Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020

ORIGINAL PUBLISHED HERE ON  23 JUIN 2015

par Pierre Berthelet, CDRE

Le Professeur Panayotis Soldatos comparait il y a peu l’Union européenne à Prométhée enchaîné par les Etats membres. Ces réflexions mettant en évidence une construction européenne dépendante des États, « dont les élites politiques, écrit-il, se refusent à admettre la réalité de l’obsolescence de la souveraineté nationale », s’illustrent parfaitement avec l’adoption par le Conseil de la stratégie européenne de sécurité intérieure pour la période 2015-2020.

À première vue, la sécurité intérieure vient de franchir un pas supplémentaire dans l’intégration avec l’approbation par le Conseil le 16 juin 2015, de conclusions renouvelant et modernisant pour cinq années à venir la stratégie 2010-2014. Pour autant, il semble bien que les chaînes soient pesantes, car les États conservent la main, et de main ferme pourrait-on dire, le processus d’intégration dans ce domaine.

Ces conclusions entraînent une série de réflexions critiques quant aux conséquences institutionnelles et quant à la manière dont les États décident d’œuvrer dans la construction européenne en matière de sécurité intérieure.

Elles suscitent d’emblée des interrogations concernant l’inclusion du Parlement européen dans le processus décisionnel lié au déroulement du cycle, ainsi que sur la préservation accrue des droits fondamentaux (1).
Continue reading “Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020”

STATEWATCH : the migrant crisis in the Mediterranean

Published on Statewatch 

Key Analysis and Documents

1.   Statewatch Special Report: “War” to be declared on migrants: “Structured border zones”
2.   EU: Letter from Commissioner Avramopolous to Ministers with Annex
3.   EU: MED-CRISIS: Official statement on the launch of EUNAVFOR
4.   Statewatch Briefing: Coercive measures or expulsion: Fingerprinting migrants
5.   Statewatch Analysis: The EU’s Planned War on Smugglers
6.   Council: Secret plan for a war on smugglers – document (PSC)
7.   Council Press Release: 18 May 2015
8.   European Commission: A  European Agenda on Migration
9.   Mission in the Med: financial support under the ATHENA Decision
10. European External Action Service: Libya, a Political Framework for a Crisis Approach (EUBAM)
11. Ongoing EU external operations (European External Action service)

NEWS

1.   EU: German-Italian-French non-paper on EU migration policy
2.   EU: European External Action Service (EEAS): European Union Naval Force
3.   EU: European External Action Service (EEAS): EU prepares to go to “war” in the Med
4.   EU: No agreement on sharing “relocation” of migrants
5.   EU: Council of the European Union: LIMITE documents: Migration – Policy debate
6 .  Liquid Traces – The Left-to-Die Boat Case (Vimeo, link)
7.   EU:  Recommendation of XXX on a European resettlement scheme
8.   EU:  The new EU Migration Agenda takes shape: analysis of the first new measures
9.   EU:   MED CRISIS: Press coverage
10. EU: ACP: Destroying boats is not a solution to migration
11. EU: European Parliament: Migration: MEPs debate EU response.”

Key Analysis and Documents

1. Statewatch Special Report: “War” to be declared on migrants who – fleeing from war, persecution and poverty – have arrived in the EU are to be contained and detained in “Structured border zones” to be set up to “ ensure the swift identification, registration and fingerprinting of migrants (“hotspots”)”

This is set out in the Draft Conclusions of the European Council [the EU Heads of State] meeting on 25 and 26 June 2015: Draft conclusions (pdf)

Section 5.c says: “the setting up of structured border zones and facilities in the frontline Member States, with the active support of Member States’ experts and of EASO, Frontex and Europol to ensure the swift identification, registration and fingerprinting of migrants (“hotspots”);” [emphasis added]
Will the “swift fingerprinting” of those described here as “illegal” migrants involve coercive measures? See: Statewatch Briefing on a “Working Document” issued for discussion by the Commission: Coercive measures or expulsion: Fingerprinting migrants (pdf):

“If the data-subject still refuses to cooperate it is suggested that officials trained in the “proportionate use of coercion” may apply the minimum level of coercion required, while ensuring respect of the dignity and physical integrity of the data-subject..”

Statewatch Director, Tony Bunyan comments: “Where is the EU going? Migrants, including pregnant women and minors, who have fled from war, persecution and poverty are to be forcibly finger-printed or held in detention until they acquiesce or are expelled and banned from re-entry.”

Steve Peers, Professor of Law, University of Essex comments on the Draft Conclusions: “It is remarkable that Member States (if this draft is accepted) are indeed willing to accept the relocation of 40,000 asylum-seekers from Italy and Greece, and 20,000 resettled refugees.
It is also notable that all Member States will participate in the latter decision – with even the UK agreeing recently to resettle a few hundred more Syrians. This is a very modest amount of the numbers needing protection however.
The European Asylum Support Office does not seem to have the powers to participate in fingerprinting asylum-seekers, and the reference to ‘bringing together’ rules on fast-tracking asylum applications is very vague. Is the intention to lower standards, and if so, how exactly? Any moves to negotiate more readmission agreements and to expel more people who supposedly have no need for protection will have to comply fully with EU, ECHR and all national and international human rights standards.
Equally if Frontex is to gain more powers over expulsion it must be made more fully accountable, including as regards individual complaints against it.”

See: UN says one million refugees should be no problem for EU (euractiv, link): “The UN rights chief yesterday (15 June) called for the European Union to take bolder steps to address its swelling migrant crisis, insisting the bloc could easily take in one million refugees”

2.  EU: Jailing migrant families together with convicted criminals: A desperate EU policy to deter irregular migration by Steve Peers, Professor of Law, University of Essex:
Taken together, the loss of these protections will mean that irregular migrants, including irregular migrant families, will not only be detained in ordinary prisons, but mixed in with the ordinary prison population of convicted criminals and those awaiting trial for serious crimes. Moreover, their capacity to challenge their detention by means of judiicial review will be severely curtailed.
Coupled with the recent Commission paper offering guidelines for using force, including against pregnant women, on migrants who refuse to be fingerprinted, this represents a significant turn in EU policy – turning toward direct and indirect threats of physical violence to control their behaviour and induce them to leave.
To say the least, this is hard to square with the EU’s frequent professions of support for the human rights and decent treatment of migrants.”
See: Letter from Commissioner Avramopolous to Ministers with Annex (Statewatch version, 75KB) orlink to Council’s 10.5 MB version (pdf)

3. EU: MED-CRISIS: Official statement on the launch of EUNAVFOR: Council launches EU naval operation to disrupt human smugglers and traffickers in the Mediterranean (Council of the European Union, pdf):
“The first phase focuses on surveillance and assessment of human smuggling and trafficking networks in the Southern Central Mediterranean…. The Council will assess when to move beyond this first step, taking into account a UN mandate and the consent of the coastal states concerned..” [emphasis added]
It is by no means certain that a UN mandate will be forthcoming as this requires the consent of the affected states, in this case Libya. The EU’s own mission in Libya, EUBAM, withdrew from from the country last autumn, has been slimmed down and is now based in Tunisia because of the highly unstable security situation in Libya where two separate governments are vying for power in addition to a number of warring groups:.See:

EU and political situation in Libya: Interim Strategic Review of EUBAM Libya (LIMITE doc no: 7886-15, 13 April 2015, pdf): “a number of additional considerations have arisen as a result of the mission’s relocation to Tunis. The mission’s legal status in Tunis is still unclear, with the Tunisian authorities unofficially indicating that they would prefer not to explore the issue….its presence in Tunis will make it difficult for mission staff to assess conditions and operate in Libya [emphasis added]

4. Statewatch Briefing: Coercive measures or expulsion: Fingerprinting migrants (pdf):
New guidelines released by the European Commission allow Member States to use physical and mental coercive measures to take fingerprints of migrants and asylum seekers entering Europe, including minors and pregnant women. If they refuse, they face detention, expulsion and a potential five year EU-wide ban.
“If the data-subject still refuses to cooperate it is suggested that officials trained in the proportionate use of coercion may apply the minimum level of coercion required, while ensuring respect of the dignity and physical integrity of the data-subject..” [emphasis added]

5. Statewatch Analysis: The EUs Planned War on Smugglers (pdf) by Steve Peers, Professor of Law, University of Essex:
“it is clear from the documents discussed in the EUs Political and Security Committee last week that (unless plans have changed radically in the meantime) the High Representative is being economical with the truth. The EU action clearly contemplates action by ground forces. Moreover, it anticipates the possible loss of life not only of smugglers but also of Member States forces and refugees. In effect, the EU is planning to declare war on migrant smugglers without thinking through the consequences.”

6. Secret EU plan for a war on smugglers – document (PSC, pdf)

7. Press Release: Council establishes EU naval operation to disrupt human smugglers in the Mediterranean (pdf) and Comparison between Draft and Final Statements (pdf)

8. European Commission: A European Agenda on Migration (COM 240-15, pdf)

9. Mission in the Med could call for financial support under the: ATHENA Council Decision (pdf)

10. European External Action Service: Libya, a Political Framework for a Crisis Approach (LIMITE doc no: 13829-14, pdf)

11. Ongoing EU external operations (European External Action service, pdf)

NEWS

1. EU: German-Italian-French non-paper on EU migration policy (pdf) and Letter (pdf). Includes:
– Dialogue with source/transit countries: At upcoming EU-Africa summit in Malta “we should also discuss the relationship between migration and mobility and their impact on development, the promotion of fair trade and the strengthening of security cooperation as well as return and readmission issues”
– Proposal for EU CSDP civilian mission in Niger: EUCAP Sahel Niger to become permanent and “work even more closely with Nigerien authorities in the fight against smuggling and trafficking in human beings”
– Adequate funding for continued “engagement” with countries in the Horn of Africa, to deal with migration from/through those countries (in the recent ISF-Police work programme some money was put aside for this, see: Annual Work Programme for 2015 for support to Union Actions under the Internal Security Fund – Police cooperation and crime prevention (pdf)
– “We must increase the effectiveness of return and readmission programmes”
And: “Our migration policy goals should relate to other relevant horizontal foreign policies such as counter-terrorism, maritime security, water and climate policy and a reviewed European Neighbourhood Policy which also considers the neighbours of our neighbours.”

2. EU: MED-CRISIS: European External Action Service (EEAS): European Union Naval Force – Mediterranean (Press statement, pdf): Contributing States: Currently 14 Member States (BE, DE, EL, ES, FI, FR, HU, IT, LT, LU, NL, SE, SI, UK):
The Council shall assess whether the conditions for transition beyond the first phase have been met, taking into account any applicable UN Security Council Resolution and consent by the Coastal States concerned.”
Consent is needed for the EU to act within the territorial waters of another state (eg: Libya) and see: Comments below on this position.

See also: EU foreign ministers to agree on Mediterranean intelligence operations (euractiv, link): “EU foreign affairs ministers will today (22 June) agree on an intelligence gathering operation, the first phase of the bloc’s response to the burgeoning migration crisis in the Mediterranean, but military action against people smugglers will depend on the support of Libya’s National Unity Government and the United Nations.” and Naval bid to tackle migrants in Med (Yahoo News, link): “With GCHQ – Britain’s listening post in Cheltenham – said to be tracking the activities of smuggling gangs moving people to the Libyan coast, Defence Secretary Michael Fallon indicated that he wanted to see more intelligence-sharing.” also:Exclusive: France backs Italy-UK Plan for Sicily Intel Cell (Migrant Report, link)

See: EU agrees to launch military operation against people smugglers (FT, link): “EU officials have warned that casualties were possible after deciding to launch military action against people smugglers in the Mediterranean. Ministers of the 28-country bloc meeting in Luxembourg on Monday gave the go-ahead for a c controversial intelligence gathering operation, which will precede full-blown military action this year … “The use of firepower will be done in such a way that we do all we can to prevent any casualties to anyone,” said one EU official. “There is a difference between smugglers and migrants. If they are migrants, we will be even more cautious.” Asked whether the military operation created the risk of collateral casualties, the official replied: “Of course it would.”” and: EU navies take up position in Mediterranean(euobserver, link)
3. EU: European External Action Service (EEAS): EU prepares to go to “war” in the Med: Proposal of the High Representative of the Union for Foreign Affairs and Security Policy to the Council for a Council Decision launching the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) (pdf);
“The Operation Plan and the Rules of Engagement concerning the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) are approved…. EUNAVFOR MED shall be launched on xxx 2015.”
See: EU naval mission for Med gets green light (Politico, link)
See also: Draft Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) (LIMITE doc no: 8921-15, pdf) and Proposal for for a Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR Med) (LIMITE doc no: 8731-15, pdf): This contains details on:
Mission: “The Union shall conduct a military crisis management operation contributing to the disruption of the business model of human smuggling networkssystematic efforts to dispose of vessels and assets before they are used by smugglers”
Mandate: includes: “boarding search, seize and diversion of smuggling ships”
“The Operation Headquarters of EUNAVFOR MED shall be located in Rome, Italy”
“PSC shall exercise the political control and strategic direction of EUNAVFOR MED”
[Political Security Committee]
“The EUMC shall monitor the proper execution of EUNAVFOR MED conducted under the responsibility of the EU Operation Commander” [EU Military Committee]
The Council hereby authorises the PSC to invite third States to offer contributions”

4. EU: No agreement on sharing “relocation” of migrants: Council of the European Union: Justice and Home Affairs Council, 15-16 June 2015, Luxembourg: Final press release (pdf):
“As regards the concrete proposal on relocation, Ministers stressed that on the basis of the principle of solidarity they are all ready to make an effort to help member states under a particular migratory pressure. Several delegations stressed the necessity to strike the right balance between solidarity and responsibility.. Ministers invited the Council’s preparatory bodies to continue these discussions with the aim of achieving full implementation as soon as possible.”
See also; Civil Liberties Committee Chair, Claude Moraes, regrets EU minister’s failure to reach agreement on the migration package (EP Press release, pdf)

5. EU: Council of the European Union: LIMITE documents: Migration – Policy debate & European Council draft Conclusions
European Agenda on Migration – Policy debate (LIMITE doc no: 9825-15, 11 June 2015, pdf) Many areas of disagreement between Member States on how to respond to the crisis in the Mediterranean:
“”Immediate Action” but also builds on four pillars as a basis for a comprehensive European migration policy: – Reducing incentives for irregular migration; – Border management; – Strong common asylum policy; – New policy on legal migration….
There is wide consensus with regard to the need to further cooperate with third countries since both the root causes of and solutions to migration related issues can be sought there. In order to ensure a genuinely comprehensive approach, some Member States have suggested to strengthen the links with the Internal Security Strategy and measures proposed therein….
Member States’ views differ on the proposed concept of relocation in order to respond to high volumes of arrivals that includes temporary scheme for persons in need of international national protection.. The total number of persons to be relocated, the available funding, and the capacity of the Member States’ structures to deal with relocation were equally questioned…”
[emphasis added]
and: Update: COR -1 (LIMITE doc no: 9825-15, 12 June 2015, pdf)

European Council (25 and 26 June 2015) – Draft guidelines for the conclusions (LIMITE doc no: 8392-15, 10 June 2015, pdf): Covers Mediterranean crisis response, security challenges, economic issues, the Digital Agenda and the UK:
Position on “1. “Relocation / resettlement p.m.” is blank as is Position: “IV. UK p.m” and “Return policy:Mobilise all tools to promote readmission of unauthorised economic migrants to countries of origin and transit….” [emphasis added]
read the restraint manual.

6. Liquid Traces – The Left-to-Die Boat Case Vimeo, link): “Liquid Traces offers a synthetic reconstruction of the events concerning what is known as the “left-to-die boat” case, in which 72 passengers who left the Libyan coast heading in the direction of the island of Lampedusa on board a small rubber boat were left to drift for 14 days in NATO’s maritime surveillance area, despite several distress signals relaying their location, as well as repeated interactions, including at least one military helicopter visit and an encounter with a military ship. As a result, only 9 people survived.” See also: Left ot die – report (link)

7. EU: MED-CRISIS: Germany and France urge Commission to revise immigration plan (euractiv, link): “Germany and France on Monday (1 June) urged the EU to find a fairer way to admit and distribute asylum seekers, as their leaders met the European Commission chief in Berlin….. France and Germany said in the joint statement that they currently were among five member states, along with Sweden, Italy and Hungary, that “are in charge of 75% of the asylum seekers”. “This situation is not fair and no longer sustainable,” they said.”
See European Commission: Recommendation of XXX on a European resettlement scheme (COM 286-15, pdf) and Annexes (pdf)

8. EU: MED-CRISIS: European Commission: Recommendation of XXX on a European resettlement scheme (COM 286-15, pdf): It was going to be 5,000 people, then 40,000 now:
“The Commission recommends that Member State resettle 20 000 people in need of international protection”
and Annexes (pdf)

8.  The new EU Migration Agenda takes shape: analysis of the first new measures (EU Law Analysis, link)

9. EU: MED CRISIS: Press coverage:
EU’s refugee plans need a reality check: The EU this week outlined plans to resettle and relocate refugees, but one expert taking a closer look at the proposals argues they put the rights of migrants and asylum seekers at risk. (The Local, link) Good critique of EU plans

EU border chief wants protection from armed smugglers: The EU’s border agency Frontex wants military protection from armed migrant smugglers as it expands operations in the Mediterranean and closer to the Libyan coast (euobserver, link)

British tourists complain that impoverished boat migrants are making holidays ‘awkward’ in Kos(Independent, link)

Mediterranean migrant crisis: Hundreds rescued off Sicily (BBC News, link) and Migration: Are more people on the move than ever before? (BBC, link) with map

Italy Hands Smuggler Unprecedented Life Sentence as Europe Prepares for Migrant Deluge (BB, link)

Tunisian – and Top E.U. Generals – Fear Mission Creep Madness in Libya (The Daily Beast, link): “A newly revealed classified document and a history of grave misjudgments warn against the dangers of the new EU plan to stop migrants…. Europe’s defense chiefs are warning their political superiors that the planned military mission to stop migrant-smuggling boats crossing the Mediterranean can lead to land operations in Libya and possible clashes with the Islamic State’s affiliate in that failing North African state, a turn of events bound to threaten neighboring Tunisia’s fragile equilibrium still further.”

Tunisian PM Speaks Against EU Military Action to Stop Refugee Smugglers (Sputnik News, link):
“Tunisia opposes any military effort by the EU to tackle refugee smuggling across the Mediterranean Sea, Prime Minister Habib Essid said Thursday. “Tunisia’s position was always clear… We are originally against all military action, both to regulate political conflict and to regulate the problem with illegal smugglers,”  Essid said in the European Parliament.”

Migrants en Méditerranée : la Tunisie contre toute intervention militaire [Migrants in the Mediterranean: Tunisia against all military intervention] (rtbf.be, link):
“Habib Essid said that his country is “against any military intervention to solve this problem. This problem must be resolved upstream and downstream. These people take risks, sell everything they have around them to come to Europe, for more freedom, for better economic opportunities for work. I know the problems this poses for all countries of the European Union, but the solution is to look other than make occasional military interventions.”
The European Parliament press release does not mention these comments: Tunisia’s Prime Minister Habib Essid on security and migration challenges (pdf)

Before the Boat: Understanding the Migrant Journey (MPI, link): “Deep, sophisticated insight into the decision-making process of those who undertake these journeys is necessary; without this information and a wider understanding of the political economy of migrant smuggling, policymakers essentially are making decisions in the dark.”

10. EU: MED-CRISIS: ACP: Destroying boats is not a solution to migration (euractiv, link): “The Secretary-General of the ACP (African, Caribbean and Pacific) group of states said yesterday (21 May) that his organisation was against the EU’s idea of destroying the boats of human traffickers, who make fortunes by luring prospective immigrants into risky journeys across the Mediterranean.”

And see: Twisting the ‘lessons of history’ to authorise unjustifiable violence: the Mediterranean crisis (Open Democracy, link): “More than 300 slavery and migration scholars respond to those advocating for military force against migrants attempting to cross the Mediterranean. This is no slave trade. Where is the moral justification for actions that cost lives?”

Also: “The War on migrants and refugees: has the ‘never again’ imperative been forgotten?” (Franck Duvell, link): “This imperative derived from the lessons learned from the Holocaust and the failure to rescue the European Jews has now been relinquished it seems. Are we now back at the moral state of the 1930s were unwanted populations are removed from the ‘realm of moral subjects’ (Bauman 1996) and killed or left to die and the needy are turned away and refused shelter?”

11. EU: European Parliament: Migration: MEPs debate EU response (pdf): “MEPs discussed on 20 May European Commission plans to tackle the large numbers of migrants seeking to reach the European Union, often risking their lives at sea. Commission vice president Frans Timmermans and migration commissioner Dimitris Avramopoulos announced a number of measures, including an emergency mechanism for relocating migrants, a resettlement scheme to take in migrants from countries outside the EU and more funds for securing borders.”

See also: MEPs angry at member states over immigration (euractiv, link): “EU lawmakers on Wednesday accused some member states of passing the buck by rejecting a Brussels plan for binding quotas for refugees making the dangerous Mediterranean crossing.”

Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020

ORIGINAL PUBLISHED HERE ON 23 JUIN 2015

par Pierre Berthelet, CDRE

Le Professeur Panayotis Soldatos comparait il y a peu l’Union européenne à Prométhée enchaîné par les Etats membres. Ces réflexions mettant en évidence une construction européenne dépendante des États, « dont les élites politiques, écrit-il, se refusent à admettre la réalité de l’obsolescence de la souveraineté nationale », s’illustrent parfaitement avec l’adoption par le Conseil de la stratégie européenne de sécurité intérieure pour la période 2015-2020.

À première vue, la sécurité intérieure vient de franchir un pas supplémentaire dans l’intégration avec l’approbation par le Conseil le 16 juin 2015, de conclusions renouvelant et modernisant pour cinq années à venir la stratégie 2010-2014. Pour autant, il semble bien que les chaînes soient pesantes, car les États conservent la main, et de main ferme pourrait-on dire, le processus d’intégration dans ce domaine.

Ces conclusions entraînent une série de réflexions critiques quant aux conséquences institutionnelles et quant à la manière dont les États décident d’œuvrer dans la construction européenne en matière de sécurité intérieure.

Elles suscitent d’emblée des interrogations concernant l’inclusion du Parlement européen dans le processus décisionnel lié au déroulement du cycle, ainsi que sur la préservation accrue des droits fondamentaux (1). La stratégie ne fait pas véritablement l’impasse sur ces deux questions, car elle les mentionne en soulignant l’importance de ces problématiques. Cependant, l’observateur ne peut que demeurer sur sa faim quant aux modes d’inclusion du Parlement européen, et à la manière dont les droits fondamentaux ont vocation à être davantage pris en compte, alors que le Conseil semble précisément se focaliser davantage sur la sécurité que sur la liberté. Cette stratégie pour la période 2015-2020, justifiée par la permanence des menaces, voire leur accroissement, en premier lieu, le terrorisme et la grande criminalité organisée (p. 2 des conclusions du Conseil du 16 juin), est qualifiée par le Conseil de « globale et réaliste » (p. 5). Son adoption mérite d’être saluée à ce titre, car elle confère une certaine cohérence à une action qui dépasse les frontières de l’espace de liberté, de sécurité et de justice, pour comprendre des thématiques telles que la gestion de crise, la protection des infrastructures critiques et la cybersécurité. Pour autant, en l’examinant de plus près, cette stratégie pour la période 2015-2020 n’apparaît pas exempte de toutes critiques. Il est vrai qu’elle est bien plus précise concernant les priorités fixées par la stratégie précédente qui avait, par exemple, érigé la « lutte contre la violence en elle-même » en un objectif de sécurité de l’Union.

En revanche, elle l’est moins que le plan d’action venant compléter cette stratégie de 2010 et ce, en raison de l’ambiguïté des objectifs fixés par la stratégie européenne pour la période 2015-2020 (2). Il est même possible de considérer que la stratégie de 2015 est de moins bonne facture que la précédente, car il s’agit à la fois d’un document opérationnel, mais qui n’en est pas réellement un, et d’un document stratégique, mais qui n’en est pas réellement un non plus. De prime abord, elle se positionne à mi-chemin entre d’une part, des conclusions des 4 et 5 décembre 2014 qui énoncent les grands principes, et d’autre part, un plan d’action destiné à lister des mesures concrètes. Néanmoins, sa portée se révèle être bien plus opérationnelle que stratégique, car le plan d’action à venir, visant à mettre en œuvre cette stratégie censée, comme son nom le laisse supposer, être un document de nature stratégique, est réduit à la portion congrue (3).

Si le positionnement de la stratégie est complexe sur le plan normatif, il l’est beaucoup moins sur le plan conceptuel dans la mesure où la stratégie de 2015 demeure, comme celle de 2010, très empreinte d’une idéologie de la sécurité globale (4). Elle révèle certes, le peu d’audace de la part du Conseil concernant les avancées en matière de sécurité, reflétant le double discours habituel des États, très volontaires dans les déclarations d’intention, mais beaucoup moins dans la concrétisation de celles-ci. En revanche, elle suscite des interrogations quant aux relations qu’entretiennent la sécurité intérieure et l’espace pénal européen et ce, en raison de la place faite à la doctrine relative à la sécurité globale (5). L’un et l’autre se construisent de manière séparée et même dans l’ignorance mutuelle. La stratégie révèleà ce propos un monde de la sécurité (police, douane, garde-frontières) dont l’horizon d’action est davantage marqué par une collaboration avec celui de la sécurité et de la défense, qu’avec celui de la justice.

1. Une impasse sur le Parlement européen et sur les droits fondamentaux ?

Continue reading “Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020”

THE LAW OF GREXIT: WHAT DOES EU LAW SAY ABOUT LEAVING ECONOMIC AND MONETARY UNION?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS  on Sunday, 28 June 2015

by Steve Peers 

A Greek referendum on whether to accept its creditors’ offer is currently scheduled for next week. It’s not clear at this point whether the Greek voters’ refusal to accept the offer would necessarily lead to Greece leaving the EU or EMU, or at least defaulting on its debts. In fact, it is not clear what would happen if Greek voters decided to accept the offer, since it was still under the process of negotiation when the referendum was announced, and may no longer be on the table at the time of the referendum.

However, since a wide range of outcomes are possible, it’s useful at this stage to look at the legal framework for departure from economic and monetary union (EMU) – and in particular whether Greece would have to leave the EU if it left the single currency. (See also my previous blog posts, before and after the last Greek election, and Ioannis Glinavos’ recent analysis of whether Greece could be forced out of the euro).

The starting point is that the EU Treaties contain detailed rules on signing up to the euro, which apply to every Member State except Denmark and the UK. Those countries have special protocols giving them an opt-out from the obligation to join EMU that applies to all other Member States. (I’ll say that again, more clearly, for the benefit of those who claim otherwise: there is absolutely no way that the UK can be required to sign up to the single currency. That would not change in any way if British voters decided that the UK should stay in the EU).

But there are no explicit rules whatsoever on a Member State leaving the euro, either of its own volition or unwillingly, at the behest of other Member States and/or the European Central Bank (ECB).  There’s an obvious reason for this: the drafters of the Maastricht Treaty wanted to ensure that monetary union went ahead, and express rules on leaving EMU would have destabilised it from the outset. Put simply, legally speaking, Greece can’t directly jump or be pushed from the single currency. Continue reading “THE LAW OF GREXIT: WHAT DOES EU LAW SAY ABOUT LEAVING ECONOMIC AND MONETARY UNION?”

Meijers Committee : Promoting Intra EU labour mobility of international protection beneficiaries

Original published on the Meijers Committee (*) site

Summary : The Meijers Committee proposes to enhance the opportunities for employment of international protection beneficiaries across the EU by allowing them to work in another Member State after two years of legal residency and under more favourable conditions than current EU directives allow. This incentive for achieving economic independence corrects the current legal regime under which socioeconomic criteria play no role in sharing the responsibility for asylum-seekers and international protection beneficiaries. It also allows for greater personal freedom of the people concerned and gives them a better chance of building a stable future. The proposed measure draws largely from that existing framework in terms of rights and obligations of individuals and Member States.

    1. Introduction

The Council of the EU is currently discussing new approaches to sharing the responsibility for asylum seekers and international protection beneficiaries among Member States. The Meijers Committee advises that these discussions should move beyond the issue of distributing asylum seekers and also explore the possibilities of enhancing intra-EU movement for persons who have been granted asylum.
In this note, the Meijers Committee proposes to allow international protection beneficiaries recognised in one Member State to take up a confirmed job offer in another Member State.
Granting beneficiaries of international protection free movement within the EU on objective conditions of having work and not becoming a burden on the social assistance system of another Member State contributes to the economic dynamism of the Union and helps relieve the pressure on those Member States whose asylum systems are particularly burdened and where socioeconomic conditions are generally less then favorable. It also enhances the prospects that the beneficiaries of international protection will better integrate by increasing their economic opportunities.

Finally, it stresses that these third-country nationals may be an asset to the EU rather than a burden or a problem.

To that purpose, the Meijers Committee proposes to apply elements of the free movement regime for EU workers to international protection beneficiaries and to complement these with certain conditions which have already been worked out in the regime for conditional labour mobility of international protection beneficiaries who have acquired EU long-term resident status and other relevant EU instruments. This note sets out the main features of such a measure.

2. Subject of the proposal

Introduce a supplementary measure to the existing system of distribution of asylum seekers and international protection beneficiaries or to a possible quota system, which permits international protection beneficiaries recognised in one Member State to take up a confirmed job offer in another Member State. This allows a distribution of beneficiaries of international protection between Member States on the basis of employer’s needs and the economic activities of third-country nationals.

The beneficiaries may gain a confirmed job offer in a second Member State by looking in EURES  or by using his or her right to travel up to three months within a single period of six months in the Schengen area. Most likely the people involved will look for work in Member States where family or contacts reside.
Permit vacancies in other Member States be taken up by third-country nationals already lawfully in the EU, rather than introduce new third-country nationals from outside the EU.
Avoid or diminish long-term unemployment, dependence on social benefits or irregular employment in the Member State that granted international protection by granting the beneficiaries conditional mobility within the Union.

3.Existing framework for labour mobility within the EU

There are at present several EU regimes for labour mobility for different categories of persons:

  • Free movement of EU workers and their Non-EU family members under Directive 2004/38 (Citizenship).
  • Conditional labour mobility of third-country nationals who acquired the status of an EU long-term resident in one Member State by allowing them to accept a job in another Member State under Directive 2003/109 (Long Term Residents). The latter State may refuse a work permit and admission during the first year on labour market grounds. Since 2013, beneficiaries of international protection have been covered by this Directive on the basis of Directive 2011/51.
  • Directive 2009/50 (Blue Card) for highly qualified workers from outside the EU.
  • Directive 2014/66 (Intra Corporate Transfer) for third country nationals.
  • Proposal to recast and merge the Students and Researchers Directive (COM(2013) 151 final), including a period for a third-country national to search for employment after graduation from a European education institute.

Although Directive 2011/51 has provided international protection beneficiaries with a right to reside in a second Member State to exercise an economic activity, this right is subject to strict conditions. It is only acquired after five years of lawful residence in the first Member State.

Further, the second Member State may, during the first year, apply a labour market test, under which preference may be given to Union citizens and third-country nationals who are legally resident and receive unemployment benefits in the second Member State. However, there are good reasons to allow free movement of international protection beneficiaries on more favourable terms.
Other third-country nationals are normally only admitted to a first Member State if they meet conditions of having work, resident family members with sufficient income, or have been admitted as a student, in short because of their socioeconomic bond with the destination country. International protection beneficiaries, on the other hand, often do not have self-evident bonds with the first Member State due to the nature of their residence (asylum) and the Dublin criteria for allocating asylum seekers.
The measure proposed by the Meijers Committee would help correct this effect.

4.Growing experience with labour mobility of third-country nationals within the EU

Actual, large-scale use of the Long-term residents Directive 2003/109 started only five years after the directive had to be implemented in national law of the 25 Member States bound by it.
Italy and Spain had both issued permits to more than 1.8 million EU long-term residents by the end of 2013. Mobility to another Member State commenced only recently. Germany issued 1,500 residence permits to third-country nationals who had acquired the EU long-term resident status in 2012, and 3,000 in 2013. At the end of 2013 Germany had issued more than 5,500 residence permits to third-country nationals who had acquired the EU long-term resident status in another Member State, and at the end of 2014 almost 10,000 such permits had been issued, mainly to third-country nationals arriving from Italy, Slovenia, Spain and the Czech Republic.1

5. Legal elements

Is there a legal basis in the Treaties?
Yes, Article 78(2)(a) TFEU obliges the Union to provide a uniform status of asylum for nationals of third countries, valid throughout the Union. The exception of Article 79(5) TFEU (“Member States may determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work”) does not apply, since the third-country nationals are already lawfully resident in the EU.

 Does the proposal satisfy the subsidiary requirements?
The legal position of international protection beneficiaries regarding labour mobility is already regulated by Directive 2011/51, provided they are long term residents pursuant to Directive 2003/109. The proposed mobility between Member States requires a common action. The EU is currently looking for a common solution to the question of responsibility for asylum seekers and international protection beneficiaries. This measure would address part of that question.

 Is this proposal proportionate?
The proposed measure is simple and relatively easy to achieve: it requires a limited amendment of the existing legal framework, which consists primarily of directives or a short new directive. The competence to check whether the   proposed employment conditions are   in conformity with national law remains with   Member States.

 What should the personal scope be?
Given the similarity of their status, both refugees and subsidiary protection beneficiaries should be covered. Beneficiaries of forms of national protection cannot be covered by an instrument under EU law as there is no legal basis for such in the TFEU. But they could be covered on the basis of national law of the second Member States.

 What should the personal scope be? (II)
For workers only. The right to move arises only if a labour agency of the second Member State confirms the existence and conditions of the job offer and that job provides sufficient resources for the third-country national to sustain himself, without recourse to social assistance in the second Member State.

When can an international protection beneficiary apply for a job in another Member State?
After a minimum of two years of lawful residence in the first Member State, rather than the five years under the revised Directive 2003/109. In those two years the beneficiaries will have an opportunity to settle in a Member State and, if necessary, supplement their professional qualifications. Moreover, this waiting period reduces the chances that the protection status is granted primarily to allow onward mobility within the EU.

Is transfer of international protection status necessary?
The proposal requires no rules on automatic transfer of international protection between Member States, similar to Directive 2011/51 revising Directive 2003/109.

What terms regarding health insurance apply?
Health insurance coverage maybe be required by the second Member State, similar to Article 15(2)(b) of Directive 2003/109.

Are integration requirements allowed?
No integration conditions before admission to the second Member State. Such conditions are also absent from the Qualification Directive 2011/95.

6.Rights in the second member state

Protection against refoulement
Protection status is granted on the basis of similar rules as in Directive 2011/51. Similarly, the rules of Directive 2011/51 on protection against expulsion to third countries, the right to return to the first Member State until long-term resident status in the second Member State is obtained, and the concomitant obligation of the first Member State to take the third-country national back will apply.

Equal treatment
The equal treatment clause of Article 11 of Directive 2011/98 (Single Permit) will apply automatically to these third-country nationals admitted to employment.

Family reunification
Family reunification should take place on the basis of the same rules as Article 16 of Directive 2003/109, i.e. if already reunited in the first Member State, admitted family members may accompany or join; if not yet reunited in the first Member States, the rules of Directive 2003/86 apply, such as a residence permit for at least one year and sufficient income.

Public assistance
No right to public assistance during the first three years, and after that transitional period access to public assistance as provided in Article 11 of Directive 2003/109.

Recognition of professional qualifications
Recognition of professional qualifications acquired in another Member State by the second Member State should take place on the basis of a regime similar to Directive 2005/36.

Consequences of dismissal or unemployment
The worker will be permitted to look for another job and is entitled to equal treatment on the basis of national law concerning unemployment benefits in accordance with the Single Permit Directive 2011/98. In case the worker complies with the conditions of Directive 2009/50 on entry and residence of third-country nationals for the purposes of highly qualified employment he may, in accordance with Article 10(2) of that directive, apply for a Blue Card in his Member State of residence or in another Member State. Before the worker has acquired the long-term residence status in the second Member State, the first Member State will be obliged to take the third-country national back if entitlement to unemployment benefits ends and no new job is found.

7.Risk that Member States grant asylum more often

The Meijers Committee has no reason to expect that increased possibilities of free movement will encourage Member States to grant asylum more often, because i) the right to move to another Member State is conditioned on two years of lawful residence in the first Member State, ii) the right only accrues to international protection beneficiaries who find work in another Member State, and iii) the first Member State remains responsible for taking the person back if the conditions for residence in the second Member State are no longer fulfilled until long-term resident status in the second Member State is obtained.

NOTE
1 See Bundesministerium des Innern, Migrationsbericht 2013, p. 100ff and reply of the German government of April 2015 (no. 4/132) to a written parliamentary question in the Bundestag.

About
The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Anti-discrimination and Institutional Law. The Committee aims to promote the protection of fundamental rights, access to judicial remedies and democratic decision-making in EU legislation. The Meijers Committee is funded by the Dutch Bar Association (NOvA), Foundation for Democracy and Media (Stichting Democratie en Media) the Dutch Refugee Council (VWN), Foundation for Migration Law Netherlands (Stichting Migratierecht Nederland), the Dutch Section of the International Commission of Jurists (NJCM), Art. 1 Anti-Discrimination Office, and the Dutch Foundation for Refugee Students UAF.

Contact info: Louis Middelkoop Executive secretary post@commissie-meijers.nl +31(0)20 362 0505

Please visit www.commissie-meijers.nl for more information.

WHAT IF A REFUGEE ALLEGEDLY SUPPORTS TERRORISM? THE CJEU JUDGMENT IN T

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 24 June 2015)

by Steve Peers

What happens if a refugee allegedly supports terrorism? The most obvious answer is that the person concerned might be excluded from getting refugee status in the first place, in accordance with Article 1.F of the Geneva (UN) Convention on Refugees, as reflected in the EU’s qualification Directive and interpreted in the CJEU’s B and D judgment of 2010. However, the situation is more complicated if the person already has refugee status, and his or her alleged support for terrorism begins or comes to light only later. This issue was addressed for the first time in today’s CJEU judgment in T.

Background

The qualification Directive offers three possible responses to a situation like this.

First of all, a Member State may revoke refugee status where there are ‘reasonable grounds for regarding [a refugee] as a danger to the security of the Member State in which he or she is present’, or where the refugee was ‘convicted by a final judgment of a particularly serious crime’ so ‘constitutes a danger to the community of that Member State’.

Secondly, it is possible to refoule a refugee (ie return the refugee to an unsafe country) on the same two grounds (which are also the exceptions to non-refoulement set out in the Geneva Convention), if that is not ‘prohibited’ by Member States’ international obligations. In that case, Member States may revoke or refuse to renew the refugee’s residence permit.

Finally, Member States must issue refugees with a residence permit and renew it, ‘unless compelling reasons of national security or public order otherwise require’.

Also, a Member State is obliged to revoke refugee status if the refugee ‘should have been’ excluded from refugee status in the first place, but presumably this only applies where the activity justifying exclusion took place before the refugee status was granted. All of the same rules apply to the parallel status of ‘subsidiary protection’, which exists for persons who don’t qualify for refugee status but who otherwise need international protection because they are fleeing torture, the death penalty or a civil war.

Judgment

This case concerned a Turkish national who moved to Germany back in 1989 and obtained refugee status there in 1993, on the basis of his activities in support of the PKK, the Kurdish group which Turkey (and subsequently also the EU) regards as a terrorist organisation. However, those links later led to a conviction for supporting terrorism, due to his collection of money for the PKK and distribution of PKK literature. His residence permit was revoked but he retained refugee status, and he was not expelled from the country. Nevertheless, he still challenged the revocation of his residence permit.

The CJEU’s judgment considers the second and third of the two issues above: refoulement (which might lead to the loss of a residence permit) and the loss of the residence permit as such. First of all, the Court explains the relationship between these two overlapping rules. If the criteria to refoule a refugee are satisfied, a Member State can either (a) refoule the refugee; (b) expel the refugee to a safe country; or (c) allow the refugee to stay. In the event that Member States can refoule the refugee, then they can also revoke a residence permit. But conversely, if the criteria to refoule the refugee are not satisfied, then the Member State cannot withdraw a residence permit on this ground.

In that case, the Court ruled, the question arises whether the rules on granting residence permits apply. Those rules don’t expressly refer to revoking a permit which has already been issued, but the Court ruled that this possibility was implicit.

The Court then moved on to interpret the two sets of grounds for loss of a residence permit at issue in this case: the ‘reasonable grounds’ that the refugee is a security risk, and the ‘compelling reasons of national security or public order’. These concepts aren’t further defined in the Directive, and the language versions of the Directive differ. So the Court proceeded to interpret these rules in the overall context of the Directive – protecting human rights and developing a common policy. In the Court’s view, refoulement of a refugee is a ‘last resort’ in the event that there is no other option to protect national security or the public. Since it could have a ‘drastic’ impact on the refugee, it was subject to ‘rigorous conditions’.

In contract, the mere loss of a residence permit did not lead to refoulement, and so the threshold for the application of the relevant rules was lower. The rules on loss of a residence permit ‘only’ apply where the refugee’s actions ‘cannot justify loss of refugee status, let alone the refoulement of that refugee’, and so did not ‘presuppose the existence of a particularly serious crime’.

So does support for a terrorist group meet the threshold to be one of the ‘compelling reasons of national security or public order’? The Court ruled that the concept should be interpreted consistently with the public security exceptions in the EU’s citizens’ Directive, because ‘the extent of protection a company (sic) intends to afford to its fundamental interests cannot vary according to the legal status of the person that undermines those interests.’ So terrorism is covered by that concept, and there must be a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Moreover, the EU has listed the PKK as a terrorist group, which is a ‘strong indication’ that must be ‘taken into account’. Since the CJEU had already ruled (in B and D) that terrorist acts could lead to exclusion from refugee status, it must follow that they could equally justify revocation of a residence permit.

But that was not the end of the matter. The national court has to go on to a second step, to consider whether the specific actions of a refugee in fact constitute support for terrorism so as to justify revocation of a residence permit. Not all forms of support for an organisation which the EU considers to be terrorist can lead to revocation of a refugee’s residence permit. As with the exclusion clause (see B and D), it was necessary to look at the individual’s behaviour, examining ‘in particular whether he himself has committed terrorist acts, whether and to what extent he was involved in planning, decision-making or directing other persons with a view to committing acts of that nature, and whether and to what extent he financed such acts or procured for other persons the means to commit them’.

In this case, Mr. T had participated in legal meetings, celebrated the Kurdish New Year and collected money for the PKK. The Court asserted that this ‘does not necessarily mean that he supported the legitimacy of terrorist activities’. Indeed, such acts ‘do not constitute, in themselves, terrorist acts’. The national court also had to consider the ‘degree of seriousness of danger’ Mr. T posed. It could take into account his criminal conviction but also had to consider that he was only sentenced to a fine. Also, the principle of proportionality (which the Court stated was not relevant when applying the exclusion clause, in B and D) was relevant here: the national court had to consider if Mr. T was still a threat to public security at the time the decision to revoke the permit was taken.

Finally, the Court ruled on the consequences of the loss of a residence permit. The person concerned retained refugee status and so was still entitled to all of the rights granted to a refugee, including access to employment, education, welfare, healthcare and housing. Although a clause in the preamble to the Directive stated that a residence permit could be made a condition of obtaining such benefits, the Court said that this clause was irrelevant since it was not reflected in the main text. Those rights could ‘only’ be restricted in accordance with the conditions in the Directive, and Member States ‘are not entitled to add restrictions not already listed there’. This was directly relevant to Mr. T, since Germany had indeed restricted his access to all of those benefits. But this is ‘incompatible’ with the Directive.

Comments

This was the first chance for the Court to rule on the status of refugees, ie the various benefits attached to refugee status, since its previous judgments on the qualification Directive have essentially concerned the definition of refugee or subsidiary protection status (or the linked issues of exclusion from or cessation of that status). Broadly speaking, the judgment does a good job clarifying the points which the Court set out to tackle – but inevitably the Court could not deal with every possible issue, and some of its answers raise further questions of their own.

First of all, the Court provides a useful clarification of the distinction between the non-refoulement rules and the rules on residence permits as such. The crucial point here is that the latter rules apply only when the former do not. While this makes the residence permit rules sound as if they have secondary importance, in fact the reverse is true. In practice, the residence permit rules are more important, since it is rarely if ever possible to refoule a refugee consistently with international obligations. This is because the case law on Article 3 of the European Convention on Human Rights (ECHR) makes clear that even if a person has done things awful enough to justify refoulement under the Geneva Convention, he or she cannot be removed to face a real risk of torture or inhuman or degrading treatment in violation of Article 3 ECHR – since that provision is not subject to any exception relating to the behaviour of the person concerned (or any other exception either). It was not necessary for the CJEU to rule on this point in the T case, since Germany was not seeking to remove him, but it would surely be willing to do so if the case arose (see the judgment in Abdida, discussed here, where the CJEU relied upon another strand of the Article 3 case law).

In the unusual event that refoulement might be possible, the CJEU’s ruling leaves some questions to ponder. It refers to the possible removal of a refugee to a safe third country. Presumably the criteria to determine the meaning of that concept are those in the asylum procedures Directive. It is also possible that the Court would be willing to rule on the interpretation of Article 32 of the Geneva Convention – which regulates the substance and procedure of the expulsion of refugees to safe countries (if the refugees are legally resident) – in this context. The CJEU might also be called upon to elaborate further what it means by saying that refoulement is a ‘last resort’ in the event that no other alternatives are available.

As for the main thrust of the Court’s ruling, on the ‘compelling reasons’ exception to the grant of residence permits, it is striking that the Court continues its recent trend of applying its case law on the EU citizens’ Directive to the ‘public policy’ clauses in EU immigration and asylum law. It did the same thing just a few weeks ago as regards the voluntary departure rules in the EU Returns Directive (see the Zh and O judgment, discussed here), and the broad wording of its judgment in T on this point suggests that all public policy clauses (they appear in swathes of EU legislation in this area) should have the same meaning. Having said that, the Court clearly accepts that the threshold for refoulement of a refugee is higher than for the normal public policy exception.

The Court also borrows most of its prior reasoning on the exclusion clause (with the addition of a proportionality element) to make clear that broad support of a group which the EU considers to be terrorist is not enough: there must be an active participation in violent acts or the funding of those acts. Presumably there must be a direct link with the funding of those acts, since the Court finds that Mr. T’s participation in collecting money for the PKK generally is not enough. Implicitly the Court shows little sympathy with recent EU and national moves against ‘radicalisation’ of Islamic communities (as very broadly defined), and it makes no reference to the Council of Europe measure (reflected in EU legislation) which criminalises ‘public provocation’ of terrorism. But nor does it refer to the countervailing case law of the European Court of Human Rights on freedom of speech, which requires States to allow the free expression of radical political beliefs and allows limits on that expression only where there is a direct incitement to commit violent acts. Nevertheless, the Court’s approach fits squarely into that latter line of case law.

Finally, the Court’s ruling on the consequences of loss of a residence permit are highly relevant, especially in Germany and any other Member States which do indeed make the receipt of benefits, access to employment et al dependent upon holding a residence permit. In effect, the judgment means that for many refugees the loss of a residence permit, even if justified, will have no real impact on their day-to-day life. It will only have an impact as regards journeys within the Schengen area (since holding a residence permit or long-stay visa is a condition of freedom to travel), or travels to non-Schengen and non-EU countries (since the criteria to revoke a residence permit also apply to the travel documents which refugees obtain from their host States in lieu of passports). It would also have an impact upon those refugees who do not yet have family living with them, since the EU’s family reunion Directive requires a third-country national to have a residence permit as a condition for family reunion. But that doesn’t matter to Mr. T, since he is already surrounded by his very large family in Germany.

Jailing migrant families together with convicted criminals: A desperate EU policy to deter irregular migration

ORIGINAL PUBLISHED ON STATEWATCH

by Steve Peers, Professor of Law, University of Essex: (23.6.15)

This week’s European Council (Summit) meeting is due to discuss the issues of immigration, in light of the recent high loss of life of Mediterranean migrants. The draft Summit Conclusions call for most Member States to participate in “relocating 40,000 people in clear need of temporary protection” from Greece and Italy, as proposed by the Commission. If agreed, this would be a significant change in traditional EU policy – although the details of relocation have yet to be worked out, and the Commission proposal did not use the phrase ‘temporary protection’. All Member States would also agree to sign up to resettle 20,000 refugees directly from regions of origin over two years. Even the UK has volunteered to participate it in this, recently offering to take a few hundred more people from Syria.

Yet in conjunction with this policy the EU intends to harden its policy towards irregular migrants, ie those non-EU citizens who have not applied for asylum or whose applications have failed. The draft summit conclusions endorse a strategy of encouraging more non-EU countries in Africa to take their citizens back, by offering them further incentives to do so. But furthermore, the EU intends to put greater pressure on the migrants themselves to leave. The Summit Conclusions refer to a letter to Interior Ministers from the EU Home Affairs Commissioner Avramopolous, who suggests a number of actions to this end.

The letter calls for a widespread use of detention of irregular migrants, for up to 18 months. In particular it calls for use of an obscure clause allowing for exceptions to the normal EU standards for detention of irregular migrants. This means that three usual protections will no longer apply:

– detention of irregular migrants in separate facilities from ordinary prisoners, or at least (if they are detained in prisons) separately from the prisoners within them;
– detention of families separately; and
– frequent judicial review of immigration detention.

Steve Peers comments:

Taken together, the loss of these protections will mean that irregular migrants, including irregular migrant families, will not only be detained in ordinary prisons, but mixed in with the ordinary prison population of convicted criminals and those awaiting trial for serious crimes. Moreover, their capacity to challenge their detention by means of judiicial review will be severely curtailed.

Coupled with the recent Commission paper offering guidelines for using force, including against pregnant women, on migrants who refuse to be fingerprinted, this represents a significant turn in EU policy – turning toward direct and indirect threats of physical violence to control their behaviour and induce them to leave.

To say the least, this is hard to square with the EU’s frequent professions of support for the human rights and decent treatment of migrants.”

Sources

1. Draft European Council conclusions

2. Letter from Commissioner Avramopolous to Ministers with Annex (Statewatch version, 75KB) orlink to Council’s 10.5 MB version

3. Coercive measures or expulsion: Fingerprinting migrants (pdf)

See also: Statewatch Special Report: “War” to be declared on migrants

 

ZUCHTVIEH-EXPORT GMBH V STADT KEMPTEN: THE EXTRATERRITORIAL REACH OF EU ANIMAL WELFARE RULES

ORIGINAL PUBLISHED ON EU LAW BLOG
June 18, 2015

by J.LAURENCE

In an interesting judgment, the CJEU has ruled that Regulation 1/2005 on the protection of animals during transport applies outside of EU borders to transport taking place in third states, if that transport began on EU territory. This is a novel ruling that is expected to have important positive impacts on animal welfare. However, it can also be seen as an example of the CJEU’s tendency in recent years to read the EU’s jurisdiction expansively, stretching traditional international law notions of ‘territorial jurisdiction’ to permit the regulation of conduct taking place in third states.

 

Facts and Judgment

The case at hand concerns the refusal of Stadt Kempten, a municipality in Bavaria (Germany), to issue an export permit to animal transport company Zuchtvieh-Export. In 2012, Zuchtvieh-Export planned to transport 62 cattle from Kempten to Andijan (Uzbekistan), a journey of some 7000 km. The trip would take approximately 9 days, during which time only two 24-hour long rest stops were planned. During these rest stops, the cattle would be fed and watered, but not unloaded. Stadt Kempten refused customs clearance for the cattle because this schedule was not in accordance with the provisions of Regulation 1/2005, which sets EU standards for animal welfare during transport.

Zuchtvieh-Export objected to this decision, and filed a claim at the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court, Bavaria). During its proceedings, that court asked the CJEU for a preliminary ruling on the question whether, with respect to animal transport involving a long journey that begins in the EU but ends far outside of its borders, Regulation 1/2005 applies only to the portion of the transport taking place within the EU, or also to those parts of the transport taking place outside of EU territory.

The CJEU came down firmly on the side of extraterritorial application, stating unambiguously that Regulation 1/2005 “does not subject the transport of animals with a point of departure within the territory of the European Union and a destination in a third country to any particular approval scheme, different from that applicable to transport taking place within the European Union” (para. 47). The only nod the Court makes to the limits of EU authority is the following:

“Should it nevertheless be the case that the law or administrative practice of a third country through which the transport will transit verifiably and definitely precludes full compliance with the technical rules of [Regulation 1/2005], the margin of discretion conferred on the competent authority of the place of departure empowers it to accept realistic planning for transport which, in the light inter alia of the means of transport used and the journey arrangements made, indicates that the planned transport will safeguard the welfare of the animals at a level equivalent to those technical rules.” (para. 54)

In finding that Regulation 1/2005 also applies to those parts of animal transport taking place outside of the EU, the Court went against the opinion of Advocate General Bot. The AG was indeed of the opinion that the scope of the Regulation was limited to the EU, and that applying it to transport outside of EU borders would essentially deputize the authorities of other countries, requiring them to “check to ensure compliance with the rules laid down by the regulation” (AG’s opinion, para. 54). As Advocate General Bot pointed out, this would be inconsistent with the rules regarding the transport of animals into the EU, according to which transit companies must meet EU animal welfare standards only once they enter EU territory (AG’s opinion, para. 82).

Comment

It is particularly interesting to see Zuchtvieh in light of the Court’s other recent case law on the extraterritorial application of EU rules. Traditionally speaking, international law frowns upon extraterritorial regulation, instead deferring to state sovereignty and its corollary, the principle of non-interference in the affairs of other states. Extraterritorial rules are thus only permissible where there is a solid jurisdictional reason for enacting them (for example, because the actors involved are nationals, or the behaviour abroad has domestic territorial effects). In recent years, however, the CJEU has seemed quite willing to use the ambiguity inherent in these jurisdictional terms to permit the application of EU rules that have legislative effects in third states. It has justified the application of such rules outside its borders using what Joanne Scott has helpfully termed “territorial extension”: the practice of using a (potentially quite limited) territorial connection with the EU to justify the regulation of conduct taking place in third states.

In the Air Transport Association case, for example, an association of American air transport companies challenged the EU’s decision to apply its carbon emissions trading scheme to emissions by non-EU planes that took place outside European territory, if those flights landed in the EU. The CJEU found that this was permissible, and should not be seen as violating the prohibition of extraterritorial regulation under customary international law. (ATA para. 157). In the Court’s view, the emissions trading scheme was not ‘extraterritorial’, because it was applied only at airports within EU jurisdiction—regardless of any effects on extraterritorial behaviour. For other examples of broad readings of regulatory jurisdiction by the CJEU, one might look to earlier cases such as Minin, Poulsen, and Ebony Maritime.

Similarly, in Zuchtvieh, the CJEU found that there was no extraterritorial regulation because the permit for transporting the animals in question was issued within the EU. While Advocate General Bot expressed his concern regarding the effects such an interpretation would have on the conduct of transporters and customs officials in third states, the CJEU clearly did not find these issues relevant to its determination.

The Zuchtvieh ruling is expected to have positive effects on animal welfare, improving conditions for the millions of animals transported from the EU to third states every year. In addition to these concrete effects, however, the judgment also demonstrates the increasing tendency of the CJEU to expand the permissible reach of EU legislation to conduct taking place on third state territory.

It remains to be seen whether this trend will continue, and at what point the CJEU will consider that the extraterritorial reach of EU law has reached its limit. One may indeed question the impact of this case on the so-called ‘external dimension’ of EU law, which is one of the key concerns nowadays for EU policy-makers. Is the EU entitled to export its rules/values/fundamental rights standards to other countries? At what point does ‘territorial extension’ become an illegal or illegitimate exercise of EU authority? EU ‘territorial extension’ definitely encounters quite some resistance from the international community. Despite the CJEU’s approval of the emissions trading scheme in Air Transport Association, for example, international backlash against the rule was so strong that the EU agreed to suspend its operation so long as international negotiations on a more global rule were underway. Alhough Zuchtvieh has thus far not generated a similar protest, it does change the standard international legal conversation about jurisdiction, pushing an expanded understanding of who can and should regulate the behaviour of cross-border economic activities.

– See more at: http://europeanlawblog.eu/?p=2793#sthash.LpI7T1bP.dpuf

DELFI V ESTONIA: CURTAILING ONLINE FREEDOM OF EXPRESSION?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Lorna Woods, Professor of Media Law, University of Essex

When can freedom of expression online be curtailed? The recent judgment of the Grand Chamber of the European Court of Human Rights in Delfi v. Estonia has addressed this issue, in the particular context of comments made upon a news article. This ruling raises interesting questions of both human rights and EU law, and I will examine both in turn.

The Facts

Delfi is one of the largest news portals in Estonia. Readers may comment on the news story, although Delfi has a policy to limit unlawful content, and operates a filter as well as a notice and take down system. Delfi ran a story concerning ice bridges, accepted as well-balanced, which generated an above average number of responses. Some of these contained offensive material, including threats directed against an individual known as L.

Some weeks later L requested that some 20 comments be deleted and damages be paid. Delfi removed the offending comments the same day, but refused to pay damages. The matter then went to court and eventually L was awarded damages, though of a substantially smaller amount than L originally claimed. Delfi’s claim to be a neutral intermediary and therefore immune from liability under the EU’s e-Commerce Directiveregime was rejected. The news organisation brought the matter to the European Court of Human Rights and lost the case in a unanimous chamber decision. It then brought the matter before the Grand Chamber.

The Grand Chamber Decision Continue reading “DELFI V ESTONIA: CURTAILING ONLINE FREEDOM OF EXPRESSION?”

Privacy and Data Protection Implications of the Civil Use of Drones

IN DEPTH ANALYSIS FOR THE EP CIVIL LIBERTIES COMMITTEE (LIBE)

by Ottavio MARZOCCHI  (Policy Department  C: Citizens’ Rights and  Constitutional  Affairs European  Parliament )

EXECUTIVE SUMMARY

Drones (also called RPAS, Remotely Piloted Aircraft Systems, or UAV, unmanned aerial vehicles)  are  aircraft   without  a  human  pilot on board,  which are  guided  by a  remote pilot.
Drones have been developed for military use but are now increasingly used for civil purposes. Currently drones are employed for critical infrastructure and civil protection, disaster management and search and rescue, environmental protection, law enforcement and surveillance, journalism, commercial activities and leisure, while it is foreseen that in the future they will also be employed for other missions, such as agriculture, energy, transport  of goods  and  cargo  – and  even  of people.

States plan to increase their use of drones, while industry, small and medium enterprises and private companies have a growing interest in the manufacturing, selling and use of drones to monitor their activities or provide goods and services to clients. Being currently available on the market at affordable prices, their use by private individuals has  increased   exponentially.

The current and prospective development of drones has a series of positive impacts, notably for employment, SMEs and industrial development, and has a potential to generate growth and jobs. Drones can carry out operations in emergency situations, where human intervention is either impossible or difficult (drones could help save lives in operations of humanitarian relief, search and rescue at sea, when nuclear accidents or natural  disasters  occur,  etc).
As with any technology, there are also risks to be taken into serious account by stakeholders, regulators, institutions and citizens in order to prevent, minimize and counter the potential negative impacts of some applications of drone technology. This is especially the case in the absence of proper regulation or/and when drones are used in illegal,  unsafe or irresponsible  ways.

In terms of risks for privacy and data protection, drones normally carry video-cameras to allow pilots to fly them. These images can be easily recorded and stored, and are often uploaded onto the internet. The privacy of private life and property can be interfered with and violated when drones capture images of people in their houses or gardens. A series of other applications and payloads can also be installed on drones, allowing the gathering and processing of personal data and seriously interfering with and potentially violating citizens’ rights to privacy and data  protection1.

In terms of security and safety, drones pose a series of considerable and serious risks. As reported by the media, drones have been spotted over airports or close to them, disrupting or/and threatening civil aviation; have crashed on the ground; have been flown over critical infrastructure, embassies or tourist attractions; have injured people. The prospective increase in the number of drones flying at different heights (including in the space currently reserved for civil aviation), in different directions (drones normally change    direction    multiple    times,    on    the    basis    of    pilots’    orders)    and    areas,    with    different weights and speeds, over people and private properties, poses serious challenges. The technological environment to ensure the secure and safe integration of drones in the civil aviation system does not yet seem ripe, as communications can be easily lost or hijacked, the detect and avoid systems are not by default installed on drones and systems to block their access into no-fly zones (geo-fencing) are not in place. Responsibility and liability for drones’ use is not yet guaranteed, as identification of the owners or pilots is not required in most EU MS, making transparency or law enforcement action almost impossible.

Potentially, the positive applications of drones (e.g. for fire-fighting; or nuclear plan inspection) can be nullified by negative applications (e.g. private drones flying around and impeding quick fire-fighter intervention, as happened in Norway; or private drones flying over the nuclear power plant, or even crashing on it). These elements show that drones pose a series of challenges and concrete risks for safety, security and the fundamental rights of persons, which are to be addressed seriously.

The exponential development and spread of drones challenges policy makers to regulate them and their use by balancing the will to support drones’ positive potential for the economy while preventing, minimizing and countering the negative impacts and the risks illustrated above. A series of initiatives at international, European and national level are currently underway to respond to this challenge.

The European Commission has worked in recent years to promote RPAS integration into the European civil aviation airspace (“non-segregated air traffic management environments”). The next steps in the process will be the development of safety rules by EASA during 2015. Based on this, the Commission will issue a package containing a revision of the basic European Civil Aviation Safety Regulation (currently under impact assessment) possibly in 2015 to allow the integration of drones from 2016 onwards.

The Commission has identified priority areas where the EU could play a leading or coordinating role, notably by developing a regulatory framework to guarantee safety; fostering enabling technologies; security; protecting citizens’ fundamental rights (privacy and data protection); guaranteeing third party liability and insurance; supporting market development and emergence and promoting the European RPAS industry and its competitiveness. EASA and the Council, as well as MS regulations, seem to go broadly in the same direction.

This research finds that:

  • In order to ensure that the EU can regulate drones regardless of their weight, it is necessary to modify EC Regulation 216/2008 and notably its Annex 2, which currently limits the scope of EU action to RPAS weighting more than 150 kg. Once this has been done, the current regulations and laws adopted at national level will have to be modified on the basis of the future EU regulatory regime, which might be based on a new “proportionate to the risk” approach;

. Notwithstanding the fact that interferences to privacy and data protection can be particularly serious when drones are used to collect personal data for law enforcement purposes and surveillance activities, EU data protection law does not currently cover this area (except when such data is exchanged amongst Member States). Activities by private individuals are excluded from the application of the DP Directive due to the “household” exception, but it seems likely that the capturing and processing of personal data carried out by drones in public spaces could be subject to EU data protection law, following the ECJ jurisprudence on CCTV. In these areas, it is primarily for Member States to ensure that privacy and data protection guarantees apply; looking forward, the approval of the Data Protection Regulation and Directive will bring a positive contribution in terms of impact assessments, privacy by design and privacy  by default,  as  these  will  become mandatory;

Citizens’ right to security and safety of citizens does not seem to be fully guaranteed across the EU and by all MS in relation to drones and their use, while enabling technologies are still in development; law enforcement action is virtually impossible as rules on identification of drones and of their operations, responsibility and liability are not  yet  in  place everywhere;

The whole “drones’ chain” should be more closely examined in terms of current and future EU and/or MS regulation needed to minimize or counter risks for citizens and to their rights, from manufacturing and trade (production, selling, buying, internal and international trade, notice for buyers on risks and hazards and applicable rules or legislation for flying drones), to safety (airworthiness, pilot licences, operation authorisation, identification and monitoring of drones and of their flights, establishment of no-fly zones such as critical infrastructures, airports, cities and villages, gatherings, rules that should be followed when operating a drone, for instance visual line of sight, private properties, etc), privacy and data protection rules, as well as laws related to criminal behaviour, intellectual property, aviation, environmental law that are to be respected by drones, security (regulations and measures to ensure that law enforcement action against illegal and unsafe use of drones is possible, responsibility and liability for damage to persons or property as a result of an incident caused by an RPA).

The debate on the future regulatory regime for drones, which has been mainly carried out up to now between industry, stakeholders, technical regulators and working groups (be it at the national, European and international level), should involve more closely both citizens and legislators. Consultations on future options should be carried out, so to take into account citizens’ views and concerns, while legislators should be the ones to take decisions on regulation, given the risks posed by drones. This is the only way to ensure that “public acceptance” of, or “societal concerns” in relation to, drones are addressed and resolved, though the open and democratic debate and  scrutiny.

In order to achieve these objectives at the EU level and ensure a more transparent and democratic debate on the future policy on drones, the EP could ask the Commission report in detail and in straightforward terms, for instance in its upcoming impact assessment, about which actions it plans to undertake in the “drones’ chain” to ensure that the objectives of safety, security, respect of fundamental rights, namely privacy and data protection, environment, responsibility and liability, law enforcement action, insurance, identification and transparency, technological development, can be achieved, with recommendations for MS and/or EU action, and possible options. A description of the regulatory approaches in MS should also be provided, so to allow a comparison and to identify best practices. It should also report about the past, present and future use of EU funds for drones development, and on how funds for civilian uses and military/defence uses of drones interact. A yearly reporting mechanism would also be useful, and could also address the causes and possible remedies to deal with drones’ incidents.

1 For instance: high power zoom, facial recognition, behaviour profiling, movement detection, number plate recognition, thermal sensors, night vision, radar, see-through imaging, Wi-fi sensors, microphones and audio-recording systems, biometric sensors to process biometric data, GPS systems processing the location of the persons filmed, systems to read IP addresses and track RFID devices, systems to intercept electronic communications.

CONTINUE READING THE FULL REPORT HERE