measures in June 2014 (February 2012):
http://www.statewatch.org/analyses/no-168-eu-uk-opt-out.pdf

Annex I – Protocol 36, Article 10
As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.

The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.

In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.

At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.

The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.

The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re­establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.

Annex II

Codified version of Council Decision on UK participation in Schengen acquis Additions in bold/underline; deletions in strikeout
Council Decision of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (2000/365/EC)

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1rst December 2014 is approaching: will the EU’s “creative ambiguity” on police and judicial cooperation in criminal matters finally draw to an end ?

Also published on EU Blog analysis as :“Metamorphosis of the third pillar: The end of the transition period for EU criminal and policing law”

by Emilio De Capitani

On 1st December 2014, after five years of “legal gestation”, the previous “third pillar” of EU law will finally transform itself from an intergovernmental larva into a supranational butterfly. But will this really ensure a coherent policy, correctly applied by Member States and in full compliance with human rights?

More precisely, in compliance with Article 10 of Protocol 36 to the Treaties (1), added by the Lisbon Treaty, all the EU measures dealing with police and judicial cooperation in criminal matters adopted before the entry into force of the Lisbon Treaty will be treated like all the other EU legislative measures as far as the jurisdiction of the CJEU is concerned. Their transposition should be verified on the ground and, in case of problems, the Commission will be entitled to bring the Member States to the CJEU, which will also have the power to interpret these measures following references for a preliminary ruling from all national courts (only some national courts can send questions at present).

Moreover, with the end of the last transitional period for the Area of Freedom Security and Justice (AFSJ) it will be possible on the basis of real and transparent data to decide if dozens of measures (such as the European arrest warrant or the PRUM decision) which have been negotiated in a different political and legal context should be revised to comply with the new EU constitutional framework.
Quite surprisingly the aforementioned deadline – which will inevitably have a profound impact on the Member States’ policies and on the rights of the EU citizens – is approaching without any sort of public debate by the civil society, the national parliaments or the academia.

Even at EU level during the last Justice and Home affairs Council where the point was on the agenda no delegations took the floor nor the recent European Council referred to it in the Guidelines framing the future of the freedom security and justice area.

UK opt-in, opt-out and re-opt-in…

Why this silence? It is more than likely that such a “diplomatic” reserve and understatement are due to the fact that the UK is currently negotiating with the Council and the Commission which will be its final position on the former EU third pillar measures. (see here) It is was indeed to comply with the UK’s “red lines” that in October 2007 in the final phase of the Lisbon Treaty negotiations, a five year period freezing the Commission and CJEU enforcement powers was inserted in Protocol 36 (transitional measures).

At that time the UK government’s aim was (and probably still is) to protect its common law systems, and its police and judicial processes from the risk of the CJEU’s “judicial activism”. According to a House of Lords report, the UK Government asked it because the “vast majority” of pre-Lisbon police and judicial cooperation (PCJ) measures were not drafted with CJEU jurisdiction in mind and had often been agreed at the “lowest common denominator” in order to secure unanimity. As a result, much of the drafting was “not of a high standard and may be open to expansive interpretation by the ECJ” (see point 91 of House Of Lords Report “EU police and criminal justice measures: The UK’s 2014 opt-out decision” HL Paper 159).

Very skilfully the UK also obtained in the same Protocol the right to opt out from all the former third pillar measures before May 2014 as well as the possibility of a second thought, after December 1st 2014 of agreeing with the Council (for Schengen related measures) and with the Commission a new opt-in on some (or all) the former third pillar measures. However, according to Protocol 26 the UK re-opt-in could be granted only “without seriously affecting the practical operability” of the third pillar measures and by “respecting their coherence”.

Last year the UK Government submitted to the Council its Opt-Out decision and is now informally negotiating the possible re-opt-in for around 35/37 third pillar measures (see here)

It is too early to know which will be the result of the EU-UK negotiations. However if the Council and the Commission will accept the UK re-opt-in request (which for some measures can be delayed after the end of 2015) the situation will not be extremely different from the one existing before the block opt-out – except that the UK will now be subject to the Commission and CJEU enforcement powers.

The difficult quest of the former third pillar acquis ….

The UK’s (and Denmark’s) peculiar situation aside, the definition of the pre-Lisbon acquis for police and judicial cooperation in criminal matters will be extremely important also for the other EU member States and, quite probably for the European Parliament (EP) and for the national parliaments. The EP is, since the end of 2009, a co-legislator also for police and judicial cooperation in criminal matters but will not be associated with the implementation of Protocol 36. As for national parliaments, they will now share with the EP wide scrutiny powers (Articles 70, 71 85 and 88 TFEU) on these policies, and will at last have the opportunity to check what happened in the EU outside their national borders and even more inside their national territory. Maybe the December 1st deadline could then be an occasion at least for some of them to verify if these EU measures have been correctly transposed and, if they have to be amended (as it still possible for measures such as Europol and Eurojust which are currently renegotiated at EU level).

A revised list of the former third pillar measures has been recently established by the Commission in cooperation of MS representatives. The 123 measures currently covered by Protocol 36 are very diverse: some of them are of quasi legislative nature (such as the Framework Decisions) some others (such as the international agreements or Conventions, and the Council Decision) even if not legislative, are binding, and some others are of uncertain nature as it is the case for the “Joint Actions” adopted under the Maastricht Treaty regime.

As far as the content is concerned these measures deal with:

– mutual recognition of national decisions (such as the European Arrest Warrant (EAW) the European Supervision Order, the mutual recognition of freezing orders; fines; confiscation orders, probation orders; and of prison sentences…);
– harmonization of the definitions of certain criminal offenses and minimum penalties;
– criminal procedures;
– cross-border cooperation, in particular between police and law enforcement agencies, including the exchange of information and the investigation of crime;
– EU agencies (Europol, Eurojust and the European Police College (CEPOL));
– agreements with third countries on information sharing, mutual legal assistance and extradition
The Commission’s list is not final because between now and December 1st some of the measures could still be replaced by texts currently under negotiation. Moreover the Commission has also announced that some of them – which can be considered obsolete – will be repealed.

…the problem of their transposition and operability …

To assess the “operability” of these measures the European Commission has to verify if they have been correctly transposed by the Member States. The Commission is already collecting the relevant information even if it is not yet entitled to open infringement procedures in case of non compliance by the Member States.

It is worth recalling that in some cases (such as for the European Arrest Warrant) the Commission has already submitted several implementing reports. For other cases, the Commission has only recently adressed to the Member States some pre-alert communications which should be taken in account to avoid judicial proceedings after December 1st 2014.

The first pre-alert Commission report deals with the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention. These Framework Decisions (FD) have to be seen as a package of coherent and complementary legislation that addresses the issue of detention of EU citizens in other Member States and has the potential to lead to a reduction in pre-trial detention or to facilitate social rehabilitation of prisoners in a cross border context (see here).

The first FD (transfer of Prisoners) allows a Member State to execute a prison sentence issued by another Member State against a person who remains in the first Member State. On the other hand, it establishes a system for transferring convicted prisoners back to their Member State of nationality or habitual residence (or to another Member State with which they have close ties) to serve their prison sentence. Article 25 of the Transfer of Prisoners FD in conjunction with Article 4(6) and 5(3) of the European arrest warrant, allows a Member State to refuse to surrender its nationals or residents or persons staying in the latter if the other Member State undertakes to enforce the prison sentence in accordance with the same FD.

The second FD (Probation and Alternative Sanctions) applies to many alternatives to custody and to measures facilitating early release (e.g. an obligation not to enter certain localities, to carry out community service or instructions relating to residence or training or professional activities). The probation decision or other alternative sanction can be executed in another Member State, as long as the person concerned consents.

The third FD (European Supervision ) concerns provisional release in the pretrial stage. It will enable a non-custodial supervision (e.g. an obligation to remain at a specified place or an obligation to report at specified times to a specific authority) to be transferred from the Member State where the non resident is suspected of having committed an offence to the Member State where he normally resides. This will allow a suspected person to be subjected to a supervision measure in his home Member State until the trial takes place in another Member State, instead of being placed into pre-trial detention.

It is worth recalling that at the time of the Commission Communication, well after the relevant deadlines, respectively 10, 14 and 16 Member States have not yet transposed the Framework Decisions.

Another pre-alert Commission report deals with the implementation of the Framework Decision 2008/675/JHA of 24 July 2008 on taking into account of convictions in the Member States of the European Union in the course of new criminal proceedings. This Framework Decision aims to ensure that similar legal effects are given to domestic convictions and convictions from other Member States. Its article 3 is based on the principle of simple assimilation of convictions and imposes as a matter of principle that the legal effects of foreign convictions must be equivalent to the legal effect of domestic convictions. More than 3 years after the implementation date, 6 Member States have yet to notify the measures transposing the obligations of this Framework Decision: BE, ES, IT, LT, MT and PT.

A third pre-alert Commission report deals with the Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of jurisdiction in criminal proceedings. This FD addresses the situations where potentially several Member States are competent to conduct criminal investigations in respect of the crime and proceedings against the alleged perpetrators. This poses challenges not only in terms of coordination and effectiveness of criminal prosecutions, but also with regard to respect for the fundamental principle of criminal law, also enshrined in the Charter of Fundamental Rights of the European Union (“the Charter”), that a person may not be prosecuted and convicted twice for the same offense (Ne bis in idem). More than 1 year after the implementation date, 13 Member States yet to notify the measures transposing the obligations of this Framework Decision: BG, DK, EE, EL, ES, FR, IE, IT, LT, LU, MT, SE and the UK. Seven Member States informed the Commission of the process of preparing relevant transposition measures at national level (BG, EL, ES, FR, LT, MT and SE). However, none of these Member States adopted the measures or notified the Commission at least before April 2014.

In all these pre-alert Communications the Commission has abundantly made clear that the non-implementation of the Framework Decisions by some Member States is problematic since those Member States who have properly implemented the Framework Decisions cannot benefit from their co-operation provisions in their relations with those Member States who did not implement them in time. As a consequence, when cooperating with a Member State who did not implement in time, even those Member States who did so will have to rely on the random and often lengthy practice of traditional mutual legal assistance in criminal matters without a reliable guarantee of a timely detection of bis in idem cases, which should already take place at early stages of criminal proceedings. Such a practice increases significantly a risk of double jeopardy.

…and the problem of their “coherence” and compliance with the EU Charter.

But the priority for the EU legislator in the coming months should be to verify if the former third pillar measures which were negotiated without taking in account the now binding Fundamental rights Charter are consistent with the new EU institutional and legal framework.

Even if some scholars and politicians try to sell the idea that there is a substantial continuity between the pre Lisbon and Post Lisbon era this is certainly not the case for the AFSJ, where the entry into force of the Charter has marked a clear change of perspective. A proof of this has been recently offered by the recent CJEU jurisprudence in the asylum domain where the presumption of compliance with fundamental rights by another Member State has been considered rebuttable in circumstances where fundamental rights are under threat (CJEU Judgment in NS) or to recall the data retention judgment, where the EU data retention Directive was annulled for violation of the principle of proportionality and of the Charter. If this is the position of the CJEU how many of the 123 measures in the Commission list will require a substantial revision to be considered “coherent” with the new post – Lisbon legal and constitutional framework?

Please don’t throw out real rights for fake security…

Pre-Lisbon measures should also be subject to the parliamentary scrutiny at European and national level as it is required since five years by Article 70 of the TFEU (2) . They should also be effective as they can affect EU citizens’ security and fundamental rights. However it is difficult to ascertain if the interference with EU citizens’ rights has been proportionnate and effective. As the post-Snowden saga has now abundantly showed, “intelligence led policing” and “operational cooperation” cover practices which can be extremely intrusive without offering clear results to the European and/or to the national parliaments.
Moreover what is even more worrying is that parliamentarians do not examine whether their country is playing any role in the so called EU “Internal security strategy” (see the latest Commission report here) or in the so called “policy cycle” which are less transparent than the “joint actions” negotiated under the Maastricht regime… Are these “soft law” initiatives still justified forty years after the first TREVI cooperation was launched in these domains? Or, after Lisbon, can the EU citizens expect from the EU and its Member States a legislative framework which can at the same time deliver effective security and protect fundamental rights?

This was announced by the new treaties and by the Charter five years ago and what EU citizens are deemed to obtain; it is then the duty of the incoming Commission and of the newly elected European Parliament to do what the European Council didn’t dare to propose.

NOTES
(1) PROT. 36 (Transitional Measures) Article 10
1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.
2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.
3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.
4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.
The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.
5. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.

(2) Article 70 TFEU

Without prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States’ authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.

Steve PEERS :New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Introduction

A new EU Regulation, published on EU’s Official Journal of June 27th , sets out new rules on maritime surveillance and rescue operations coordinated by Frontex, the EU’s borders agency. What effect will these rules have on reducing the tragic death toll of migrants in the Mediterranean? And what will happen to the asylum claims of those rescued or intercepted in the high seas?

These new rules are a response to the continued argument that the EU must bear at least some of the blame for the deaths of migrants in the Mediterranean. Furthermore, Member States’ authorities and Frontex have often been blamed for violent behaviour or ‘push-backs’: the forced return of migrants’ vessels to unsafe countries, which were condemned by the European Court of Human Rights in its 2012 judgment in Hirsi v Italy.

The Regulation replaces prior rules adopted by the Council alone in 2010, in the form of a Decision implementing the Schengen Borders Code,which was annulled by the Court of Justice of the European Union (CJEU) after the European Parliament (EP) challenged it on procedural grounds. According to the Court, an EU act concerning human rights and coercive measures had to be adopted by means of the EU’s legislative process.

That meant that the European Commission had to propose a legislative measure, which it did in April 2013. At first, a hard-line group of Member States opposed most of the provisions in this proposal concerning search and rescue and disembarkation (ie the rules on the destination of migrants who were intercepted and rescued), even after the particularly tragic loss of 300 migrants’ lives in autumn 2013. However, these Member States relented, and the European Parliament also pressed to retain and improve upon the Commission’s proposal.

The new Regulation was subsequently agreed, and will come into force on 17 July. But does it mean that the EU will be doing enough to address the loss of life and push-backs in the Mediterranean?

This post addresses these issues in turn, and concludes with an assessment of the issue of the accountability of Frontex. It is an updated and amended version of a previous Statewatch analysis on the new rules.

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