THE MISSING LINK: DIRECT EFFECT, CETA/TTIP AND INVESTOR-STATE DISPUTE SETTLEMENT

This blogpost has been published previously on ‚Verfassungsblog – On Matters Constitutional‘ on Wednesday, 7 January 2015

By Daniel Thym, Chair of Public, European and International Law, University of Konstanz

International treaties have rarely received more attention than the proposed free trade deals between the EU and the US and Canada. This entails that many law students and practitioners are confronted with a theme that does not feature prominently in legal education. In debates with students, I realise that preconceptions about the functioning of domestic legal systems are regularly projected upon the international sphere. One example is a demand that companies should challenge state action before domestic courts instead of dispute settlement bodies under the planned EU/US agreement (TTIP) and the proposed EU/Canada trade agreement (CETA). These claims often assume that national courts hold the competence to enforce corresponding rules. For lawyers working on domestic issues it seems self-evident that courts can apply the law.

Against this background, this blogpost focuses on a provision in the Draft CETA with Canada (Article 14.14: see the text below), whose relevance has not been acknowledged so far, including by the stimulating contributions to the Verfassungsblog Symposium on Investment Protection. On page 470 of the roughly 1600 pages of the consolidated CETA Draft Agreement, which the Commission regards as a template for free trade negotiations with the United States, we come across a final provision of seemingly minor relevance on ‘private rights’, which rejects the applicability of the agreement en passant. This reaffirms that the implications of the free trade deals would be less dramatic than some suggest.

Background: CETA and TTIP as International EU Agreements

In order to understand the relevance of Article 14.14 on private rights, we should apprehend that most segments of the free trade agreements would be binding upon Member States as an integral part of EU law. Axel Flessner may try to argue that the arrangements would constitute an ultra-vires-act (thereby initiating more tweets than any other contribution to the said symposium), but the plain Treaty text demonstrates that the legal picture is fairly evident.Article 207 TFEU declares that the EU’s Common Commercial Policy (CCP) allows for the conclusion of trade agreements on goods and services and embraces, among others, ‘foreign direct investment’, while Article 3 TFEU maintains that the conclusion of agreements in this area shall be an exclusive Union competence.

These provisions were a deliberate policy choice after decades of wrangles about the precise scope of the CCP. The Treaty of Lisbon was meant to replace earlier and ambiguous formulations with an overarching competence for the European Union. In its Lisbon Judgment, the German Federal Constitutional Court recognised the pertinence of this change: ‘With the exclusive competence as set out above, the Union acquires the sole power of disposition over international trade agreements which may result in an essential reorganisation of the internal order of the Member States.’ Judges in Karlsruhe gave the green light to the changes nonetheless, albeit with a minor caveat that ‘much argues in favour of assuming that the term “foreign direct investment” only encompasses investment which serves to obtain a controlling interest in an enterprise’ and excluded so-called portfolio investments (ie, non-controlling interests in companies) as a result.

This reference to the limits of the CCP is relevant, since it indicates, in general terms, that there remain uncertainties about the precise delimitation of competences for corollary aspects of international trade. For that reason, most national governments maintain that CETA and TTIP should be concluded as so-called ‘mixed agreements’, with the EU and all 28 EU Member States as signatories. If that view prevailed, national parliaments would have to give their consent as well. However, this would not modify the internal allocation of powers; the EU institutions are in the driving seat in the vast field of Union competence – both during the negotiations and with regard to legal effects. It is established case law that the legal effects of mixed agreements follow the rules of Union law for all matters that are covered by the Common Commercial Policy.

Domestic Application of Agreements concluded by the EU

The predominance of Union law in legal practice can obscure our awareness of the specificities of the international legal system. Law students across Europe learn in their undergraduate courses about the direct and supreme effect of supranational rules, but are not always familiar with public international law. Domestic courts have to apply Union law in pretty much the same was as national law, but this assumption cannot be extended to public international law without modification, including in situations in which the EU concludes international agreements with third states.

It is true that the ECJ maintains that international agreements can have direct effect as an integral part of the Union legal order – and an example demonstrates that this can have critical implications: for example, judges in Luxembourg decided in July that Member States cannot automatically require the spouses of Turkish nationals to acquire basic language skills of the host country. Legally, this conclusion rests upon an interpretation of the so-called standstill provision for the self-employed in the Additional Protocol of 1970 to the Association Agreement between Turkey and today’s European Union. In the terminology of international trade law, the case concerned a so-called non-tariff barrier to the freedom of establishment. It is these non-tariff barriers that take centre stage in both CETA and TTIP negotiations (neither of the latter treaties will affect migration, though).

If the underlying legal arguments about direct effect and court jurisdiction extended to free trade deals with Canada and the United States, the implications could be dramatic indeed. Both the ECJ and domestic courts would hold the power to correct domestic or supranational legislation, whenever it falls foul of CETA or TTIP. Yet, this outcome is no foregone conclusion, since the ECJ opts for a direct applicability of international agreements ‘only where the nature and the broad logic of the latter do not preclude this.’ In deciding whether this is the case, the Court considers, among other things, the purpose of the agreement, the will of the parties and the question of reciprocity, i.e. whether the Union would be alone in recognising direct effect. Luxembourg may have largely ignored the question of reciprocity with regard to Turkey and other neighbours of the EU, but it traditionally takes centre stage in the evaluation of trade liberalisation agreements.

Article 14.14 of the CETA Draft Treaty

Once we have understood the far-reaching implications of direct applicability, we may appreciate the bearing of the clause on private rights in the final provisions of the consolidatedDraft CETA Agreement, which states: ‘Nothing in this Agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement to be directly invoked in the domestic legal systems of the Parties.’

That is nothing less than the official denial of direct effect in the operative treaty text; neither the ECJ nor domestic courts would hold the power to apply CETA rules in domestic proceedings or to annul legislation which contradicts trade law. CETA and TTIP would get the same treatment that the ECJ accords to WTO law, which also does not have direct effect in the EU legal order and the domestic legal systems of the Member States – not even in situations, in which the appellate body of the WTO Dispute Settlement Mechanism confirmed that EU legislation falls foul of WTO standards.

Denial of direct effect is an important stumbling block for the long-term success of any free trade agreement, especially when it comes to the elimination of non-tariff barriers to trade, since corresponding rules are often formulated in an open manner. The real-life implications of such vaguely formulated provisions depends decisively upon the continued will of the parties and the availability of control and enforcement mechanisms – as the experience with non-tariff barriers to trade in the EU single market and the example of language requirements for spouses of Turkish nationals demonstrate. Without institutional control mechanism, vague treaty formulations are often ineffective.

Implications for the Debate about Investor-State-Dispute Settlement

In the light of Article 14.14 of the CETA Draft Agreement, we may have to re-consider our perspective on the proposed investor-state-dispute settlement rules in both CETA and TTIP. Critics will use the absence of direct application as an argument to decry the special treatment for investors; supporters, by contrast, will argue with the Commission that the dispute settlement bodies are a compensation for domestic legal remedies, which would not be available for the substantive rules of CETA and TTIP. I personally share the opinion of Christian Tams that the debate should focus on the desirability of special rules for investors (and not the question of procedure). The latter may be superfluous in relations with the US and Canada, but to abandon them would render it difficult to insist upon similar provisions in negotiations with China, Russia or other states we trust less.

In any case, the absence of direct effect in domestic proceedings shows that the legal implications of CETA and TIIP would be less dramatic than some commentators in the public debate suggest. Courts in Europe would not hold the power to annul domestic or supranational legislation, which violates the agreements – a power that also the dispute settlement bodies would be denied explicitly, together with the option for the state parties to force their reading of the agreements upon the arbiters by means of an authoritative interpretation. This would orientate the dispute settlement rules in CETA and TTIP towards inter-state bargaining, pretty much like in the WTO context.

The denial of direct application demonstrates that both the CETA Draft Agreement and the TTIP negotiation position are far removed from resembling anything like EU-style integration through law – and I consider this to be a good thing given that any dynamic interpretation would lack much of the democratic legitimacy and procedural constraints, which we have, notwithstanding all the deficits, in the European context. It seems to me that it is the biggest benefit of the debate about CETA and TTIP to this date that the broader public has started discussing the governance of economic globalisation. That debate will stay with us, even if an seemingly unimpressive provision on page 470 of the CETA Draft Agreement excludes the domestic enforcement of the transatlantic trade rules.

 

THE UPS AND DOWNS OF DUAL CITIZENSHIP – THE CJEU ON DUAL TURKISH/EU CITIZENS AND SOCIAL RIGHTS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

By Professors : ELSPETH GUILD, (QUEEN MARY UNIVERSITY OF LONDON), KEES GROENENDIJK, (RADBOUD UNIVERSITY) AND STEVE PEERS, (UNIVERSITY OF ESSEX)

In recent years, an increasing number of Turkish citizens residing in the EU have become dual citizens of Turkey and an EU Member State. Like other dual citizens of a Member State and a non-Member State, they can invoke EU free movement law to move and reside in another Member State (see the CJEU’s Micheletti judgment). But as a general rule, EU free movement law will not confer rights in their home Member State. So in that case, can they still rely upon their Turkish citizenship to claim rights under the EU/Turkey association agreement?

Back in 2012, in its judgment in Kahveci and Inan, the CJEU determined that dual Turkish/Dutch nationals were entitled to rely on their Turkish citizenship to enjoy the benefits of the EU/Turkey association agreement as regards family reunification and thus escape the stricter national legislation for own nationals’ family members. So until the recent decision earlier this month in Demirci, it looked as if Turkish citizens with a second passport from a Member State were more or less free to choose which one to rely on in order to benefit from EU law. But the Demirci judgment changes the rules slightly and provides a more elaborated legal reasoning to when dual nationals of Turkey and a Member State may use one or other of their citizenship.

The finding is rather ominous so we will start some background on the facts of the case and conclude with a rather optimistic analysis where we conclude that dual nationality is still a strong source of rights in EU law and that this judgment is perhaps the exception.

The Facts:

Mr Demirci and his fellow applicants are all former Turkish workers who had worked in the Netherlands for many years fulfilling the conditions of the secondary legislation of the EU/Turkey Association Agreement, Decision 1/80 of the EU/Turkey Association Council, which regulates aspects of the immigration status of Turkish workers and their family members. They had all naturalised as Dutch nationals but kept their Turkish citizenship. They all became disabled and incapacitated for work and thus permanently left the labour force. They received a Dutch social benefit designed to provide income for the incapacitated. But this benefit is rather low so they applied for a top up benefit to bring their income closer to that of the minimum wage. They were all awarded the top up benefit.

Then a series of things happened. The men retired with their families to Turkey. The Dutch Government began to change the rules on the top up benefit to exclude anyone not resident in the Netherlands (or the EU). Mr Demirci and his colleagues first had their top up benefit reduced then it was cut off altogether on the basis that they no longer lived in the Netherlands (or EU). They appealed, relying on their Turkish nationality, on the basis that this treatment was contrary to the EU/Turkey Association Agreement measure on social security – Association Council Decision 3/80. The argument went that the Dutch authorities may be able to cut off the top up benefit to their own nationals living outside the EU as this is a matter wholly internal to one Member State. But they cannot cut off the top up benefit to Turkish nationals who have fulfilled the conditions as workers in a Member State under Decision 1/80 as this is a matter of EU law (which does not permit such an act – Article 6(1) of Decision 3/80 protects Turkish workers who retire to Turkey as regards receipt of social benefits). Several years ago, the CJEU ruled in Akdas that such rules infringed Decision 3/80 as regards Turkish nationals who returned to Turkey. But could a dual citizen of Turkey and a Member State rely on that judgment, as a Turkish citizen – or would he or she be prevented from doing so, as a national of that Member State?

The reasoning

The CJEU bluntly tells Mr Demirci and his colleagues that they cannot rely on Decision 3/80 to object to the residence requirement imposed by the Dutch authorities (para 52). This is because, according to the Court, the objectives of the Decision and the EU/Turkey regime is to ensure the progressive integration of Turkish workers into the territory of the host Member State. The social security provisions consolidate that objective.

The Court provides two main reasons for this position. First, because Mr Demirci and his colleagues had acquired Dutch nationality they are in a particular situation as regards the Agreement. Citizenship is ‘the most accomplished level of integration’ of a person into the host state (para 54). This new citizenship means that the former Turkish worker can now enter and reside freely in the Netherlands or indeed any other EU Member State where he or she might wish to go. Conversely, in Kahveci & Inan the Court did not accept the argument of the Dutch government that naturalisation is the pinnacle of integration. In that case AG Sharpston argued that naturalisation may be an indication that an immigrant is on his path to integration, but that is not the same as saying that he has become completely integrated. .

But as Turkish nationals, Mr Demirci and his friends could only live in Turkey or their host Member State (the Netherlands) and so they have no free movement rights. Further as such, they only benefit from certain rights in the host Member State. So, says the Court, for the purposes of paying them a benefit, it is reasonable for the national authorities to make this subject to the same rules as apply to all other Dutch nationals (para 57).

Secondly, dual Turkish/Dutch nationals would be placed in a better position than other EU citizens if they were allowed to have the top up benefit even though they did not fulfil the residential requirement (para 58). The right to export to Turkey social benefits in Decision 3/80, according to the Court, is a sort of compensation for the fact that Turkish nationals will no longer be able to return to and live in the host Member State. As the CJEU held inBozkurt, a Turkish national ceases to be a protected person under Decision 1/80 if he or she becomes totally and permanently incapacitated for work (para 64). So there is a justification for applying different rules to those who are exclusively Turkish nationals as they have a much less secure residence status in the host Member State and no free movement rights in EU law. They therefore need the extra protection of the export right. For dual Turkish/Dutch nationals, they can always move back to the EU and fulfil the residential requirements for the top up benefit (even if they would rather not) (para 65).

 Distinguishing Kahveci & Inan

As mentioned above, this judgment takes a different approach from the CJEU’s own jurisprudence in Kahveci & Inan where it held that dual Turkish/Dutch nationals were allowed to rely on their Turkish nationality for the purposes of the EU/Turkey family reunification rules, in order to benefit from the expulsion of Turkish workers’ family members, which are more favourable than the rules applying to the expulsion of the family members of Dutch citizens in the Netherlands. However, the CJEU is anxious to protect its ruling in Kahveci and goes to some lengths to explain why the finding in Kahveci is consistent with that which they were giving in Demirci (para 66). The argument goes like this. Family reunification enhances integration, for Turkish workers who are already legally integrated into the host Member State. Article 7 of Decision 1/80 deepens the last integration of a Turkish worker by granting to that worker’s family members, after three years residence, access to the labour force (para 67). So, acquisition of national citizenship could not be used as a reason to deprive the worker of the benefit of family reunification in Decision 1/80 (para 68). By contrast with the facts in Demirci, the family’s integration would be hindered if it was denied on the basis of dual citizenship. Further in Kahveci the person was seeking to benefit family members who are also Turkish nationals (para 70). Presumably this reasoning means that dual Turkish/EU citizens can also invoke the ‘standstill’ clause in the EU/Turkey association agreement, as interpreted last year in the CJEU’s Dogan judgment (discussed here), to avoid stricter rules for family reunion that apply to a Member State’s own nationals.

But in the case of Mr Demirci he can always go back to the Netherlands (or the EU) to satisfy the residential requirement to get the top up (para 69). Further all he and his colleagues wanted was a top up benefit for themselves (para 71). Finally, the CJEU considered that if Mr Demirci could rely on Decision 1/80 to have the top up benefit while not fulfilling the residential requirement, this would put them in a better situation than that of other citizens of the Union (and thus contravene Article 59 of the Additional Protocol to the EU/Turkey association agreement, which rules out Turkish citizens being better off than EU citizens).

The Court’s approach seems to be that there is something inherently wrong about letting Mr Demirci and his colleagues have their cake and eat it too. The arguments may not be the most compelling in the world but they show a clear judicial line. The CJEU will favour Turkish nationals living in the EU even if they have taken a second citizenship so long as this improves their long lasting integration. But they cannot rely on their Turkish citizenship after naturalization when what they seek is a financial benefit which is subject to a residential requirement for EU citizens (and which they do not fulfil because they have left the EU).

The Court appears to implicitly return somewhat to its reasoning in the Mesbah judgement of 1999, where it held that the Moroccan mother of a Belgian-Moroccan worker who was living with her son in Belgium could not rely on the clause prohibiting discrimination on grounds on nationality in the EEC-Morocco Association Agreement to claim a disablement allowance that under Belgian law was only granted to Belgian nationals. The Court inDemirci, however, does explicitly point to the difference with Kahveci & Inan: “[in] the present case, by contrast, the respondents in the main proceedings are relying on the provisions of Decision 1/80 on their own behalf and in their own interest” (para 70). The Court leaves the door open for the Turkish spouse of a Turkish/Dutch (ex-) worker to rely on Decision 3/80, because the spouse, not having Dutch nationality, would be unable to return to the Netherlands.

Conclusions

The most important thing to remember about the Demirci decision is that it does not undermine the Court’s judgment in favour of dual rights for dual citizens in Kahveci & Inan. Yes, Turkish nationals can rely on the EU/Turkey association agreement family reunion rules even after they have naturalized in their host Member State, provided they are allowed to have dual nationality (it isn’t yet clear if they could invoke the EU’s own family reunion Directive). But they cannot rely on their non-EU citizenship after they leave the EU to get around a national residential requirement for the export of a social benefit if such a requirement applies to nationals of the host Member State.

Terrorists and serious criminals beware ! Your travel data can tell everything about you..

by Emilio DE CAPITANI

After the last terrorist attacks the President of The European Council, the EU interior ministers, the EU Counter-Terrorism Coordinator (CTC), the European Commission, some national parliaments and even the press have raised their voice against the European Parliament which is blocking since years a legislative measure on the access by law enforcement authorities to the passenger name record (PNR) managed by the airlines when you make a flight reservation.
Beware!
PNR data are not used to find criminals or already known dangerous persons.
This will be a too easy solution but will require a change in the Member state internal security policy. Member states remain extremely jealous of their security related data. According to the current EU legislation (and the Europol revised proposal) data dealing with already known criminals, terrorists, serial killers dangerous persons remain under the control of each national authority which can share them with other EU member States and EU agencies, (such as Europol and Eurojust), only on voluntary basis.

On the contrary PNR data of ordinary citizens could be mandatory collected from airlines and shared to a enable Law enforcement authorities “..to identify persons who were previously “unknown”, i.e. persons previously unsuspected of involvement in terrorism or serious crime, but whom an analysis of the data suggests may be involved in such crime and who should therefore be subject to further examination by the competent authorities.”

The (non exhaustive) list of “serious crimes” which according to the Council and the Commission can be prevented thanks to these miraculous bits of information is indeed impressive :
1. participation in a criminal organisation, 2. trafficking in human beings, 3. sexual exploitation of children and child pornography, 4. illicit trafficking in narcotic drugs and psychotropic substances, 5. illicit trafficking in weapons, munitions and explosives, 6. fraud, 7. laundering of the proceeds of crime, 8. computer-related crime,9. environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties, 10. facilitation of unauthorised entry and residence, 11. illicit trade in human organs and tissue, 12. kidnapping, illegal restraint and hostage-taking, 13. organised and armed robbery, 14. illicit trafficking in cultural goods, including antiques and works of art, 15. forgery of administrative documents and trafficking therein, 16. illicit trafficking in hormonal substances and other growth promoters, 17. illicit trafficking in nuclear or radioactive materials, 18. unlawful seizure of aircraft/ships, 19. sabotage, and 20. trafficking in stolen vehicles.

But which kind of data are so meaningful that they to reveal such diverse kinds of criminal behavior ?

The (again, non exhaustive) list of these data is attached to the draft Directive and is as follows:
(1) PNR record locator (2) Date of reservation/issue of ticket (3) Date(s) of intended travel (4) Name(s) (5) Address and contact information (telephone number, e-mail address) (6) All forms of payment information, including billing address (7) Complete travel itinerary for specific PNR (8) Frequent flyer information (9) Travel agency/travel agent (10) Travel status of passenger, including confirmations, check-in status, no show or go show information (11) Split/divided PNR information (12) General remarks (including all available information on unaccompanied minors under 18 years, such as name and gender of the minor, age, language(s) spoken, name and contact details of guardian on departure and relationship to the minor, name and contact details of guardian on arrival and relationship to the minor, departure and arrival agent) (13) Ticketing field information, including ticket number, date of ticket issuance and one-way tickets, Automated Ticket Fare Quote fields (14) Seat number and other seat information (15) Code share information (16) All baggage information (17) Number and other names of travellers on PNR (18) Any Advance Passenger Information (API) data collected (inter alia document type, document number, nationality, country of issuance, date of document expiration, family name, given name, gender, date of birth, airline, flight number, departure date, arrival date, departure port, arrival port, departure time, arrival time) (19) All historical changes to the PNR listed in numbers 1 to 18.

The draft Council text allows Member States also to collect other personal data if they so wish. (Guess if also the place of birth was added it would be possible to know also the Astrological profile and we all know after thousand years of consistent scientific observation that people with the sun or ascendant in Scorpio can be extremely dangerous..)

On this basis You still consider that this “machinery” deemed to filter millions a record a day by 28 different Passenger Unit in the member states without a meaningful judicial control and storing them for five years is not only an abuse of fundamental rights of millions of passengers, but is also contrary to the freedom of movement protected by the Treaty and the Charter, and is disproportionate? Moreover is contrary to the rule of law principle discriminatory because data on passengers will differ simply because of the different methods followed by each airline when dealing with their reservation systems?

Do you still think that such a machinery which in the US is backed by an intelligence counter terrorism endeavor of hundred billion dollars per year, will work in countries where police has hardly the resource to pay the petrol for their cars and were the first reflex is not to share “its” criminal records with the other member states and even less with EU agencies (which also stand side by side only for the family photo of the annual budget before the European Parliament) ?

In this framework would not be much wise, as a matter of priority, for the European Union to prevent and fight terrorism and serious crime by interconnecting the member states criminal record systems and by adding also the data of third country nationals who have already been convicted and condemned in their country for serious crimes?

Do you not consider that 28 national PNR (following each one its own profiling tactics) will be useless at European level where in any case only 2% of the Europol data deal with terrorist and are fed by only 4 of the 28 EU Countries ?

Last but not least, a real terrorist and criminals will not be tempted to avoid all of this by using false documents (easily accessible on internet) or, more safely, by keeping a train ?

Read the text below and (maybe) you will change your mind. But if you still consider that the PNR is the silver bullet to fight terrorists I have a used car that can be of your interest..

——————————————
COUNCIL OF THE EUROPEAN UNION
Brussels, 23 April 2012
8916/12
Interinstitutional File: 2011/0023 (COD)
GENVAL 23 AVIATION 73 DATAPROTECT 52 CODEC 1024
NOTE
From: Presidency
to: Council
No. prev. doc.: 8448/1/12 REV 1 GENVAL 17 AVIATI*N 60 DATAPR*TECT 40 C*DEC 897
Subject: Proposal for a Directive of the Council and the European Parliament on the use of
Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime

Background

1. The Commission submitted the proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for law enforcement purposes to the Council on 17 November 2007. This proposal was discussed in detail during the Slovenian, the French and the Czech Presidency. When the Lisbon Treaty entered into force, the proposal, which was not yet adopted, became legally obsolete.

2. On 3 February 2011 the Commission presented a proposal for a Directive of the European Parliament and of the Council on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime.

3. At the Council meeting on 11 April 2011, a discussion was held on whether intra-EU flights should be included in the scope of the draft Directive. Further to that discussion, the
preparatory work on the draft PNR Directive continued at expert-level at the Working Party on General Matters, including Evaluations on the basis of the indication by the Council that the Directive should allow individual Member States the option to mandate the collection of PNR data with regard to intra-EU flights and that the collection and processing of such data should be subject to the legal regime created by the PNR Directive1.

4. Since the Commission presented its proposal, the Working Party on General Matters, including Evaluations has worked on the proposal for over a year. The scope of the proposal has been thoroughly discussed and further refined and it is now established for which purposes and under which conditions PNR data collected under the Directive can be used. A few Member States have argued in favour of extending the scope of the Directive to other purposes than those presently covered. It is, however, the Presidency’s assessment that a clear and strict purpose limitation is important in order to safeguard the proportionality of the Directive. The Presidency therefore considers that no further changes should be made to the scope of the Directive at the present stage. The review clause in the proposal will, however, allow for future revision of the Directive on the basis of national experiences.

5. The Presidency considers that the extensive work on the file and the considerable efforts that have been made to take all views into account during the Hungarian, Polish and Danish Presidency have resulted in a well-balanced draft Directive.
6. Nine delegations maintain a general scrutiny reservation on the proposal, two have a general reservation and two hold a parliamentary scrutiny reservation.

Retention period

7. The Commission had proposed an initial storage period of 30 days, followed by a further retention period of five years of masked out data. The negotiations have shown that an initial storage period of 30 days is generally considered much too short from an operational point of view. Article 9 has been redrafted in such a way that the overall retention period of 5 years is subdivided into two periods: a first period in which the data are fully accessible and a second period during which the data are masked out and where full disclosure of the data is subject to strict conditions. Taking into consideration the operational needs the initial retention period is set at two years. In comparison the initial retention period in the 2011 EU-Australia Agreement, to which the Council has agreed and the EP has given its consent, is three years.

Inclusion of intra-EU flights

8. Article 1a, which has been drafted in line with the indications given at the Council meeting on 11 April 2011, allows Member States to apply this Directive to all or selected intra-EU flights. Hence, the Article allows any Member State to collect PNR data from those intra-EU flights it considers necessary in order to prevent, detect, investigate or prosecute serious crime or terrorism. It thus constitutes a compromise between those Member States that are in favour of mandatory inclusion of all intra-EU flights and those that are opposed to any inclusion of intra-EU flights.

9. The Presidency considers the above solutions as part of a package, which constitutes a compromise between those Member States which would prefer to limit the impact of the collection and processing of PNR data and those Member States which are in favour of an extension of the scope of the collection and processing of PNR data. At the Coreper meeting of 18 April 2012 some Member States maintained for the time being their reservations on the issues of retention periods and intra-EU flights. However, only three delegations indicated that they could not accept the overall package as a basis for commencing negotiations with the EP.

10. In view of the above, the Presidency invites the Council to confirm the compromise text set out in the Annex as a basis for starting the negotiations with the Parliament.

ANNEX

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the use of Passenger Name Record (PNR) data for the prevention, detection, investigation
and prosecution of terrorist offences and serious crime

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 82(1)(d) and 87(2)(a) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national Parliaments,
Having regard to the opinion of the European Economic and Social Committee2,
Having regard to the opinion of the Committee of the Regions3,
Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) On 6 November 2007 the Commission adopted a proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) data for law enforcement purposes. However, upon entry into force of the Treaty of Lisbon on 1 December 2009, the Commission’s proposal, which had not been adopted by the Council by that date, became obsolete.

(2) The `Stockholm Programme An open and secure Europe serving and protecting the citizens’4 calls on the Commission to present a proposal for the use of PNR data to prevent, detect, investigate and prosecute terrorism and serious crime.

(3) In its Communication of 21 September 2010 “*n the global approach to transfers of Passenger Name Record (PNR) data to third countries” the Commission outlined certain core elements of a Union policy in this area.

(4) Council Directive 2004/82/EC of 29 April 2004 on the obligation of air carriers to communicate passenger data5 regulates the transfer of advance passenger data by air carriers to the competent national authorities for the purpose of improving border controls and combating illegal immigration.

(5) PNR data are necessary to effectively prevent, detect, investigate and prosecute terrorist offences and serious crime and thus enhance internal security, inter alia by comparing them with various databases of persons and objects sought, to construct evidence and, where relevant, to find associates of criminals and unravel criminal networks.
(6) ….

(7) PNR data enable to identify persons who were previously “unknown”, i.e. persons previously unsuspected of involvement in terrorism or serious crime, but whom an analysis of the data suggests may be involved in such crime and who should therefore be subject to further examination by the competent authorities. By using PNR data it is possible to address the threat of terrorism and serious crime from a different perspective than through the processing of other categories of personal data. However, in order to ensure that the processing of data of innocent and unsuspected persons remains as limited as possible, the aspects of the use of PNR data relating to the creation and application of assessment criteria should be further limited to terrorist offences and relevant forms of serious crime. Furthermore, the assessment criteria shall be defined in a manner which ensures that as few innocent people as possible are identified by the system.

(8) Air carriers already collect and process PNR data from their passengers for their own commercial purposes. This Directive should not impose any obligation on air carriers to collect or retain any additional data from passengers or to impose any obligation on passengers to provide any data in addition to that already being provided to air carriers.

(9) Some air carriers retain any collected advance passenger information (API) data as part of the PNR data, while others do not. The use of PNR data together with API data has added value in assisting Member States in verifying the identity of an individual and thus reinforcing their law enforcement value and minimising the risk of carrying out checks and investigations on innocent people. It is therefore important to ensure that, where air carriers collect API data, they should transfer it, irrespective of whether the API data is retained as part of the PNR data or not.

(10) In order to prevent, detect, investigate and prosecute terrorist offences and serious crime, it is essential that all Member States introduce provisions laying down obligations on air carriers operating extra EU-flights, and if the Member State wishes to do so also on air carriers operating intra EU-flights, to transfer any collected PNR and API data. These provisions should be without prejudice to Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data.

(11) The processing of personal data must be proportionate to the specific security goals pursued by this Directive.

(12) The definition of terrorist offences applied in this Directive should be the same as in Council Framework Decision 2002/475/JHA on combating terrorism6 and the definition of serious crime applied in this Directive should be the same as in Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedure between Member States7. The list of relevant serious crime with relation to which PNR data may be used for the creation and application of assessment criteria should be based on Framework Decision 2002/584/JHA.

(13) PNR data should be transmitted to a single designated unit (Passenger Information Unit) in the relevant Member State, so as to ensure clarity and reduce costs to air carriers. The Passenger Information Unit may have different locations in one Member State and Member States may also jointly set up one Passenger Information Unit.

(13a) It is desirable that co-financing of the costs related to the establishment of the national Passenger Information Units will be provided for under the instrument for financial support for police cooperation, preventing and combating crime, and crisis management as part of the Internal Security Fund.

(14) The contents of any lists of required PNR data to be obtained by a Passenger Information Unit should be drawn up with the objective of reflecting the legitimate requirements of public authorities to prevent, detect, investigate and prosecute terrorist offences or serious crime, thereby improving internal security within the Union as well as protecting the fundamental rights of persons, notably privacy and the protection of personal data. Such lists should not be based on a person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health or sexual life. The PNR data should contain details on the passenger’s reservation and travel itinerary which enable competent authorities to identify air passengers representing a threat to internal security.

(15) There are two possible methods of data transfer currently available: the `pull’ method, under which the competent authorities of the Member State requiring the data can reach into (access) the air carrier’s reservation system and extract (`pull’) a copy of the required data, and the `push’ method, under which air carriers transfer (`push’) the required PNR data to the authority requesting them, thus allowing air carriers to retain control of what data is provided. The `push’ method is considered to offer a higher degree of data protection and should be mandatory for all air carriers.

(16) The Commission supports the International Civil Aviation *rganisation (ICA*) guidelines on PNR. These guidelines should thus be the basis for adopting the supported data formats for transfers of PNR data by air carriers to Member States. This justifies that such supported data formats, as well as the relevant protocols applicable to the transfer of data from air carriers should be adopted in accordance with the examination procedure provided for in Regulation (EU) No182/2011 of the European Parliament and of the Council of 16 February 2011 lying down rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers8.

(17) The Member States should take all necessary measures to enable air carriers to fulfil their obligations under this Directive. Dissuasive, effective and proportionate penalties, including financial ones, should be provided for by Member States against those air carriers failing to meet their obligations regarding the transfer of PNR data.

(18) Each Member State should be responsible for assessing the potential threats related to terrorist offences and serious crime.

(19) Taking fully into consideration the right to the protection of personal data and the right to non-discrimination, no decision that produces an adverse legal effect on a person or seriously affects him/her should be taken only by reason of the automated processing of PNR data. Moreover, in respect of Article 21 of the Charter of Fundamental Rights of the European Union no such decision should discriminate on any grounds such as a person’s sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.

(20) Member States should share with other Member States the PNR data that they receive where this is necessary for the prevention, detection, investigation or prosecution of terrorist offences or serious crime. The provisions of this Directive should be without prejudice to other Union instruments on the exchange of information between police and judicial authorities, including Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police *ffice (Europol)9 and Council Framework Decision 2006/960/JHA of 18 September 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union10. Such exchange of PNR data between law enforcement and judicial authorities should be governed by the rules on police and judicial cooperation.

(21) The period during which PNR data are to be retained should be proportionate to the purposes of the prevention, detection, investigation and prosecution of terrorist offences and serious crime. Because of the nature of the data and their uses, it is necessary that the PNR data are retained for a sufficiently long period for carrying out analysis and for use in investigations. In order to avoid disproportionate use, it is necessary that, after an initial period, the data are depersonalised through masking out and that the full PNR data are only accessible under very strict and limited conditions.

(22) Where specific PNR data have been transmitted to a competent authority and are used in the context of specific criminal investigations or prosecutions, the retention of such data by the competent authority should be regulated by the national law of the Member State, irrespective of the retention periods set out in this Directive.

(23) The processing of PNR data domestically in each Member State by the Passenger Information Unit and by competent authorities should be subject to a standard of protection of personal data under their national law which is in line with Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters11.

(24) Taking into consideration the right to the protection of personal data, the rights of the data subjects concerning the processing of their PNR data, such as the right of access, the right of rectification, erasure and blocking, as well as the rights to compensation and judicial remedies, should be in line with Framework Decision 2008/977/JHA.

(25) Taking into account the right of passengers to be informed of the processing of their personal data, Member States should ensure they are provided with accurate information about the collection of PNR data and their transfer to the Passenger Information Unit.

(25a) This Directive allows the principle of public access to official documents to be taken into account.

(26) Transfers of PNR data by Member States to third countries should be permitted only on a case-by-case basis and in compliance with Framework Decision 2008/977/JHA. To ensure the protection of personal data, such transfers should be subject to additional requirements relating to the purpose and the necessity of the transfer.

(27) The national supervisory authority that has been established in implementation of Framework Decision 2008/977/JHA should also be responsible for advising on and monitoring of the application and of the provisions adopted by the Member States pursuant to this Directive.

(28) This Directive does not affect the possibility for Member States to provide, under their domestic law, for a system of collection and handling of PNR data for purposes other than those specified in this Directive, or from transportation providers other than those specified in the Directive, provided that such domestic law respects the Union acquis.

(29) This Directive is without prejudice to the current Union rules on the way border controls are carried out or with the Union rules regulating entry and exit from the territory of the Union.

(30) As a result of the legal and technical differences between national provisions concerning the processing of personal data, including PNR, air carriers are and will be faced with different requirements regarding the types of information to be transmitted, as well as the conditions under which this information needs to be provided to competent national authorities. These differences may be prejudicial to effective cooperation between the competent national authorities for the purposes of preventing, detecting, investigating and prosecuting terrorist offences or serious crime.

(31) Since the objectives of this Directive cannot be sufficiently achieved by the Member States, and can be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(32) This Directive respects the fundamental rights and the principles of the Charter of Fundamental Rights of the European Union, in particular the right to the protection of personal data, the right to privacy and the right to non-discrimination as protected by Articles 8, 7 and 21 thereof and has to be implemented accordingly. The Directive is compatible with data protection principles and its provisions are in line with the Framework Decision 2008/977/JHA. Furthermore, and in order to comply with the proportionality principle, the Directive, on specific issues, will have stricter rules on data protection than the Framework Decision 2008/977/JHA.

(33) In particular, the scope of this Directive is as limited as possible, as it allows retention of PNR data in the Passenger Information Units for period of time not exceeding 5 years, after which the data should be deleted, as the data should be depersonalised through masking out after an initial period, and as the collection and use of sensitive data is prohibited. In order to ensure efficiency and a high level of data protection, Member States are required to ensure that an independent national supervisory authority is responsible for advising and monitoring the way PNR data are processed. All processing of PNR data should be logged or documented for the purpose of verification of its legality, self-monitoring and ensuring proper data integrity and security of the processing. Member States should also ensure that passengers are clearly and precisely informed about the collection of PNR data and their rights.

(34) In accordance with Article 3 of the Protocol (No 21) on the position of United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, those Member States have notified their wish to participate in the adoption and application of this Directive.
(35) In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS

Article 1 Subject matter and scope
1. This Directive provides for the transfer by air carriers of Passenger Name Record (PNR) data of passengers of extra-EU flights to and from the Member States, as well as the processing of that data.
2. The PNR data collected in accordance with this Directive may be processed only for the purpose of prevention, detection, investigation and prosecution of terrorist offences and serious crime as provided for in Article 4 (2) (a), (b) and (c).

Article 1a Application of the directive to intra-EU flights
1. If a Member State wishes to apply this Directive to intra-EU flights, it shall give notice in writing to the Commission to that end. The Commission shall publish such a notice in the Official Journal of the European Union. A Member State may give or revoke such notice at any time after the entry into force of this Directive.
2. Where such a notice is given, all the provisions of this Directive shall apply in relation to intra-EU flights as if they were extra-EU flights and to PNR data from intra-EU flights as if it were PNR data from extra-EU flights.
3. A Member State may decide to apply this Directive only to selected intra-EU flights. In making such a decision the Member State shall select the flights it considers necessary in order to further the purposes of this Directive. The Member State may decide to change the selected intra-EU flights at any time.

Article 2 Definitions
For the purposes of this Directive the following definitions shall apply:
(a) `air carrier’ means an air transport undertaking with a valid operating licence or equivalent permitting it to carry out carriage by air of passengers;
(b) `extra-EU flight’ means any scheduled or non-scheduled flight by an air carrier flying from a third country planned to land on the territory of a Member State or from the territory of a Member State planned to land in a third country, including in both cases flights with any stopovers at the territory of Member States or third countries;
(c) `intra-EU flight’ means any scheduled or non-scheduled flight by an air carrier flying from the territory of a Member State planned to land on the territory of one or more of the other Member States, without any stop-overs at the territory/airports of a third country;
(d) `Passenger Name Record’ or’PNR data’ means a record of each passenger’s travel requirements which contains information necessary to enable reservations to be processed and controlled by the booking and participating air carriers for each journey booked by or on behalf of any person, whether it is contained in reservation systems, Departure Control Systems (DCS, the system used to check passengers onto flights) or equivalent systems providing the same functionalities.
(e) `passenger’ means any person, except members of the crew, carried or to be carried in an aircraft with the consent of the air carrier, which is manifested by the persons’ registration in the passengers list and which includes transfer or transit passengers;
(f) `reservation systems’ means the air carrier’s internal reservation system, in which PNR data are collected for the handling of reservations;
(g) `push method’ means the method whereby air carriers transfer PNR data into the database of the authority requesting them;
(h) `terrorist offences’ means the offences under national law referred to in Articles 1 to 4 of Council Framework Decision 2002/475/JHA;
(i) `serious crime’ means the offences under national law referred to in Article 2(2) of Council Framework Decision 2002/584/JHA if they are punishable by a custodial sentence or a detention order for a maximum period of at least three years under the national law of a Member State;
(k) ‘depersonalising through masking out of data’ means rendering certain data elements of such data invisible to a user without deleting these data elements.

CHAPTER II RESPONSIBILITES OF THE MEMBER STATES

Article 3 Passenger Information Unit
1. Each Member State shall set up or designate an authority competent for the prevention, detection, investigation or prosecution of terrorist offences and serious crime or a branch of such an authority to act as its `Passenger Information Unit’ (“PIU”) responsible for collecting PNR data from the air carriers, storing them, processing them and transmitting the PNR data or the result of the processing thereof to the competent authorities referred to in Article 5. The PIU is also responsible for the exchange of PNR data or the result of the processing thereof with PIUs of other Member States in accordance with Article 7. Its staff members may be seconded from competent public authorities. It shall be provided with adequate resources in order to fulfil its tasks.

2. Two or more Member States may establish or designate a single authority to serve as their Passenger Information Unit. Such a Passenger Information Unit shall be established in one of the participating Member States and shall be considered the national Passenger Information Unit of all such participating Member States. The participating Member States shall agree on the detailed rules for the operation of the Passenger Information Unit and shall respect the requirements laid down in this Directive.

3. Each Member State shall notify the Commission within one month of the establishment or designation of the Passenger Information Unit thereof. It may at any time modify its notification. The Commission shall publish this information, including any modifications of it, in the Official Journal of the European Union.

Article 4 Processing of PNR data
1. The PNR data transferred by the air carriers shall be collected by the Passenger Information
Unit of the relevant Member State, as provided for in Article 6. Should the PNR data transferred by air carriers include data beyond those listed in Annex I, the Passenger Information Unit shall delete such data immediately upon receipt.
2. The Passenger Information Unit shall process PNR data only for the following purposes:
(a) carrying out an assessment of the passengers prior to their scheduled arrival to or departure from the Member State in order to identify persons who require further examination by the competent authorities referred to in Article 5, in view of the fact that such persons may be involved in a terrorist offence or serious crime.
(i) In carrying out such an assessment the Passenger Information Unit may compare PNR data against databases relevant for the purpose of prevention, detection, investigation and prosecution of terrorist offences and serious crime, including databases on persons or objects sought or under alert, in accordance with Union, international and national rules applicable to such databases.
(ii) When carrying out an assessment of persons who may be involved in a terrorist offence or serious crime listed in Annex II to this Directive, the Passenger Information Unit may also process PNR data against pre-determined criteria.
Member States shall ensure that any positive match resulting from automated processing of PNR data conducted under point (a) of paragraph 2 is individually reviewed by non-automated means in order to verify whether the competent authority referred to in Article 5 needs to take action in accordance with national law;
(b) responding, on a case-by-case basis, to duly reasoned requests from competent authorities to provide PNR data and process PNR data in specific cases for the purpose of prevention, detection, investigation and prosecution of a terrorist offence or serious crime, and to provide the competent authorities with the results of such processing; and
(c) analysing PNR data for the purpose of updating or creating new criteria for carrying out assessments referred to point (a) (ii) in order to identify any persons who may be involved in a terrorist offence or serious crimes listed in Annex II.
3. The assessment of the passengers prior to their scheduled arrival or departure from the
Member State carried out against pre-determined criteria referred to in point (a)(ii) of paragraph 2 shall be carried out in a non-discriminatory manner on the basis of assessment criteria established by its Passenger Information Unit. Member States shall ensure that the assessment criteria are set by the Passenger Information Units, in cooperation with the competent authorities referred to in Article 5. The assessment criteria shall in no circumstances be based on a person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health or sexual life.
4. The Passenger Information Unit of a Member State shall transmit the PNR data or the results
of the processing of PNR data of the persons identified in accordance with point (a) of paragraph 2 for further examination to the competent authorities of the same Member State referred to in Article 5. Such transfers shall only be made on a case-by-case basis.
5. The consequences of the assessments of passengers referred to in point (a) of paragraph 2
shall not jeopardise the right of entry of persons enjoying the Union right of free movement into the territory of the Member State concerned as laid down in Directive 2004/38/EC. In addition, the consequences of such assessments, where these are carried out in relation to intra-EU flights between Member States to which the Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders12 applies, shall comply with that Code.

12 OJ L 105, 13.4.2006, p. 1.

Article 5 Competent authorities
1. Each Member State shall adopt a list of the competent authorities entitled to request or receive PNR data or the result of the processing of PNR data from the Passenger Information Units in order to examine that information further or take appropriate action for the purpose of preventing, detecting, investigating and prosecuting terrorist offences and serious crime.
2. The authorities referred to in paragraph 1 shall be competent for the prevention, detection, investigation or prosecution of terrorist offences or serious crime.
3. For the purpose of Article 7(4), each Member State shall notify the list of its competent authorities to the Commission eighteen months after entry into force of this Directive at the latest, and may at any time update this notification. The Commission shall publish this information, as well as any modifications of it, in the Official Journal of the European Union.
4. The PNR data and the result of the processing of PNR data received from the Passenger Information Unit may be further processed by the competent authorities of the Member States only for the purpose of preventing, detecting, investigating or prosecuting terrorist offences or serious crime.
5. Paragraph 4 shall be without prejudice to national law enforcement or judicial powers where other violations of criminal law, or indications thereof, are detected in the course of enforcement action further to such processing.
6. The competent authorities shall not take any decision that produces an adverse legal effect on a person or significantly affects a person only by reason of the automated processing of PNR data.

Article 6
Obligations on air carriers on transfer of data
1. Member States shall adopt the necessary measures to ensure that air carriers transfer (‘push’) the PNR data as defined in Article 2(d) and specified in Annex I, to the extent that such data are already collected by them, to the database of the Passenger Information Unit of the Member State on the territory of which the flight will land and/or from the territory of which the flight will depart. Where the flight is code-shared between one or more air carriers, the obligation to transfer the PNR data of all passengers on the flight shall be on the air carrier that operates the flight. Where an extra-EU flight has one or more stopovers at the airports of different Member States, air carriers shall transfer the PNR data of all passengers to the Passenger Information Units of all the Member States concerned. This also applies where an intra-EU flight has one or more stopovers at the airports of different Member States, but only in relation to Member States which are collecting PNR data.
1a. In case the air carriers have collected any advance passenger information (API) data listed under item (18) of Annex 1 to this directive but do not retain these data as part of the PNR data, Member States shall adopt the necessary measures to ensure that air carriers also transfer (‘push’) these data to the Passenger Information Unit of the Member State referred to in paragraph 1. In case of such transfer, all the provisions of this Directive shall apply in relation to these API data as if they were part of the PNR data.
2. Air carriers shall transfer PNR data by electronic means using the common protocols and supported data formats to be adopted in accordance with the procedure referred to in Articles 13 and 14, or, in the event of technical failure, by any other appropriate means ensuring an appropriate level of data security:
(a) once 24 to 48 hours before the scheduled time for flight departure; and
(b) once immediately after flight closure, that is once the passengers have boarded the aircraft in preparation for departure and it is no longer possible for passengers to board or leave.
3. Member States shall permit air carriers to limit the transfer referred to in point (b) of paragraph 2 to updates of the transfer referred to in point (a) of paragraph 2.
4. On a case-by-case basis and where access to PNR data is necessary to respond to a specific and actual threat related to terrorist offences or serious crime, air carriers shall, upon request from a Passenger Information Unit in accordance with the procedures provided under national law, transfer PNR data at other points in time than those mentioned in paragraph 2(a) and (b).

Article 7
Exchange of information between Member States
1. Member States shall ensure that, with regard to persons identified by a Passenger Information Unit in accordance with Article 4(2)(a), the PNR data or the result of any processing thereof is transmitted by that Passenger Information Unit to the corresponding units of other Member States where it considers such transfer to be necessary for the prevention, detection, investigation or prosecution of terrorist offences, or serious crime. The Passenger Information Units of the receiving Member States shall transmit the received information to their competent authorities in accordance with Article 4(4).
2. The Passenger Information Unit of a Member State shall have the right to request, if necessary, the Passenger Information Unit of any other Member State to provide it with PNR data that are kept in the latter’s database and have not yet been depersonalised through masking out under Article 9(2) and, if necessary, also the result of any processing thereof, if it has already been prepared pursuant to Article 4(2)(a). The duly reasoned request for such data may be based on any one or a combination of data elements, as deemed necessary by the requesting Passenger Information Unit for a specific case of prevention, detection, investigation or prosecution of terrorist offences or serious crime. Passenger Information Units shall provide the requested data as soon as practicable. In case the requested data have been depersonalised through masking out in accordance with Article 9(2) the Passenger Information Unit shall only provide the full PNR data where it is reasonably believed that it is necessary for the purpose of Article 4(2)(b) and only when authorised to do so by an authority competent under Article 9(3).
3. (…)
4. Only when necessary in cases of emergency and under the conditions laid down in paragraph 2 may the competent authorities of a Member State request directly the Passenger Information Unit of any other Member State to provide it with PNR data that are kept in the latter’s database. The requests from the competent authorities, a copy of which shall always be sent to the Passenger Information Unit of the requesting Member State, shall be reasoned. In all other cases the competent authorities shall channel their requests through the Passenger Information Unit of their own Member State.
5. Exceptionally, where access to PNR data is necessary to respond to an specific and actual threat related to terrorist offences or serious crime, the Passenger Information Unit of a Member State shall at any time have the right to request the Passenger Information Unit of another Member State to obtain PNR data in accordance with article 6(4) and provide it to the requesting Passenger Information Unit.
6. Exchange of information under this Article may take place using any existing channels for cooperation between the competent authorities of the Member States. The language used for the request and the exchange of information shall be the one applicable to the channel used. Member States shall, when making their notifications in accordance with Article 3(3), also inform the Commission with details of the contact points to which requests may be sent in cases of emergency. The Commission shall communicate to the Member States the notifications received.

Article 8 Transfer of data to third States
A Member State may transfer PNR data as well as the results of the processing of such data stored by the Passenger Information Unit in accordance with Article 9 to a third State only on a case-bycase basis and if-
(a) the conditions laid down in Article 13 of Council Framework Decision 2008/977/JHA are fulfilled;
(b) it is necessary for the purposes of this Directive as specified in Article 1(2);
(c) the third State agrees to transfer the data to another third country only where it is necessary for the purposes of this Directive as specified in Article 1(2) and only with the express authorisation of the Member State that provided the third State with the data; and
(d) similar conditions as those laid down in Article 7(2) are fulfilled.

Article 9 Period of data retention
1. Member States shall ensure that the PNR data provided by the air carriers to the Passenger
Information Unit are retained in a database at the Passenger Information Unit for a period of five years after their transmission to the Passenger Information Unit of the Member State on whose territory the flight is landing or departing.
2. Upon expiry of a period of two years after the transfer of the PNR data as referred to in
paragraph 1, the PNR data shall be depersonalised through masking out of the following data elements which could serve to directly identify the passenger to whom the PNR data relate:
1. Name (s), including the names of other passengers on PNR travelling together;
2. Address and contact information;
3. All forms of payment information, including billing address, to the extent that it contains any information which could serve to directly identify the passenger to whom PNR relate or any other persons;
4. Frequent flyer information;
5. General remarks to the extent that it contains any information which could serve to directly identify the passenger to whom the PNR relate; and
6. Any collected advance passenger information.
3. Upon expiry of the two-year period referred to in paragraph 2, disclosure of the full PNR data shall be permitted only where it is reasonably believed that it is necessary for the purpose of Article 4(2)(b) and only when approved by a judicial authority or by another national authority competent under national law to verify whether the conditions for disclosure are fulfilled.

4. Member States shall ensure that the PNR data are deleted upon expiry of the period specified in paragraph 1. This obligation shall be without prejudice to cases where specific PNR data have been transferred to a competent authority and are used in the context of specific case for the purpose of prevention, detection, investigation or prosecution, in which case the retention of such data by the competent authority shall be regulated by the national law of the Member State.

5. The result of the processing referred to in Article 4(2)(a) shall be kept by the Passenger
Information Unit only as long as necessary to inform the competent authorities of a positive match. Where the result of an automated processing has, further to individual review by non-automated means as referred to in Article 4(2)(a) last subparagraph, proven to be negative, it may, however, be stored so as to avoid future `false’ positive matches for as long as the underlying data have not yet been deleted in accordance with paragraph 1.

Article 10 Penalties against air carriers
Member States shall ensure, in conformity with their national law, that dissuasive, effective and proportionate penalties, including financial penalties, are provided for against air carriers which, do not transmit the data as provided for in Article 6, or do not do so in the required format or otherwise infringe the national provisions adopted pursuant to this Directive.

Article 11 Protection of personal data
1. Each Member State shall provide that, in respect of all processing of personal data pursuant to this Directive, every passenger shall have the same right to access, the right to rectification, erasure and blocking, the right to compensation and the right to judicial redress as those adopted under the national law implementing Articles 17, 18, 19 and 20 of the Council Framework Decision 2008/977/JHA. The provisions of Articles 17, 18, 19 and 20 of the Council Framework Decision 2008/977/JHA shall therefore be applicable.
2. Each Member State shall provide that the provisions adopted under the national law to
implement Articles 21 and 22 of the Council Framework Decision 2008/977/JHA regarding confidentiality of processing and data security shall also apply to all processing of personal data pursuant to this Directive.
3. Any processing of PNR data revealing a person’s racial or ethnic origin, political opinions, religious or philosophical belief, trade union membership, health or sexual life shall be prohibited. In the event that PNR data revealing such information are received by Passenger Information Unit they shall be deleted without delay.
4. All processing, including receipt of PNR data from air carriers and all transfers of PNR data by Passenger Information Units and all requests by competent authorities or Passenger Information Units of other Member States and third countries, even if refused, shall be logged or documented by the Passenger Information Unit concerned and the competent authorities for the purposes of verification of the lawfulness of the data processing, self-monitoring and ensuring proper data integrity and security of data processing, in particular by the national data protection supervisory authorities. These logs shall be kept for a period of five years unless the underlying data have not yet been deleted in accordance with Article 9(4) at the expiry of those five years, in which case the logs shall be kept until the underlying data are deleted.
5. Member States shall ensure that air carriers, their agents or other ticket sellers for the carriage of passengers on air service inform passengers of flights at the time of booking a flight and at the time of purchase of a ticket in a clear and precise manner about the transmission data to the Passenger Information Unit, the purposes of their processing, the period of data retention, their possible use to prevent, detect, investigate or prosecute terrorist offences and serious crime, the possibility of exchanging and sharing such data and their data protection rights, in particular the right to complain to the competent national data protection supervisory authority. The same information shall be made available by the Member States to the public.
6. Without prejudice to Article 10, Member States shall in particular lay down effective, proportionate and dissuasive penalties to be imposed in case of infringements of the provisions adopted pursuant to this Directive.

Article 12 National supervisory authority
Each Member State shall provide that the national supervisory authority or authorities established to implement Article 25 of Framework Decision 2008/977/JHA shall also be responsible for advising on and monitoring the application within its territory of the provisions adopted by the Member States pursuant to the present Directive. The further provisions of Article 25 Framework Decision 2008/977/JHA shall be applicable.

CHAPTER IV IMPLEMENTING MEASURES

Article 13 Common protocols and supported data formats
1. All transfers of PNR data by air carriers to the Passenger Information Units for the purposes
of this Directive shall be made by electronic means or, in the event of technical failure, by any other appropriate means, for a period of one year following the adoption of the common protocols and supported data formats in accordance with Article 14.
2. Once the period of one year from the date of adoption, for the first time, of the common
protocols and supported data formats by the Commission in accordance with paragraph 3, has elapsed, all transfers of PNR data by air carriers to the Passenger Information Units for the purposes of this Directive shall be made electronically using secure methods in the form of those accepted common protocols which shall be common to all transfers to ensure the security of the data during transfer, and in a supported data format to ensure their readability by all parties involved. All air carriers shall be required to select and identify to the Passenger Information Unit the common protocol and data format that they intend to use for their transfers.
3. The list of accepted common protocols and supported data formats shall be drawn up taking due account of ICAO regulations and, if need be, adjusted, by the Commission by means of implementing acts in accordance with the procedure referred to in Article 14(2).
4. As long as the accepted common protocols and supported data formats referred to in paragraphs 2 and 3 are not available, paragraph 1 shall remain applicable.
5. Each Member State shall ensure that the necessary technical measures are adopted to be able to use the common protocols and data formats within one year from the date referred to in paragraph 2.

Article 14 Committee procedure
1. The Commission shall be assisted by a committee. That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers. The Commission shall not adopt the draft implementing act when no opinion is delivered by the Committee and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

CHAPTER V FINAL PROVISIONS

Article 15 Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive at the latest 36 months after the entry into force of this Directive. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 17 Review
1. The Council shall, at the appropriate level, discuss regularly the practical experiences and relevant issues within the scope and subject matter of the Directive.
2. On the basis of these discussions as well as other information provided by the Member States, including the statistical information referred to in Article 18 (2), the Commission shall undertake a review of the operation of this Directive and:
(a) within two years after the date mentioned in Article 15(1) submit a report to the European Parliament and the Council on the feasibility and necessity of including all or selected intra-EU flights in the scope of this Directive on a mandatory basis, taking into account the experience gained by Member States, especially those Member States that in accordance with Article 1a collect PNR with regard to intra-EU flights,
(b) within four years after the date mentioned in Article 15(1) submit a report to the European Parliament and the Council on all other elements of this Directive and on the feasibility and necessity of including transportation providers other than air carriers in the scope of this Directive, taking into account the experience gained by Member States, especially those Member States that collect PNR from other transportation providers.
3. If appropriate, in light of the review referred to in paragraph 2, the Commission shall make a legislative proposal to the European Parliament and the Council with a view to amending this Directive.

Article 18 Statistical data

1. Member States shall provide on a yearly basis the Commission with a set of statistical information on PNR data provided to the Passenger Information Units. These statistics shall not contain any personal data.
2. The statistics shall as a minimum cover:
1. total number of passengers whose PNR data were collected and exchanged;
2. number of passengers identified for further scrutiny;
3. number of subsequent law enforcement actions that were taken involving the use of PNR data;
3. On a yearly basis, the Commission shall provide the Council with cumulative statistics referred to in Article 18(1).

Article 19 Relationship to other instruments
1. Member States may continue to apply bilateral or multilateral agreements or arrangements
between themselves on exchange of information between competent authorities, in force when this Directive is adopted, in so far as such agreements or arrangements are compatible with this Directive.
2. This Directive is without prejudice to any obligations and commitments of Member States or
of the Union by virtue of bilateral and/or multilateral agreements with third countries.

Article 20 Entry into force
This Directive shall enter into force the twentieth day following that of its publication in the Official Journal of the European Union.
This Directive is addressed to the Member States in accordance with the Treaties.
Done at Brussels,
For the European Parliament For the Council
The President The President

ANNEX I Passenger Name Record data as far as collected by air carriers
(1) PNR record locator
(2) Date of reservation/issue of ticket
(3) Date(s) of intended travel
(4) Name(s)
(5) Address and contact information (telephone number, e-mail address)
(6) All forms of payment information, including billing address
(7) Complete travel itinerary for specific PNR
(8) Frequent flyer information
(9) Travel agency/travel agent
(10) Travel status of passenger, including confirmations, check-in status, no show or go show information
(11) Split/divided PNR information
(12) General remarks (including all available information on unaccompanied minors under 18 years, such as name and gender of the minor, age, language(s) spoken, name and contact details of guardian on departure and relationship to the minor, name and contact details of guardian on arrival and relationship to the minor, departure and arrival agent)
(13) Ticketing field information, including ticket number, date of ticket issuance and one-way tickets, Automated Ticket Fare Quote fields
(14) Seat number and other seat information
(15) Code share information
(16) All baggage information
(17) Number and other names of travellers on PNR
(18) Any Advance Passenger Information (API) data collected (inter alia document type, document number, nationality, country of issuance, date of document expiration, family name, given name, gender, date of birth, airline, flight number, departure date, arrival date, departure port, arrival port, departure time, arrival time)
(19) All historical changes to the PNR listed in numbers 1 to 18.

ANNEX II
1. participation in a criminal organisation,
2. trafficking in human beings,
3. sexual exploitation of children and child pornography,
4. illicit trafficking in narcotic drugs and psychotropic substances,
5. illicit trafficking in weapons, munitions and explosives,
6. fraud,
7. laundering of the proceeds of crime,
8. computer-related crime,
9. environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
10. facilitation of unauthorised entry and residence,
11. illicit trade in human organs and tissue,
12. kidnapping, illegal restraint and hostage-taking,
13. organised and armed robbery,
14. illicit trafficking in cultural goods, including antiques and works of art,
15. forgery of administrative documents and trafficking therein,
16. illicit trafficking in hormonal substances and other growth promoters,
17. illicit trafficking in nuclear or radioactive materials,
18. unlawful seizure of aircraft/ships,
19. sabotage, and
20. trafficking in stolen vehicles.

From bad to worse? On the Commission and the Council’s rule of law initiatives

ORIGINAL PUBLISHED ON EU LAW ANALYSIS
Monday, 19 January 2015

by Dimitry Kochenov* and Laurent Pech**
*Professor of EU Constitutional Law at the University of Groningen and Visiting Professor of Private Law at the Universita degli studi di Torino
**Jean Monnet Professor of EU Public Law, Head of the Law and Politics Department at Middlesex University London

The rule of law is one of the fundamental values on which the EU is founded according to Article 2 TEU. Faced with a rising number of ‘rule of law crises’ in a number of EU countries, the Commission adopted a new ‘pre-Article 7’ procedure last March in order to address any instance where there is a evidence of a systemic threat to the rule of law. Having criticised the Commission’s initiative primarily on the (unconvincing) ground that it would breach the principle of conferral which governs the allocation of powers between the EU and its Member States, the Council proposed its own solution: a rule of law dialogue between national governments and to be held once a year in Brussels.

Both initiatives, and in particular, the Council’s, appear grossly inadequate to tackle the problem of ‘rule of law backsliding post EU accession’ to quote Frans Timmermans, the First Vice-President of the Commission in charge inter alia of the Rule of Law.

Let us begin with the Commission’s proposal. The rationale underlying its new mechanism is that the current EU legal framework is ill designed when it comes to addressing internal, systemic threats to this principle and more generally, to EU values. The former President of the European Commission himself called in 2013 for a ‘better developed set of instruments’ that would fill the space that exists at present between the Commission’s infringement powers laid down in Articles 258–260 TFEU, and the so-called ‘nuclear option’ (suspension of a Member State’s EU membership) laid down in Article 7 TEU. Both procedures suffer indeed from a number of procedural and substantive shortcomings, with the consequence that Article 7 TEU has never been triggered whereas the Commission’s infringement powers have proved ineffective to remedy systemic violations of EU values.

Numerous proposals were made like prior to the publication of the Commission’s Communication last March. These proposals would appear however to have been were found too ‘radical’ for the Commission which decided instead to put forward an eminently ‘light touch’ mechanism (previous analysis by Steve Peers is available here). This new rule of law mechanism builds on and complements an already existing – albeit never used – procedure, the ‘nuclear option’ referred above and on the basis of which the Council may theoretically suspend certain EU rights of the ‘guilty’ Member State such as voting rights.

In a nutshell, the Commission’s new mechanism takes the form of an early-warning tool to enable the Commission to enter into a structured dialogue with the Member State concerned to prevent the escalation of systemic threats to the rule of law preceding the eventual triggering of Article 7 TEU. This ‘pre-Article 7’ mechanism does not exclude a parallel recourse to the infringement procedure.

In practice, the Commission’s new rule of law mechanism rests on three main stages:

(1) The Commission will first have to assess whether there are clear, preliminary indications of a systemic threat to the rule of law in a particular Member State and send a ‘rule of law opinion’ to the government of this Member State should it be of the opinion that there are;

(2) Commission’s recommendation: In a situation where no appropriate actions are taken, a ‘rule of law recommendation’ may be addressed to the authorities of this country, with the option of including specific indications on ways and measures to resolve the situation within a prescribed deadline;

(3) Finally, the Commission is supposed to monitor how the relevant Member State is implementing the recommendation mentioned above. Should there be no satisfactory implementation, the Commission would then have the possibility to trigger the application of Article 7 TEU.

The Commission’s new pre-Article 7 procedure is anything but revolutionary. In essence it merely requires any ‘suspected’ Member State to engage in a dialogue with no new automatic or direct legal consequences should the Member State fail to agree with any of the recommendations adopted by the Commission. Undoubtedly, Article 7(1) TEU already and necessarily implicitly empowers the Commission to investigate any potential risk of a serious breach of the EU’s values by giving it the competence to submit a reasoned proposal to the Council should the Commission be of the view that Article 7 TEU ought to be triggered on this basis. The criticism expressed by the Council’s Legal Service, which has criticised the Commission for overstepping its powers, would therefore appear particularly misplaced. The Commission’s framework is procedurally sound, no Treaty change is required and for the first time, a wide range of expert bodies is to be consulted: so far so good one may be tempted to say.

This bright picture however fades a great deal as soon as one focuses on the likely effectiveness of this new procedure, which is based on the presumption that a dialogue between the Commission and the Member State is bound to produce positive results. The validity of this presumption is highly questionable. Indeed, once we move towards really problematic cases, i.e. the countries where the ruling élite has made a conscious choice not to comply with EU values, engaging in a rule of law dialogue is unlikely to be fruitful. Worse still: the confidential nature of the whole discussion to be held between the Commission and the Member State under investigation will prevent a successful ‘name-and-shame’ environment from crystallising. The non-legally binding nature of the ‘rule of law recommendation’ to be addressed to the authorities of the country under scrutiny, and the non-automatic recourse to Article 7 TEU should the recalcitrant Member State fail to comply, further increase the likelihood of ineffective outcomes.

The Council’s negative response to the Commission’s proposal leaves one rather pessimistic about the chance of ever seeing the Commission activating its new rule of law framework. Indeed, rather then supporting the Commission’s rule of law framework, the Council decided instead to establish an annual rule of law dialogue to be based ‘on the principles of objectivity, non discrimination and equal treatment of all Member States’ and to be ‘conducted on a non partisan and evidence-based approach’. The Council’s response is as disappointing as it is unsurprising considering the reported unease of several national governments at the idea of letting any independent EU body looking into rule of law matters beyond the areas governed by EU law. The British government, for instance, has made clear its opposition to the Commission’s framework on three main grounds: It would be superfluous to the extent that the European Council and the Council of Europe would already monitor rule of law compliance within EU Member States; it would undermine the role of the Member States within the Council of the EU and finally, that the Commission and the Council would have already been successful through informal dialogue and lobbying in addressing in recent concerns on the rule of law in Member States.

Suffice it to refer to recent events in Hungary to understand that this last point is rather ludicrous. The point about the possible duplication of existing mechanisms is similarly unconvincing. To put it concisely, if multiple bodies gather data and monitor some specific aspects of EU Member States practice in relation to the rule of law, democracy and human rights, no European body currently subjects EU countries to a specific, country-based and permanent monitoring and assessment of their adherence to the rule of law broadly understood (for an overview of existing monitoring mechanisms within the Council of Europe, the EU and the UN, see this very useful report from the Bingham Centre for the Rule of Law). For instance, the Council of Europe’s Venice Commission, whose work is unanimously praised, is primarily a consultative body. In the end, the criticism directed at the Commission’s proposal essentially stems from the reluctance of some national governments, especially those whose rule of law records are highly questionable, to accept any potential effective form of supranational monitoring which could result in the adoption of legally binding recommendations and/or sanctions.

Viewed in this light, it is hardly surprising that while the Commission’s proposal suffers from many a flaw, the Council’s response goes nowhere near enough what is required to address current challenges. The latest buzzwords are used to hide an unwillingness to meaningfully act. For instance, the Council calls for an evidence-based approach but what will this mean in practice and who will in charge of collecting this evidence and analysing it? Similarly, the dialogue is supposed to take place in the Council ‘following an inclusive approach’, the substance of which is nowhere explained. More fundamentally, the Council is seeking to use a soft instrument, which has regularly been criticised precisely for its ineffectiveness when used by the EU to promote its values abroad. To put it concisely, the EU has set up close to forty ‘human rights dialogues’ with third countries but evidence of substantial and concrete achievements is thin on the ground. One would have hoped a different, stricter approach for any Member State whose authorities have made a conscious political choice of undermining EU values.

To conclude, the Commission and the Council’s initiatives may leave one deeply disappointed considering the serious nature of the internal challenges faced on the rule of law front. When comparing the two initiatives, one may however argue that the Commission’s is much less half-hearted and, thus, at least less counter-productive, than the Council’s, which does not simply represent the triumph of empty rhetoric over genuine action but also unfortunately undermines the future legitimacy of any Commission attempt to trigger its new pre-Article 7 procedure. For a more detailed analysis, we would refer interested readers to our forthcoming Schuman Foundation policy paper, which is due to be published this spring in both English and French.

A Tale of Two States: Rule of Law in the Age of Terrorism

ORIGINAL PUBLISHED ON VERFASSUNGSblog

by Giovanna DE MINICO

As a reaction to the recent terrorist attacks in France, several EU member states as well as the EU itself have announced significant anti-terrorism measures.

Even well before the French facts, the UK proposed to isolate suspected terrorists, withdrawing and confiscating their passports to prevent them from entering and leaving the country. This is in line with the aggressive policies of both theRegulation of Investigatory Powers Act 2000 and of the Anti-terrorism, Crime and Security Act 2001.

France, while rhethorically distancing itself from the American Patriot Act, seems to do substantially the same, as President François Hollande announced that he wants to close the online websites suspected of fomenting terrorism. Not even the United States has adopted a measure of such gravity, suffocating the freedom of speech and thought. The US may be responsible for the distant and pervasive control of our private life but it still insists on an open market place of ideas as an undefeatable antidote against the violence spreading germs.

Germany has announced, together with the suspension of the ID card, based on the English model, other measures aimed to reinforce the dialogue between police and intelligence, upholding a demand for cooperation raised by multiple European voices.

The European Union seems to have set definitely aside the very strong querellebetween privacy and security with regard to the subject-matter of PNR, i.e. the personal number record of passengers. This is an ID of single passengers which put together miscellaneous data of various nature, from the personal data to the information about how they paid, what they have eaten, which newspaper they have asked for on board or incidentally their sanitary requirements. Clearly, these data, if properly cross-examined, could be very useful to find out their political or religious thoughts.

The duty to collect this new mountain of data would be imposed on the air carriers for a number of years (yet to be defined precisely). What is even more incompatible with the rule of law is the fact that such measure applies to passengers regardless of their inclusion in a suspects’ list. This issue is not new to the European Union. Actually, it dates back to a Directive proposal of 2011, which was rejected by theLibe Commission in 2013 for infringing the right to privacy and has been brought up again by the European Council in August 2014. These days, it seems to be back in the agenda of the European Parliament after the meeting of the interior Ministers recently held in Place Beavau. The debated issue now is focused only on the number of years of the data keeping, because the resistance of privacy supporters, which fired up the debate at the Libe Commission, seems now to have been set aside in the name of security.

Let’s ask ourselves if this mass recording is necessarly for prevention reasons. My opinion is that the demand for public security is not sufficient to justify such action; in fact, keeping this massive amount of information, applying indiscriminately to all the passengers, makes the investigations slow, ill-timed and, often, inutiliter data.Prevention measures, due to their anticipatory character, must be very timely and focused on well selected targets, otherwise they risk to be only effective when an event has already occurred.

The well known criticism related to privacy violations, disproportionate control, lack of protection against discrimination, departure from the constitutional presumption of innocence, remain standing. Furthermore, the objection of the ineffectiveness of the remedy to fullfill the security aims, already raised towards the NSA’s acquisition of the online metadata, could apply also to the PNR.

State of Terror vs. State of Law

After having highlighted the ongoing legal framework, let’s focus on the “State of Terror” on the one side, and the “State of Law” on the other: what they want and how they intend to achieve it.

a) The State of Terror wants to spread chilling fear and make people feel alone and without protection by the State of Law. In this situation of weakness, citizens are ready to surrender their freedom in return to the promise of security, which however no Government could ever completely ensure. To sum up, terrorism has proven to have well understood the lesson of divide et impera.

b) The State of Law should respond by educating its community to the values of legality, tolerance and solidarity. Its duty, in times of fear, is an ethical rather than a police one; it has to make the people leave their isolation and facilitate their social and political inclusion. This action requires concrete actions by political decision-makers.

To the fear, which is the first result of terrorism, the State has to respond with the wisdom of a legislator, which should not act under the pressure of understandable emotional feelings. Any measures have to comply with the principles ofproportionality and precaution, otherwise not only they risk to be erased by the European or national Supreme Courts but they will prove to be meaningless. The recent episodes are evidence that all-encompassing controls such as the online data collection of the real and virtual movements of terrorists have not been able to prevent their criminal actions: controlling everyone is equal to controlling no one.

In a long-time perspective, the European Parliament should make use of its competence from article 83 TFUE to give, along with the Council, a common definition of the crime of terrorism and enact serious, quick and effective measures. This is permitted by article 83; and it is very much to be regretted that this competence conferred on the European Parliament has not been exercised so far.

Last but not least, the State of Law should take cultural action aiming to include heterogeneous people while respecting their diversities. By contrast, the melting-pot method followed so far, that tried to uniform the different ideologies, failed because of the lack of a common values.

The State of Law has not to use the usual categories of the prevalence of Right over Wrong, West over Islam; it should rather develop the cohabitation of the opposites by sharing what we Europeans are still denying to the foreign people: social rights. A State of Law, which shows itself severe in the rules but generous in the co-division of welfare, will be able to compete with the State of Terror. The latter recruits its followers among the desperates, those who feel to be abandoned by the hosting State.

In the light of the above foreigners could choose between a proposal of violence and isolation, made by the State of Terror, and one of cohabitation and solidarity, made by a new European State of Law.

Dieser Text steht unter der Lizenz CC BY NC ND

(http://creativecommons.org/licenses/by-nc-nd/4.0/legalcode)

Zitiervorschlag: De Minico, Giovanna: A Tale of Two States: Rule of Law in the Age of Terrorism, VerfBlog, 2015/1/24, http://www.verfassungsblog.de/tale-two-states-rule-law-age-terrorism/

The US Senate reveals the truth on renditions and torture, now it’s Europe’s turn.

NB Translated by Yasha Maccanico from an original italian version published on Europeanrights internet site. 

by Armando Spataro[1]

On 9 December 2014, as had been announced the day before by Josh Earnest, the White House spokesman, the US Senate released a report of around 500 pages that officially acknowledged all sorts of torture (including water-boarding) and the practice of extraordinary renditions, enacted by the CIA for around a decade within the framework of an unacceptable strategy to fight international terrorism. Moreover, the report consists of a summarised review of an even wider study which is around 6,700 pages long, the rest of which will remain ‘classified’, as is said in jargon, and hence secret. The work by the Senate’s Intelligence Committee monitoring the secret services, on which the report is based, lasted for around five years and included analysis of around 6 million documents.

Thus, practically the whole world had official confirmation of what was already known to an extent and which, according to several commentators, constituted a practice enacted since the years that immediately preceded the 11 September [attacks], when the CIA was headed by George Tenet (from 1997 to 2004), and up until 2009 (hence, also at the time when Tenet’s role was assumed first by Porter Gross and then by Michael Hayden). In any case, these were methods developed with certainty – according to the report – after 11 September. Yet, the truly innovative element did not consist in this practice being revealed, but in its clear and unequivocal condemnation by the United States Senate.

The president of the Senate’s Intelligence Committee, the California Democrat Dianne Feinstein, who had already reported the violation of the computers of the Committee she presided over by the CIA[2] in March 2014, insisted for the immediate publication of this dossier. The senator, who overcame internal resistance even within her party by those who opposed the report’s publication, declared: “We have to divulge it because whoever reads it will act in order for it never to happen again”. The position taken by President Obama was no different, as he stated: “We were not worthy of our values… Torture has not even contributed to making us safer against terrorism. I will continue to use my presidential authority to guarantee that we will never use those methods again”[3]. Brutal and inefficient methods, whose only consequences were summed up by Harry Raid, leader of the outgoing Democratic majority in the Senate, in just a few words:“All of this has just muddied us”.

But the top echelons of the CIA immediately stated that they had done what was asked of them, assuring that everything was lawful.

Hence, it is worth reconstructing the route along which, at a certain point, governments, including European ones, political leaders and many jurists came to claim that acts of torture and the kidnapping of suspected terrorists had a juridical legitimation and, therefore, could be practised.

It all arises from an abstruse juridical theorisation, that of the war on terror, whereby war must be met with war, also because it is a way of producing democracy, so much so that “after the bombing of Falluja, the inhabitants of the destroyed city were happier and voted in great numbers”[4]. It was a theory that was drawn up in the wake of 11 September and had quickly become so popular as to be mentioned using an acronym: “W.o.T.”

In essence, acts of so-called international terrorism supposedly constitute acts of war that may be countered with similar techniques among which kidnappings and torture are included. Of course, it is true that acts of terrorism may also be carried out in times and zones of war, but it is likewise evident that this does not justify that kind of response in any way. In fact, everyone, and not just jurists, knows that in war situations the law for armed conflict situations is applicable as it is laid out in the Geneva Convention, its additional protocols and its further, more general purposes that are found in humanitarian law.

However, within the frame of the WoT principles become flexible, “grey areas” in which rights exist in a limited form become admissible, where any rule subsides or rules are often violated, starting from, for example, the very creation of the category of enemy combatants, that is, of illegal enemy combatants which, according to the view of those who created it, enables terrorist suspects who are “captured” in any part of the world to be denied their fundamental rights.

We owe the creation of this monstruous juridical category to John Woo from the US Department of Justice’s Legal Advice Office, the author of a 42-page memorandum in which Al Qaeda and the entire Taleban regime were included among the illegal enemy combatants, to whom the Geneva Conventions would not be applied.[5]

Moreover, John Yoo later complained (in 2008) in some press articles that the unveiling of his role as counsellor-strategist exposed him to the risk of reprisals, whereas he now claims, with renewed pride and following the publication of the Feinstein report, the authorship of that memorandum. Yoo recently published the book “Point Attack”, in which he redevelops that “emergency law” which was decisive – in his view – after 11 September[6].

Fears that were somewhat similar to those expressed by Woo prior to his more recent coming out, had been voiced by Matthew Waxman, professor at the Columbia Law School and a high ranking official in the staff of the US State Department between 2005 and 2007, who complained about[7] the worldwide release of the photographs that documented the inhumane treatment inflicted upon prisoners in Abu Ghraib and Guantánamo: «What image are we giving of the fight against terrorism?», he commented.

In reality, using the words of Antonio Cassese, this system constitutes a “juridical limbo”, which is enriched by ad hoc clauses and provisions directed at further legitimating it. Continue reading “The US Senate reveals the truth on renditions and torture, now it’s Europe’s turn.”

D. KORFF : The rule of law on the Internet and in the wider digital world

NB This is the executive summary of an issue paper prepared by Professor Douwe Korff, Visiting Fellow, Yale University (Information Society Project), and Oxford Martin Associate, Oxford Martin School, University of Oxford, UK for the Council of Europe Commissioner for fundamental rights. (Douwe Korff is also member of FREE Group) 

FULL DOCUMENT ACCESSIBLE HERE

Executive summary

This issue paper addresses a pressing question: how can we ensure that the rule of law is established and maintained on the Internet and in the wider digital world? Section 1 describes the range of online activities and the threats to this environment; section 2 discusses the emerging “Internet governance” principles, and notes the special control exercised over the digital world by the USA (and the UK, in respect of Europe), which could lead to fragmentation of the Internet in response. Section 3 sketches the international standards of the rule of law, and some problems in the application of law in this new environment. Section 4 looks in some more detail at the main issues emerging from the earlier sections – freedom of expression, privatised law enforcement, data protection, cybercrime and national security – and discusses the delicate balances that need to be struck. The Council of Europe Commissioner for Human Rights has formulated a number of recommendations on the basis of the issues raised by this issue paper; these are set out after this executive summary.

A new environment for human activities

We live in a global digital environment that has created new means for local, regional and global activities, including new types of political activism, cultural exchanges and the exercise of human rights. These activities are not virtual in the sense of “not truly real”. On the contrary, they are an essential part of real citizens’ lives. Restrictions on access to the Internet and digital media, and attempts to monitor our online activities or e-communications, interfere with our fundamental rights to freedom of expression and information, freedom of association, privacy and private life (and possibly other rights such as freedom of religion and belief, or the right to a fair trial).

The new global digital environment of course also creates a new space for unlawful behaviour: for the dissemination of hate speech or child pornography, incitement to violence, breaches of copyright (“piracy”), fraud, identity theft, money laundering and attacks on the e-communications infrastructure itself through malware (such as Trojans and worms) or “denial of service” attacks. Cybercrime and cybersecurity have become major concerns. These threats are increasingly transnational, and there is a broad international consensus on the need to deal with cybercrime, cybersecurity and terrorism, but there is much less agreement on specifics – or even what constitutes a threat.

Four issues stand out. First, state actions aiming to counter cybercrime, threats to cybersecurity and threats to national security are increasingly intertwined; the boundaries between such activities are blurred, and the institutions and agencies dealing with them work more closely together. Second, states are now co-ordinating their actions in all these regards. Third, the work of national security and intelligence agencies increasingly depends on monitoring the activities of individuals and groups in the digital environment. Fourth, instead of ex post facto law enforcement, the emphasis is now on intelligence and prevention, with law-enforcement agencies using techniques – and technologies – previously reserved for secret services.

The nature of the digital environment Dangerous data

In an age of “Big Data” (when data on our actions are shared and/or exploited in aggregate form) and the “Internet of Things” (when more and more physical objects – things – are communicating over the Internet), it is becoming difficult to ensure true anonymisation: the more data are available, the easier it becomes to identify a person. Moreover, the mining of Big Data, in ever more sophisticated ways, leads to the creation of profiles. Although these profiles are used to spot rare phenomena (e.g. to find a terrorist in a large set of data, such as airlines’ passenger name records), they are unreliable and can unwittingly lead to discrimination on grounds of race, gender, religion or nationality. These profiles are constituted in such complex ways that the decisions based on them can be effectively unchallengeable: even those implementing the decisions do not fully comprehend the underlying reasoning. The digital environment can by its very nature erode privacy and other fundamental rights, and undermine accountable decision making. There is enormous potential for undermining the rule of law – by weakening or destroying privacy rights, restricting freedom of communication or freedom of association – and for arbitrary interference.

Global and private, but not in the sky

Because of the open nature of the Internet (which is its greatest strength), any end point on the network can communicate with virtually any other end point, following whatever route is calculated as being most efficient, the data flowing through all sorts of switches, routers and cables: the Internet’s physical infrastructure. The electronic communications system is transnational, indeed global, by its very nature; and its infrastructure is physical and located in real places, in spite of talk of a Cloud. At the moment, many of these physical components are in the USA and many of them are managed and controlled by private entities, not by governmental ones.

The main infrastructure for the Internet consists of high-capacity fibre-optic cables running under the world’s oceans and seas, and associated land-based cables and routers. The most important cables for Europe are those that run from continental Europe to the UK, and from there under the Atlantic to the USA. Given the dominance of the Internet and of the Cloud by US companies, these cables carry a large proportion of all Internet traffic and Internet-based communication data, including almost all data to and from Europe.

Who is in control? Internet governance

Important Internet governance principles have been put forward, by the Council of Europe and others, that stress the need to apply public international law and international human rights law equally online and offline, and to respect the rule of law and democracy on the Internet. These principles recognise and promote the multiple stakeholders in Internet governance and urge all public and private actors to uphold human rights in all their operations and activities, including the design of new technologies, services and applications. And they call on states to respect the sovereignty of other nations, and to refrain from actions that would harm persons or entities outside their territorial jurisdiction.

However, these principles still remain largely declaratory and aspirational: there is still a deficiency in actual Internet governance arrangements that can be relied on to ensure the application of these principles in practice. Also, Internet governance must take account of the fact that – partly because of its corporate dominance, and partly because of historical arrangements – the USA has more control over the Internet than any other state (or even all other states combined). Together with its close partner, the UK, it has access to most of the Internet infrastructure.

The former US National Security Agency contractor Edward Snowden has revealed that the USA and the UK are using this control and access to conduct mass surveillance of the Internet and of global electronic communications systems and social networks. There are fears that states may respond to the Snowden revelations by fragmentation of the Internet, with countries or regions insisting that their data are routed solely through local routers and cables, and stored in local clouds. This risks destroying the Internet as we know it, by creating national barriers to a global network. Unless the USA improves compliance with international human rights standards in its activities that affect the Internet and global communication systems, the movement towards such a truncated Internet will be difficult to stop.

Private-sector control

Much of the infrastructure of the Internet and the wider digital environment is in the hands of private entities, many of them US corporations. This is problematic because companies are not directly bound by international human rights law – that directly applies only to states and governments – and it is more difficult to obtain redress against such companies.

In addition, private entities are subject to the national laws of the countries where they are established or active – and those laws do not always conform to international law or international human rights standards: they may impose restrictions on activities on the Internet (typically, on freedom of expression) that violate international human rights law; or they may impose or allow interference, such as surveillance of Internet activity or e-communications, that is contrary to international human rights law; and such actions may be applied extraterritorially, in violation of the sovereignty of other states.

The application of national law to the activities of private entities controlling (significant parts of) the digital world is extremely complex and delicate. Of course states have a right, and indeed a duty, to counter criminal activity that uses the Internet or e-communication systems. In this, they naturally enlist the help of relevant private actors. Responsible companies will also want to avoid their products and services being used for criminal purposes. Nonetheless, in such circumstances, states should in their actions both fully comply with their international human rights commitments and fully respect the sovereignty of other states. In particular, states should not circumvent constitutional or international law obligations by encouraging restrictions on human rights through “voluntary” actions by intermediaries; and companies, too, should respect the human rights of individuals.

The rule of law in the digital environment

The rule of law

The rule of law is a principle of governance by which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated and consistent with international human rights norms and standards. It entails adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in applying the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

The basic “rule of law” tests developed by the European Court of Human Rights

The European Court of Human Rights has developed elaborate “rule of law” tests in its case law, and these have also been adopted by other international human rights bodies. To pass these tests, all restrictions on fundamental rights must be based on clear, precise, accessible and foreseeable legal rules, and must serve clearly legitimate aims; they must be “necessary” and “proportionate” to the relevant legitimate aim (within a certain “margin of appreciation”); and there must be an “effective [preferably judicial] remedy” against alleged violations of these requirements.

“Everyone”, without discrimination

It is one of the hallmarks of international human rights law since 1945, and one of its greatest achievements, that human rights must be accorded to “everyone”, to all human beings: they are humans’ rights, not just citizens’ rights. Thus, subject to very limited exceptions, all laws, of all states, affecting or interfering with human rights must be applied to “everyone”, without discrimination “of any kind”, including discrimination on grounds of residence or nationality.

Because of the unique place of the USA and US companies in the functioning of the Internet, the constitutional and corporate legal framework in the USA is of particular importance. However, in contrast to the above-mentioned principle of international human rights law, many of the human rights guarantees in the US Constitution and in various US laws relating to the digital environment apply only to US citizens and non-US citizens residing in the USA (“US persons”). Only “US persons” benefit from the First Amendment, covering free speech and freedom of association; the Fourth Amendment, protecting US citizens from “unreasonable searches”; and most of the (limited) protections against excessive surveillance provided by the main pieces of legislation on national security and intelligence (FISA Amendment and Patriot Acts).

“Within [a contracting state’s] [territory and] jurisdiction”

The duty of states to comply with their responsibilities under international human rights law also when acting extraterritorially The main international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), oblige states to “ensure” or “secure” the human rights laid down in those treaties to “everyone subject to their jurisdiction” (or “within their jurisdiction”). This requirement is increasingly given a functional rather than a territorial meaning – as has recently been reaffirmed by the Human Rights Committee and the European Court of Human Rights. In other words, each state must ensure or secure these rights to anyone under its physical control or whose rights are affected by its (or its agencies’) actions.

Thus, states must comply with their international human rights obligations in any action they take that may affect the human rights of individuals – even when they act extraterritorially, or take actions that have extraterritorial effect. This obligation has specific consequences for data – what the digital world is made of – and especially for personal data, as is recognised by European data-protection law, which protects all individuals whose data are processed by European controllers, irrespective of their place of residence, nationality or other status. However, the USA formally rejects this application of international human rights law. In view of the predominance of the USA (and of US corporations that are subject to that country’s jurisdiction) in the digital environment, this poses a serious threat to the rule of law in that new environment.  Continue reading “D. KORFF : The rule of law on the Internet and in the wider digital world”

THE RIGHT TO BE HEARD IN IMMIGRATION AND ASYLUM CASES: THE CJEU MOVES TOWARDS A DEFINITION

Original Published HERE on EU LAW ANALYSIS on Friday, 16 January 2015

by Elspeth Guild, Kingsley Napley

An essential element of a legal challenge is the right to be heard. It is often characterised as a component of rights of the defence but it has a wider ambit requiring state authorities to provide an individual with an opportunity to state his or her case before taking a decision. By and large in EU law, the right to be heard has been bundled into national procedural rights but it began to make guest appearances in CJEU judgments from 2008 and recently has taken central stage in two judgments on the Return Directive.

The starting place, however, is in a judgment about post clearance recovery of customs import duties (C-349/07 Sopropé), where the CJEU held that when state authorities take decisions within the scope of EU law they must provide the entity with the right to be heard. This is the case even in the absence of such a procedural requirement in EU law. Two conditions must be fulfilled: the right must be the same as that to which individuals or undertakings in comparable situations under national law are entitled (the principle of equivalence) and secondly the procedural rules must not make it impossible in practice or excessively difficult to exercise the right (the principle of effectiveness). These principles laid out in the 2008 judgment are having a considerable impact on EU law on third country nationals both in the context of asylum and return decisions.

Where does the right to be heard come from?

First, the source of the right: the CJEU found in 2008 (a year before the Charter became legally binding via the Lisbon Treaty) that there was an EU principle of the right to be heard. But note, in subsequent judgments it has been reluctant to embed the right in the Charter. Although the Charter has a right to good administration (Article 41(1)) which includes the right to be heard, the CJEU has held, most recently in two judgments (Mukarubega and Boudjlida, discussed here) on the Return Directive (Directive 2008/115), that this right only applies to the institutions, bodies, offices and agencies of the EU (not to Member State bodies – a finding not entirely consistent with a previous ruling on an asylum matter see below).

So the right to be heard, for instance regarding a residence permit under the Return Directive, cannot be founded on Article 41 Charter. Further, Articles 47 and 48 Charter ensure respect for the rights of the defence and fair legal process in all judicial proceedings, but while the CJEU refers in its recent judgments to these two provisions in conjunction with Article 41, it has not expressly excluded them from applicability to Member State action (as to do so would limit them to really few situations).  Instead, the Court has chosen to determine that the right is inherent in respect for the rights of the defence which is a general principle of EU law (see Boudjlida).

There is an oddity here which the CJEU does not attempt to explain. On the one hand the right to be heard is critical for the individual or entity before the state authority reaches a decision. On the facts of the cases before the CJEU which were about the decisions of a national authority that individuals were unlawfully residing on the territory and therefore the consequence was a return decision (or expulsion order), this matters a lot. The individuals had to have an opportunity to explain why their residence was lawful or why it should be regularised on the basis of their personal circumstances in order to avoid a return decision being pronounced against them.

On the other hand, the rights of the defence apply after the state authority has made its decision and the individual seeks to appeal against it. It may be a ground of the defence that the individual was never provided an opportunity to make his or her case before the decision was reached but this is an ex post argument. It is a stretch of interpretation to push the rights of the defence backwards into an administrative obligation. Further Article 47 Charter, the fair trial provision, applies in respect of any right or freedom guaranteed by EU law. But Article 48 Charter, the rights of the defence, apply when the individual is charged (a criminal charge). There are a number of nuances here regarding the right to be heard.

In MM – an asylum case – the CJEU held that the right to good administration (Article 41 Charter) includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken. It went on to state that Article 41 Charter from its very wording is of general application. On this basis, and also after a consideration of the generally applicable principle of the right to be heard, the CJEU held that an asylum applicant must be heard by the national authorities responsible for determining the claim pursuant also to the rules of the Common European Asylum System. This seems to indicate that in the asylum context the CJEU was tempted to apply Article 41 Charter to national authorities but in the later decisions on the Return Directive it drew back from that position.

Nonetheless, in the Return Directive context (Boudjlida), the CJEU found that the right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely.

What does the right mean?  (continue reading …)

Is “synchronized swimming” the right approach for the EP (and for the Council) ?

by Emilio DE CAPITANI

Yesterday there was no political majority in the European Parliament to vote on the Juncker Commission 2015 Programme. Quite shocked Votewatch describe this “non event” as follows: As this vote has just shown, the European Commission President, Jean Claude Juncker, will have a hard time building majorities in the European Parliament: the EU legislative was unable to reach a common position with regard to the plans put forward by the Executive for 2015. In a dramatic display of power play, the political groups voted down each other’s proposals one by one. The first text put to vote was the one proposed by the largest political group, the EPP. This was giving full backing to the Commission’s proposed legislative agenda for this year. The EPP, which is also the group of Jean Claude Juncker, supported Commission’s plans to reduce the bureaucratic burdens and the introduction of mandatory impact assessments of all new legislation on SMEs. EPP also positioned itself strongly in favour of a comprehensive TTIP agreement (between the EU and the US). EPP’s document was, however, voted down by a combination of left and radical right opposition. The text proposed by the ALDE group didn’t stand a chance either. Then, the much more critical resolutions proposed by the Greens/EFA and the S&D groups seemed to gain momentum, as some of their amendments mustered a majority, particularly calls against the allegedly proposed plans of watering down the social and environmental agenda, through cancelling certain EU laws or the TTIP. However, at the final vote these documents were rejected too by the other groups, which cancelled the victories on separate amendments. The same happened with the resolutions proposed by the remaining political families. This is a clear signal that, after the EU elections in May 2014 and the spitzenkandidaten process, the European Commission has become more political and that it will have a harder life in the Parliament.”.

However it think that this EP apparent “failure” should be seen also under a different perspective.

It is more than likely that the Juncker  Commission feels to be more “political” compared to the Barroso’s previous teams but it is also true that it has overestimated its new position in the legislator’s triangle. On the European Parliament side she should had been aware  that until now the support that it has received from the “grosse coalition” (EPP, SD and ALDE) was only on very generic (when not contradictory) objectives.

I think that the main error with the 2015 Programme has been to come before the European co-legislator by claiming that there would had been less new…legislation when the Treaty of Lisbon objectives have yet to be implemented. Less EU legislation could be a music for UK or NL but sounds very inappropriate in Strasbourg where there are several MEPS who still consider to have been elected to change the EU and not to preserve the existing one.  Moreover if limits have to be established it would be more appropropriate to do it on the Commission side as 9/10 of the EU binding acts adopted every year come out  from hundreds committees driven by the Commission in perfect (and very often opaque) complicity with the representatives of the Member States.

Coming back to the Commission’s  political programme for 2015 it still mirrors the general objectives already repeated since the electoral campaign without fleshing them out on concrete proposals. It would then have been illusory to expect from a new elected Parliament a support for an annual agenda which many MEPs during the plenary debate have considered in several aspects generic if not misleading.

A further Commission’s error has been to list between the legislative measures which should be withdrawn because obsolete also measures on which the negotiations between the European Parliament and the Council are still under way. By so doing the Commission was probably trying to show that its right of legislative initiative remain in full also during the legislative negotiations. However after more than 1.400 legislative codecisions it would had been naïve to think that the co-legislator (and notably the EP) would had accepted to be taken away by the Commission the chair on which he was sitting .

Furthermore this would be an over “generous” interpretation of the Commission right to “…alter its proposal at any time during the procedures leading to the adoption of a Union act” (art. 293.2 TFEU) The Treaty does not make reference to a Commission power of withdrawal but only to a power of amendment and only “As.long as the Council as not acted…”. By modifying its proposal can already heavily influence the balance of power in the Council which will require unanimity to overcome the Commission text. This Commission power to influence the majority in the Council may be justified to counterbalance the pressure of national governments in the Council but has no ground towards the European Parliament which derives is legitimacy from the vote of the EU citizens. The Juncker Commission to become again a sort of “Deus ex machina” as it was before the European direct elections is then quite misplaced.

So, the main error of the Commission move with the 2015 Programme has been to consider itself as if it were  already a  true European Government and only because of the success of the “spitzenkandidaten” procedure and of the support of the high ranks of  the political groups.

We are still very far from this situation and it has still to be proved that mirroring the nation state constitutional balance fits also with European “sui generis” legal order which has been proudly defended by the European Court of Justice. Clearly this will require some creativity from the EU political architects but the first signs are not very promising. Take the case of the recent inter institutional  negotiations to strengthen inter-institutional annual and multiannual programming . The main objective of this exercise should be “to set common objectives and ensure an even more rapid and efficient decision-making process, while preserving the quality of legislation”. This exercise takes as basis the art. 17(1) TEU according to which European Commission shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.”  However according to a draft joint declaration (hopefully not yet adopted) the institutions should endeavour to establish a political framework by including a commitment to fast-track priority proposals.  In a European Union where “First reading agreements” have already become the rule thanks to the goodwill of the European Parliament the creation of an informal “urgency procedure” (not foreseen by the treaties) looks suspect even if feasible on the basis of “binding” interinstitutional agreements (art. 295 TFEU).

The point is that to preserve the institutional balance these agreements should be equally binding for all the parties involved which regrettably is not currently the case in the informal draft which are informally circulating.

A balanced agreement could, for instance, foresee that the Commission SHOULD submit a legislative proposal if so required by one of the the Co-legislator (or by a citizen’s initiative). It could also foresee that the European Parliament could ask the Council to vote on a given legislative proposal (a faculty which is since decades recognized to the Commission) as it already granted to the Council and to the Commission to ask for a urgent vote of the EP.  These innovations could improve the current situation where the Commission does not give the opportunity to a majority of MEPs to challenge the Council on a legislative proposal which could implement an EU objective. The agreement could also oblige the Council to vote (even if it could be a rejection) on texts which are pending since years such as the anti-discrimination Directive or the revision of the access to documents Regulation.

Regrettably no one of these possible improvements is currently debated so that the only possible outcome risk to be a further unbalance of the EP  position (*)

But these procedural machineries taken apart the real question is if  an European Union “family photo” at the beginning of the year, without knowing what the future proposals could cover, is not a political and moral hazard. As the experience has showed since the entry into force of the codecision procedure in 1994, interinstitutional agreements are meaningful when done on a case by case basis as the representatives of the EU Governments and ones of the  EU Citizens could have a different perspective when confronted on specific legislative choices  (and quite rightly so).

Under this perspective I do believe that the new envisaged procedural machinery is not in the interest of the European Parliament nor probably of the EU Member States. For these reasons the lively debate of this week and the failure to vote on the Commission programme is probably more a sign of true democracy than the reverse.

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(*) It remain a mistery why after the entry into force of a Treaty the EP management fight so hard to lose the powers he has obtained. In this specific case the latter is  already planning a new internal procedure which will empower a rather obscure internal body (the Conference of the Committee chairman) to  give priority to the legislative proposals agreed in the interinstitutional planning by inevitably slowing down the other proposals.

 

 

Droit international : les règles d’acquisition et de retrait de la nationalité

EPRS | Service de recherche du Parlement européen. Service de recherche pour les députés. Auteur: Fanny Fontaine (*)

ORIGINAL PUBLISHED HERE

Le pouvoir discrétionnaire traditionnellement reconnu aux États en matière d’acquisition et de retrait de la nationalité n’est pas sans limite. Plusieurs principes développés par le droit international et la jurisprudence encadrent cette prérogative étatique : l’obligation d’éviter et de réduire les cas d’apatridie ; l’interdiction de la privation arbitraire de nationalité ; et l’obligation générale de non-discrimination. Des mécanismes de plainte individuelle existent également devant certains organes institués par les principaux traités internationaux de protection des droits de l’homme.

La nationalité en droit international

C’est sous l’angle des relations interétatiques et des conflits de lois sur la nationalité que le droit international est intervenu au début du XXème siècle. Dans son célèbre arrêt Nottebohm en 1955, la Cour internationale de justice a défini la nationalité comme le “lien juridique ayant à sa base un fait social de rattachement, une solidarité effective d’existence, d’intérêts, de sentiments jointe à une réciprocité de droits et de devoirs.” Lien de rattachement permettant l’exercice de certaines prérogatives étatiques, comme la protection diplomatique, la nationalité confère aussi un statut juridique nécessaire à l’exercice de nombreux droits civils et politiques. La Déclaration universelle des droits de l’homme, suivie en cela par plusieurs autres instruments internationaux et régionaux, établit le droit à la nationalité, ainsi que le droit de ne pas être privé arbitrairement de sa nationalité. Les enfants, ainsi que certains groupes de personnes vulnérables, bénéficient par ailleurs d’une reconnaissance spécifique du droit à la nationalité. Pour autant, le droit international laisse les États libres de déterminer les modalités d’obtention de la nationalité, par la naissance ou la filiation (en vertu des principes de ius soli et de ius sangiunis), ou par la naturalisation.

Le principe de non-discrimination en matière de nationalité, inscrit à l’article 5 de la Convention européenne sur la nationalité, n’interdit toutefois pas de manière absolue les traitements différenciés entre ressortissants, selon qu’ils ont acquis la nationalité à la naissance ou a posteriori par un acte de naturalisation.

La protection contre l’apatridie

Le droit à la nationalité est également régi par les Conventions des Nations Unies de 1954 et de 1961 relatives à l’apatridie. Ces instruments, adoptés afin de clarifier le statut des personnes apatrides et de leur conférer un certain nombre de droits fondamentaux, visent également à prévenir et à réduire les situations d’apatridie dans le monde (plus de 10 millions selon les Nations Unies). La Convention de 1961 sur la  réduction des cas d’apatridie établit ainsi le principe général selon lequel une personne ne peut être privée de sa nationalité si cette privation la rend apatride. L’article 8 de cette Convention autorise cependant la privation de nationalité, même si elle engendre l’apatridie, dans un nombre limité de circonstances. Ces exceptions au principe général recouvrent des hypothèses telles que l’obtention de la nationalité par le biais d’une fausse déclaration ou de tout autre acte frauduleux, ou le comportement de nature à porter un préjudice grave aux intérêts essentiels de l’État.

La Convention interdit également toute discrimination d’ordre racial, ethnique, religieux ou politique dans le cadre du retrait de nationalité. Elle exige en outre que des garanties procédurales accompagnent la perte de nationalité, sous peine de la rendre arbitraire.

La Convention européenne sur la nationalité

La Convention européenne sur la nationalité de 1997 énumère de manière plus limitative les hypothèses de déchéance de nationalité aboutissant à l’apatridie, et ne prévoit cette possibilité en son article 7 que dans le cas où la nationalité a été obtenue par le biais de fausses informations ou de conduite frauduleuse. D’autres motifs sont énumérés dans la Convention, comme le comportement portant un préjudice grave aux intérêts essentiels de l’État, ou l’engagement volontaire dans des forces militaires étrangères, mais ceux-ci ne peuvent fonder une déchéance de nationalité entraînant l’apatridie de la personne visée.

La privation arbitraire de nationalité : contours

L’interdiction de la privation arbitraire de la nationalité, qui vise à protéger le droit d’en conserver une, est énoncée par la Déclaration universelle des droits de l’homme comme un corollaire du droit à la nationalité. Ce principe général d’interdiction est repris dans de nombreuses conventions internationales et régionales. Les mesures conduisant à la privation de la nationalité, telles qu’autorisées par le droit international, doivent donc respecter un certain nombre de conditions afin de ne pas être arbitraires :

a) elles doivent être fondées sur une base juridique claire ;

b) elles doivent servir un but légitime qui soit conforme au droit international ;

c) elles doivent être proportionnelles à l’intérêt qu’elles visent à protéger et

d) des garanties procédurales doivent être respectées permettant à l’intéressé de faire valoir tous ses moyens de défense devant une instance indépendante.

Par ailleurs, la Commission du droit international a récemment soumis à l’Assemblée générale des Nations Unies un projet d’articles sur l’expulsion des étrangers, abordant en son article 8 la question de la déchéance de nationalité au regard de l’interdiction de la privation arbitraire de nationalité. L’Assemblée générale des Nations Unies a décidé d’examiner lors de sa prochaine session l’opportunité d’élaborer une convention sur cette base.

Le Secrétaire général des Nations Unies, dans son rapport “Droits de l’homme et privation arbitraire de la nationalité” soumis au Conseil des droits de l’homme en 2009, rappelle que “la notion d’arbitraire s’applique à tout acte de l’État, qu’il soit de nature législative, administrative ou judiciaire. La notion d’arbitraire peut être interprétée comme visant non seulement les actes contraires à la loi, mais aussi, plus largement, ceux qui ont un caractère inapproprié, injuste ou même imprévisible.”

Les mécanismes de plainte individuelle

Le Conseil des droits de l’homme des Nations Unies dispose d’une procédure de requête lui permettant de connaître de violations flagrantes et systématiques des droits fondamentaux dans un État donné, indépendamment de l’acceptation d’obligations conventionnelles par le pays concerné. La procédure a lieu en principe à huis-clos, et ne prévoit pas l’indemnisation des victimes présumées. D’autres procédures de plainte individuelle existent devant les différents organes créés en vertu d’instruments relatifs aux droits de l’homme. Ces requêtes individuelles sont conditionnées à l’épuisement des voies de recours internes, et peuvent mener à une décision contraignante d’indemnisation des victimes concernées. Le droit à la nationalité est fréquemment évoqué devant ces instances.

Jurisprudence 

Outre les décisions rendues en matière de nationalité par la Cour internationale de Justice dans l’affaire Nottebohm en 1955, ainsi que par la Cour permanente de Justice internationale en 1923 dans l’affaire des Décrets de nationalité promulgués en Tunisie et au Maroc, la Cour européenne des droits de l’homme et la Cour de Justice de l’Union européenne ont également eu à se prononcer sur les principes encadrant l’autonomie des États en la matière.
La Convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales ne garantit pas le droit à la nationalité en tant que tel ; néanmoins, la Cour européenne des droits de l’homme a énoncé à plusieurs reprises que les règles étatiques en matière d’acquisition et de perte de nationalité pouvaient porter atteinte au principe de non-discrimination inscrit à l’article 14 de la Convention, ainsi qu’au droit à la vie privée et familiale inscrit à l’article 8 de la Convention.

La Cour de Justice de l’Union européenne a quant à elle souligné à diverses occasions que l’exercice par les États membres de leur compétence en matière d’octroi et de retrait de la nationalité pouvait faire l’objet d’un contrôle juridictionnel opéré au regard du droit de l’Union, en particulier au regard du principe de proportionnalité.

(*) Clause de non-responsabilité et droits d’auteur. Le contenu de ce document est de la seule responsabilité de l’auteur et les avis qui y sont exprimés ne reflètent pas nécessairement la position officielle du Parlement européen. Il est destiné aux Membres et au personnel du PE dans le cadre de leur travail parlementaire. Reproduction et traduction autorisées, sauf à des fins commerciales, moyennant mention de la source et information préalable et envoi d’une copie au Parlement européen. © Union européenne, 2015