Supreme allies: Top national courts and the implementation of EU law

ORIGINAL PUBLISHED ON “DESPITE OUR DIFFERENCES”

by Daniel Sarmiento, (*)

In a short time-frame, two high courts of two Member States, the French Cour de Cassation and the Spanish Tribunal Constitucional, have delivered two important judgments on the implementation of EU Law by lawyers and domestic courts. The two decisions touch different subject-matters and deal with different claims, but they are equally relevant for what they represent for the correct implementation of EU Law. As I said a few weeks ago in a previous post, national high courts are becoming key players in EU Law, and the Court of Justice should cherish and look after this highly valuable ally.

Last May, the French Cour de Cassation ruled in favor of a former worker who had sued his lawyer for not making a proper defense of his client (see the judgment here). The lawyer did not invoke the Court of Justice’s case-law stated in the well-known cases of Mangold, Kücükdeveci, Petersen, etc., on discrimination on the grounds of age. As a result of it, the worker lost his case against his former employer. The Cour de Cassation stated that the claimant’s chances of success in case of having invoked the Court of Justice’s case-law were up to 80%. Therefore, the certainty of the loss suffered entitled the claimant to successfully claim damages from his lawyer.

Yesterday, the Spanish Constitutional Court, in plenary formation, ruled in favour of another worker whose claim based on EU Law was plainly ignored by the High Court of Madrid (see the judgment here). Following the Court of Justice’s case-law in the cases of Gavieiro Gavieiro, Lorenzo Martínez and others, which solved a series of cases identical to the one of the claimant, it was obvious that this case-law applied and solved the case. However, the High Court of Madrid ignored this and dismissed the claimant’s appeal.

The Spanish Constitutional Court has now stated that any jurisdiction in Spain that ignores a judgment of the Court of Justice is breaching the fundamental right to a fair trial, as provided by article 24 of the Spanish Constitution. This gives any claimant in such circumstances the chance of invoking another ground of appeal, and, above all, the use of the special procedure for the protection of fundamental rights before the Constitutional Court (recurso de amparo).

These two judgments impose considerable responsibilities on lawyers and judges. The French decision sets a high standard of professional expertise on practitioners, especially on those who are highly qualified and (as in the case of France) allowed to plead before the highest courts of the country. The Spanish judgment is a nice reminder for all courts in Spain that the case-law of the Court of Justice is binding in the strongest possible way, and therefore binding for all courts. Both cases have in common a total absence of reference to EU Law, by the lawyer in his submissions in one case, and by a court in its judgment in another.

Therefore, the sum of both decisions is not revolutionary, because it is obvious that a total lack of reference to the applicable law, whether it is national or EU Law, raises serious issues about the decision at stake. However, it is important that the highest courts of Member States are assuming the task of ensuring the correct application of EU Law. This is of course a matter for the Court of Justice, but also for its domestic counterparts too. And it is nice to see that these cases have been solved without the need to make a preliminary reference to the Court of Justice. High courts know what their role is and how it must be put into practice under national law. Now it is time for lawyers and for the remaining domestic courts to act accordingly.

*Professor of EU Law at the University Complutense of Madrid

The EU or the Commonwealth: a dilemma for the UK – or a false choice?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS on Sunday, 29 November 2015

by Steve Peers

The United Kingdom has its finger in many pies: the EU, NATO, the United Nations Security Council and the Commonwealth, to name just a few. Of these, the Commonwealth – which has just finished its latest summit meeting – obviously has the closest specific link to British culture and history, since it’s mainly comprised of our former colonies. (A few Commonwealth members are not former colonies, and some obscure ex-colonies like the USA chose not to join. For a full list of members, see here).

Like many British citizens, I have friends and relatives in many Commonwealth countries: Canada, India, New Zealand, Australia, Singapore and South Africa. But I also have friends in the rest of the EU, as well as a professional interest in EU law. There’s no incompatibility between the two at a personal level: we can all enjoy poutine as well as paella, or watch Antonio Banderas one day and Hugh Jackman the next. But is the same true of the UK’s trade relationships?

When the UK joined the EU over forty years ago, it sundered special trade links which it had with most of the Commonwealth, and replaced them with trade links with the EU (as it’s called now). One of the arguments sometimes invoked in favour of the UK leaving the EU in the forthcoming referendum on membership is that the UK could reverse this process, reviving its Commonwealth trade.

But a lot has changed in forty years. In my view, what’s true for individuals is also true for the country as a whole: the UK does not have to choose between trade with the Commonwealth and trade with the EU, but can (and increasingly does) have both. This blog post explains why. (I’ll write another post on the issue of the EU’s trade with non-Commonwealth countries in future).

Background

Back in 1973, the UK had to end special trade ties with the Commonwealth because the EU is a customs union, which (according to the definition set out in international law) means that it has common trade rules with the rest of the world. The EU has power to sign certain types of trade deals, instead of its Member States (although in practice those deals are usually subject to Member States’ unanimous consent). But the EU’s powers don’t extend to all types of ‘trade deals’, as that phrase is used by non-specialists. Those powers apply to the imposition of taxes at the border (known as tariffs) or other economic regulation of trade between countries, but not to commercial agreements with other countries to buy British goods. So, for instance, the UK and India were free to conclude £9 billion worth of trade deals of that broader type during the recent visit of the Indian Prime Minister.

It’s sometimes argued that trade deals are irrelevant, because ‘governments don’t trade, businesses do’. While it’s true to say that much trade takes place on the basis of contracts between companies, governments still play a large role – either as purchasers of many goods and services, or as regulators with the power to impose tariffs or regulation which might reduce the volume of trade.

When the UK joined the EU, the EU was mainly only interested in special trade deals with nearby countries (although this included the Commonwealth countries of Cyprus and Malta). Mostly the EU then preferred to trade with third countries on the basis of multilateral rules instead. However, the EU did extend its existing special trade agreement for former sub-Saharan African, Caribbean and Pacific (ACP) colonies of France and Belgium to most of the former colonies of the UK in those parts of the world. But it did not extend any special treatment to richer Commonwealth countries, like Canada and Australia, or Commonwealth states in Asia, like India or Malaysia.

But times have changed. In recent years, the EU has become more interested in negotiating bilateral trade agreements with many countries, and not relying so much on the multilateral trade system established by the World Trade Organisation (WTO). This has transformed the EU’s trade relationship with Commonwealth countries (along with many other states).

EU/Commonwealth trade today

The result of this change in policy is that the EU has agreed free trade agreements (FTAs), or is in the process of negotiating free trade agreements, with the vast majority of Commonwealth states – a full 90% of the 50 Commonwealth countries that are not in the EU. This includes the six Commonwealth states that accounted (in 2011) for 84% of Commonwealth trade – and many more besides.

More precisely, there are already FTAs in force between the EU and 18 of those 50 Commonwealth states (36% of the remaining Commonwealth). The EU has agreed FTAs with 14 of those countries (28%), subject only to completing the ratification process. It is negotiating or about to start negotiating FTAs with 13 states (26%). That leaves only 5 Commonwealth states (10% of the non-EU total) that the EU is not planning FTA talks with. (For full details of the status of EU trade relations with each of the countries concerned, with links to further information, see the annex to this blog post).

Of course, the Commonwealth includes many different types of economy, but the EU has agreed FTAs with two of the wealthiest Commonwealth states (Canada and Singapore), and has recently committed to talks with two more (Australia and New Zealand). It also has deals or is negotiating with most of the larger developing Commonwealth members (India, Nigeria, South Africa and Malaysia).

It’s sometimes suggested that the EU’s trade deals with other countries don’t benefit the UK. But the UK’s exports to Commonwealth countries have beenincreasing at over 10% a year – with increases (over two years) of 33% to India, 31% to South Africa, 30% to Australia and 18% to Canada. In fact, since 2004, Britishexports to India are up 143%. Needless to say, this increase in trade with the Commonwealth (while an EU member) must have created or maintained many British jobs.

Criticisms of the EU’s trade policy

The EU’s trade policy is often criticised on three particular grounds. While there may be some force to these arguments, the issue in the upcoming referendum is whether these problems would actually be solved by the UK leaving the EU.

First of all, it’s often argued that EU trade agreements are not fair for developing countries. In fact, the EU’s negotiation of FTAs with developing Commonwealth countries in the last decade is in part due to WTO rulings that the EU could not just sign one-way trade deals, liberalising only access to EU markets; such treaties have to liberalise trade on both sides (the EU had resisted this). The EU does offer less generous unilateral trade preferences as an alternative to two-way deals (and some Commonwealth states, like Bangladesh, prefer this).

If the UK left the EU, it could decide not to sign trade deals with some of the developing Commonwealth countries that the EU has signed deals with. It could also offer a more generous version of unilateral trade preferences. However, the UK would not be free to sign deals for one-way trade liberalisation, since it would be bound by the same WTO rules on trade agreements that the EU breached when it signed those deals. Moreover, while not replacing the EU’s trade deals would arguably help the poorest countries’ economies, UK exports to those States would logically be lower.

The second argument is that the EU’s trade deals are a problem for the environment and public services, and give industry overly generous intellectual property protection, with the result (for instance) that prices of basic medicines rise due to extended patent protection. But this argument is equally made against many trade deals that the EU is not a party to at all – such as the recent Trans-Pacific Partnership agreement.

So, while (stepping outside the Commonwealth for a moment) the planned EU/US trade agreement, known as TTIP, has attracted critics concerned about its effect upon the UK’s health care (among many other things), those issues would not magically go away if the UK, having left the EU, sought to negotiate its own trade agreement with the USA instead. The controversial parts of the draft deal are surely attractive to the US side as well as the EU side; it’s not as if the EU is in a position to issue non-negotiable demands to desperate, poverty-stricken Americans.

The third argument is that the EU is not sufficiently interested in pursuing trade deals. As the facts discussed above show, it’s quite false to suggest that the EU is not interested in trade deals with Commonwealth countries, or that the UK’s EU membership makes it impossible for British businesses to increase their exports to those countries. But could it be argued that the UK alone would do a better job of negotiating such trade deals, and negotiating them more quickly, after Brexit?

It’s true that it often takes years to negotiate EU trade agreements, and that some negotiations stall or slow down to a snail’s pace (with India, for instance). But this is not unique to the EU. Over twenty years ago, for instance, the Clinton administration developed a plan for a ‘Free Trade Area of the Americas’ – but it has never come to full fruition, and talks eventually fizzled out. There’s no guarantee that the UK alone would be able to reach agreements more quickly than the EU as a whole.

In any event, as noted above, the EU already has agreed trade deals with 64% of Commonwealth countries, and is negotiating with another 26%. Some of the latter negotiations are likely to be completed by the time that Brexit took place – since that would probably happen two years after the referendum date, so likely in 2018 or 2019 (for more discussion of the process of withdrawal from the EU, see here).

So the UK would have to ask perhaps three-quarters of its Commonwealth partners for trade deals to replace those already agreed with the EU. They might agree quickly to extend to the UK a parallel version of their existing arrangement with the EU, since that would not really change the status quo. But they might not be interested in negotiating any further trade liberalisation. If they are interested, they will ask for concessions in return, and this will take time to negotiate.

For the remaining one-quarter or so of states, the UK will have to start negotiations from scratch, in some cases having to catch up with EU negotiations that are already underway. And there is no guarantee that these other states will want to discuss FTAs, or that negotiations would be successful.

Overall then, there’s no certainty that UK exports to the Commonwealth would gain from Brexit. They might even drop, if some Commonwealth countries aren’t interested in replicating the EU’s trade agreements. Alternatively, they might increase – but it’s hard to see how any gain in British exports would be enormous, given the existence of so many FTAs between the EU and Commonwealth countries already, and the uncertainty of those states’ willingness to renegotiate those deals.

Could this very hypothetical increase in exports to the Commonwealth make up for any loss in UK exports to the EU following Brexit? Obviously, this assessment depends on how Brexit would affect UK/EU trade relations. That’s a hugely complex subject, which I will return to another day, but suffice it to say that while I think a UK/EU trade deal after Brexit is likely, it’s far from guaranteed. And it’s hugely unlikely that any such trade deal would retain 100% of the UK’s access to the EU market. There are many reasons to doubt this could happen, but first and foremost: why would the EU send the signal that a Member State could leave the EU but retain all of its trade access? If it did that, the EU would be signing its own death warrant.

The key fact to keep in mind here is that the UK’s trade with the Commonwealth isless than one-quarter of its trade with the EU. So to make up for even a 10% drop in exports to the EU, the UK would have to increase exports to the Commonwealth by more than 40%. How likely is that, when the vast majority of trade between the EU and the Commonwealth would already be covered by FTAs at that point?

Taken as a whole then, it’s clear that the UK can remain a member of the EU andtrade with the Commonwealth – and that this trade will only increase in future as more EU FTAs with Commonwealth states come into force or are negotiated. Leaving the EU, on the other hand, is liable to lead to reduction in trade with the remaining EU without any plausible likelihood that trade with the Commonwealth would increase by anything near the level necessary to compensate.

Annex

Canada: FTA agreed. It must still undergo the formal ratification process.

Australia: FTA negotiations start soon

New Zealand: FTA negotiations start soon

South Africa: FTA in force

India: FTA under negotiation

Singapore: FTA agreed. It must still undergo the formal ratification process.

Malaysia: FTA under negotiation

Pakistan, Bangladesh, Sri Lanka, Maldives: No plans for FTA

12 Caribbean Commonwealth states: FTA in force between EU and 15 countries including Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Vincent and the Grenadines, Saint Lucia, Saint Kitts and Nevis and Trinidad and Tobago

Brunei: No plans for FTA

2 Pacific Commonwealth states: FTA in force with Papua New Guinea and Fiji

7 more Pacific Commonwealth states: FTA under negotiation between EU and 12 more countries including Kiribati, Nauru, Samoa, the Solomon Islands, Tonga, Tuvalu and Vanuatu

3 West African Commonwealth states: FTA agreed with 16 West African countries including Nigeria, Ghana and Sierra Leone. It must still undergo the formal ratification process. (Note that Gambia left the Commonwealth in 2013; but it is also part of this agreement).

Cameroon: FTA in force

4 East African Commonwealth states: FTA agreed with 5 East African countries including Kenya, Tanzania, Uganda and Rwanda. It must still undergo the formal ratification process.

2 Southern and Eastern African Commonwealth states: FTA in force with 4 Southern and Eastern African countries including Mauritius and Seychelles (and also Zimbabwe, a former Commonwealth country).

2 other Southern and Eastern African Commonwealth states: FTA under negotiation with 7 more Southern and Eastern African countries including Malawi and Zambia.

5 Southern African Commonwealth states: FTA agreed with Botswana, Lesotho, Namibia, Swaziland and Mozambique. It must still undergo the formal ratification process.

Schengen, un coupable idéal ?

ORIGINAL PUBLISHED ON CDRE SITE (25 NOVEMBRE 2015)

par Henri Labayle, 

Les réalisations européennes servent de bouc émissaire aux crises nationales. Ce n’est pas chose nouvelle. Après l’Euro, l’espace « Schengen » de l’Union est aujourd’hui sur la sellette. Les attentats terroristes lui auraient donné le coup de grâce, après ceux de la crise des migrants. Est-ce bien réaliste, est-ce vraiment opportun ?

Les discours officiels relèvent ici de la vieille fable de la paille et de la poutre. C’est aux Etats membres eux-mêmes que le conseil du ministre de l’Intérieur français de « se reprendre » devrait être donné tant la construction de Schengen est dépendante de leur volonté. Néanmoins, le réalisme interdit l’optimisme. Ayant perdu de vue ses caractéristiques initiales, Schengen n’échappera pas à une remise en question profonde.
Le fabuleux destin de l’espace Schengen, sa « success story », enregistrent incontestablement au coup d’arrêt, dont il conviendra de mesurer l’impact réel. Il y a des explications à cela.

1. Une construction datée

Les principes de Schengen sont inscrits désormais dans les traités : abolition des contrôles aux frontières intérieures, reportés là où l’espace commun est en contact avec les pays tiers. Sont-ils toujours à la hauteur des défis ? Répondent-ils à la menace terroriste comme à la pression migratoire ? A trop raisonner à logiciel constant, on peut en douter.

Le contexte de la création de Schengen, en 1985, a été oublié. Fruit d’un accord bilatéral franco-allemand, rejoint par les Etats du Bénélux, Schengen s’inscrivait dans un paysage aujourd’hui disparu : peu de participants, ensemble homogène animé des mêmes buts. Au point d’être scellé dans une convention d’application dont la date n’est pas indifférente : 1990, au lendemain de la chute du mur de Berlin …

En attendre une réponse efficace à des défis qui n’existaient pas lors de sa conception est un peu simpliste.
Que Schengen n’ait pas été à même, en 2015, d’arrêter les flots de réfugiés remontant le ventre mou du couloir des Balkans s’explique : il a été conçu en 1990 dans la logique d’un continent fermé, d’une Europe coupée en deux par le rideau de fer, ignorant les 7700 kilomètres de frontières terrestres devenues les siennes aujourd’hui. Figée dans une problématique Nord/Sud, l’Europe de l’époque n’avait aucune idée de la dimension Est/Ouest qui s’y est surajoutée.
Le contexte géopolitique de l’époque le confirme. L’environnement de Schengen était fait de l’Union soviétique de Gromyko au Maroc d’Hassan II en passant par la Tunisie de Ben Ali et la Libye de Kadhafi, sans parler de la Syrie ou de la Yougoslavie de Tito. Les dictateurs qui l’entouraient étaient ses meilleurs garde-frontières et la vague migratoire de 2015 inimaginable …

L’argument vaut aussi en matière terroriste. Oubli ou mauvaise foi des partisans d’un retour aux frontières nationales, celles-ci font obstacle à la lutte anti-terroriste. D’ETA réfugié en France à l’IRA en République d’Irlande ou à la bande à Baader en France, les exemples ne manquent pas. Leur maîtrise nationale empêcha-t-elle la vague d’attentats des années 80 en France ? Evidemment non.
Pour autant, « l’obsession » de la frontière justement décrite par Michel Foucher n’a pas disparu. En fait, Schengen se borne à déplacer le lieu où la frontière joue toujours son rôle de barrière, de protection. Il est un compromis entre l’ouverture d’un continent, notamment pour des besoins économiques, et sa fermeture, pour des raisons sécuritaires.

La crise de 2015 met ouvertement en question l’équilibre de ce compromis, sa capacité à assumer la fonction sécuritaire de la frontière commune. Les Etats, en trente ans, l’ont construit et maintenu envers toute logique, d’où leur responsabilité centrale.

2. Des compromis boiteux

Habillé d’un prétexte sécuritaire, ce que l’on appelait à l’époque le « déficit sécuritaire », Schengen répondait en fait à une autre réalité : celle du besoin économique d’un continent asphyxié, cloisonné en Etats aussi nombreux que petits. Le marché intérieur, lancé exactement à la même période, ne pouvait s’en satisfaire.
Le détour par la case « sécurité » dissimule à peine cette vérité. Ouvrir l’espace intérieur était d’abord un impératif économique, satisfaisant les opérateurs mais plus facile à assumer en mettant en avant la lutte contre l’immigration ou le crime. La réinstauration des contrôles provoquée par la crise des attentats de Paris confirme l’impact économique de cette ouverture : retards dans les aéroports, kilomètres de bouchons sur les autoroutes aux passages frontaliers avec l’Espagne ou l’Italie… Le compromis entre mobilité et sécurité, pourtant exclusivement au cœur du projet initial Schengen, s’est réalisé au détriment de la seconde. Quitte à ignorer les aspirations des citoyens européens.
D’autant que, dans sa quête de points d’appui, la construction européenne s’est emparée de Schengen pour en faire un symbole. Curieux retournement des choses, Schengen vilipendé lors de sa création, stigmatisé parce que qualifié de « liberticide » et que « l’Europe des polices » était alors un gros mot, fut ensuite présenté comme l’acquis principal de la liberté des citoyens européens. Avant aujourd’hui d’être à nouveau accusé de tous les maux d’une intégration européenne qu’il ne réalise pourtant pas.

La vérité se cache ailleurs. A force de non-dits et de compromis étatiques, la démarche sécuritaire quasi-exclusive sur laquelle reposait Schengen initialement s’est progressivement banalisée.
Elle imposait le respect d’un certain nombre de principes. Avant toute autre chose, celui de la responsabilité de chaque Etat, garant par son sérieux de la sécurité de tous. D’où le refus initial de l’ouvrir à des partenaires jugés peu fiables, de l’Italie à la péninsule ibérique ou à la Grèce.
La logique communautaire, celle des élargissements, l’a emporté sur ce paramètre. Une prétendue « confiance mutuelle » entre Etats a été vantée dans un univers où la méfiance demeure la règle, peu sensible au credo du monde libéral.

Puisque, depuis des années, la Grèce était une passoire et ne remplissait plus ses obligations, comment s’étonner que le système ait volé en éclat au début de l’été ? Puisque, depuis des années, le système dit de « Dublin » (imaginé à Schengen) ne remplissait pas son office, pourquoi s’étonner de l’abcès de fixation ouvert hier à Sangatte, aujourd’hui à Calais ? Enfin, faute de donner un sens au mot « sanction », pourquoi l’Union européenne ne s’est-elle pas préoccupée d’une réaction vigoureuse, réservant ses foudres aux eaux de baignade et aux aides d’Etat …

Arbitrant au moyen de compromis médiocres, quand il aurait sans doute fallu établir publiquement et respecter des priorités politiques, l’Union s’est donc trouvée démunie lorsque la bise est venue, lorsque les urnes nationales et européennes se sont emplies de votes protestataires. Faisant l’aubaine de partis extrémistes dépourvus de toute réponse réaliste, elle s’est ainsi placée sur la défensive.
L’impasse faite sur la dimension économique du contrôle des frontières illustre cette absence de pilotage. Le mirage des solutions technologiques de demain, les « smarts borders » et la biométrie, ajouté au lobbying des grandes multinationales désireuses d’obtenir les marchés publics y sacrifiant, ne peut dissimuler l’aberration consistant à confier la sécurité de tous à un Etat membre, la Grèce, étranglé financièrement et budgétairement pour les raisons que l’on sait …

S’il est exact que les Etats Unis consacrent 32 milliards de dollars à leur politique migratoire dont la moitié au contrôle des frontières, comment comprendre les 142 millions d’Euros du budget de Frontex ?

Dilué, Schengen a perdu de vue l’originalité de sa charge pour être appréhendé comme une politique ordinaire. Sauf que les Etats membres n’ont en rien abdiqué.

3. Une logique intergouvernementale

Laboratoire de la construction européenne, Schengen demeure une construction aux mains des Etats.
Au prix d’une certaine schizophrénie, les Etats ont en effet prétendu à la fois intégrer leur action mais en conserver la maîtrise. Entre ceux qui voulaient mais ne pouvaient pas en faire partie (la Bulgarie, la Roumanie), ceux qui pouvaient mais ne le voulaient pas (les iles britanniques), ceux qui ne pouvaient pas mais que l’on a voulu (la Suisse, la Norvège, l’Islande) et ceux qui ne pouvaient pas et dont on aurait pas du vouloir (la Grèce), Schengen est devenu un véritable patchwork.

La greffe aurait pu prendre. Elle n’a été qu’imparfaite.
D’abord car la diversité des situations nationales n’a pas disparu. D’une part, les législations et pratiques nationales demeurent suffisamment éloignées pour que l’effet « vases communicants » ne joue pas. Migrants comme criminels ont parfaitement identifié ces points faibles. D’autre part car le degré d’attraction des Etats membres de cet espace ne s’est pas réduit, rendant inutile le souhait de responsabiliser l’ensemble. Convaincus que l’Allemagne et la Suède étaient des eldorados, les demandeurs de refuge n’envisagent pas d’autre destination, pour la plus grande satisfaction des Etats membres qu’ils traversent et qui vont jusqu’à leur faciliter la tâche.

Ensuite, parce que les Etats refusent toujours la contrainte. En indiquant clairement dans son article 4 que « la sécurité nationale relève de la seule souveraineté de chaque Etat membre », le traité sur l’Union fixe une barrière infranchissable.

Les enseignements des commissions d’enquête au lendemain des attentats de Charlie Hebdo le confirment. Le dispositif européen est moins en cause que les conditions de sa mise en œuvre. La faillite de Schengen n’est pas dans la poursuite mais dans la prévention, dans le renseignement en amont des attentats et l’alimentation des outils communs qui n’est pas obligatoire. La qualité remarquable de l’action policière et judiciaire, y compris par delà la frontière franco-belge, ne dissimule la faillite de la prévention politique et policière, des deux cotés de cette frontière.
Comment Mehdi Nemmouche hier, Abaaoud ou les frères Abdeslam cette semaine, ont-ils pu perpétrer leurs crimes sans obstacle réel, échappant aux contrôles Schengen autant que nationaux ? Qui refusait jusqu’au Conseil de vendredi dernier d’inclure les « combattants étrangers » dans le SIS et pourquoi 5 Etats seulement fournissent-ils plus de la moitié des informations sur leurs déplacements au Système d’information d’Europol de l’aveu du coordinateur européen de la lutte contre le terrorisme ?

L’absence de transparence de l’Union ne facilite pas la réponse. La responsabilité des Etats membres est pourtant au cœur de ce fiasco, constat déjà posé après Charlie Hebdo, sans réelle suite.

La France n’y échappe pas, étonne par l’arrogance de notre discours public. Des failles de son contrôle judiciaire aux pannes de son système de fichier Chéops, à sa gestion des documents d’identité, aux  erreurs de ses services de renseignements ou aux moyens alloués et à l’autisme de ses gouvernants qui qualifient de simples « complicités françaises » l’action des terroristes de Paris, elle n’est pas en situation d’administrer les leçons qu’elle prétend donner à la Belgique et à l’Union.

Celle-ci doit pourtant se remettre en question.

Quant au périmètre de son action d’abord. Malgré le politiquement correct, la composition de l’espace commun où contrôles comme échanges de renseignement s’effectuent est une question ouverte. Les Pays Bas, comme d’autres, semblent réfléchir à un redimensionnement effectué soit par un repli, sur un petit nombre de partenaires performants, soit par une mise à l’écart, de membres jugés non fiables.

Quand au fond ensuite. Les principes d’organisation sur lesquels Schengen repose, frontières intérieures/extérieures demeurent aussi pertinents qu’hier. En revanche, ils ne peuvent plus se satisfaire du vide politique actuel. La cohérence exige de percevoir l’asile comme un même devoir, réclame de criminaliser le radicalisme et le terrorisme de façon identique. Ce préalable n’est pas satisfait aujourd’hui dans l’Union. De même que la « solidarité » doit avoir un sens concret pour les Etats membres, ces derniers doivent partager l’accueil des réfugiés et privilégier la coopération et la police judiciaires et la coordination des poursuites à l’action exclusive des services de renseignement. Dans tous les cas, il faut y mettre le prix.

Alors, pourquoi n’entendons nous pas les mots de « parquet européen », « d’équipes communes d’enquête », « d’Eurojust » ? Pourquoi l’essentiel du contingent de la relocalisation est-il encore vacant ? Parce que nous n’osons pas lever le tabou de l’action commune, de la quasi-fédéralisation qu’impliquent le développement des agences se substituant aux Etats défaillants, que nous prétendons que l’administration nationale des politiques européennes est toujours l’alpha et l’oméga de la construction européenne ?

L’hypothèse de l’avancée, même si celle du repli est peu crédible sinon impossible, est donc incertaine. A l’image de celle du projet européen tout entier dont Schengen demeure bien, toujours, un « laboratoire ».

Statewatch leaked document on the state of play of EU Antiterrorism policy (and its perspectives..)

On the Statewatch site is now accessible a very interesting document of the EU Counter terrorism Coordinator in preparation of the Justice and Home affairs Council meeting of December 4, 2015. Without prejudice of the political and legal judgment that anyone can have on the initiatives listed below the text gives a very comprehensive (and relatively objective ) view of the current state of play of the EU initiatives. It remains a mystery why this kind of purely descriptive documents are not directly accessible to the public, to the European and national parliaments.

EDC

DOC14438/15
NOTE From: EU Counter-Terrorism Coordinator To: Delegations
Subject: Report: State of play on implementation of the statement of the Members of the European Council of 12 February 2015 on counter-terrorism

The extraordinary Council (JHA) of 20 November 2015 highlighted the need to accelerate the implementation of all areas covered by the statement on counter-terrorism issued by the Members of the European Council on 12 February 2015 (doc 14406/15). Therefore, in preparation of the Council of 4 December 2015, this paper lists all the measures foreseen in the February 2015 Statement and assesses their implementation. Implementation of the Conclusions of the Council of 20 November 2015 will enhance implementation of the February 2015 statement.

Documents 9422/1/15 and 12318/15 drafted by the EU CTC assessed the state of implementation in June and October 2015. Document 12551/15, drafted by the Presidency and the EU CTC, was endorsed by the Council in October 2015. It suggests five priorities for action by December 2015. Discussion in the extraordinary JHA Council of 20 November (doc 14406/15) and COSI of 16 November 2016 focused on firearms, strengthening external border controls, information sharing and terrorist financing (doc 14122/15).

I. ENSURING THE SECURITY OF CITIZENS

  1. PNR

Following the adoption of the rapporteur’s report by the LIBE Committee on 15 July 2015, four trilogues and three technical meetings have taken place. Important differences of view between the Council and the EP remain, notably on the inclusion of internal flights, the scope (transnational element of serious crime) and the period during which PNR data can be stored in an unmasked manner. Agreement on many other issues is outstanding.

The rapporteur’s ability to broker a deal with the Presidency is hampered by the fact that, except for the EPP shadow rapporteur, his report was not supported by other shadow rapporteurs, but by a heterogeneous majority across party lines. The EP’s commitment in its resolution of 11 February 2015 to work towards passage of a PNR Directive by the end of 2015 has so far not been shared by the shadow rapporteurs (S&D, ALDE, Greens, GUE) who voted against the Kirkhope report.

As long as there is no EU PNR Directive, Member States who do not have national legislation do not have a legal basis to acquire data from carriers. On 20 November 2015, the Council reiterated the urgency and priority to finalise an ambitious EU PNR before the end of 2015.

  1. Information sharing

–   Europol: by November 2015, 14 EU MS had connected their counter terrorism authorities to the Secure Information Exchange Network Application (SIENA) hosted by Europol, a key enabling platform for information exchange. This means that half of the Member States are still not connected. Siena will be upgraded to “confidential” in 2016. Terrorism crime related information and intelligence exchange remains low. A dedicated area for counter-terrorism authorities was created in SIENA in October 2015, allowing for direct bilateral and multilateral communication between counter-terrorism authorities, with Europol and third parties with an operational cooperation agreement.

There has been a strong increase of the use of the Europol Information System (EIS) since December 2014. By 13 November 2015, 1595 foreign terrorist fighters have been registered in EIS by 14 EU MS, 5 third parties and Interpol. Nevertheless, considering the much higher number of existing EU foreign terrorist fighters and the fact that half of all EU MS still have not used EIS, the system is clearly a work in progress.

FP Travellers, both from a quantitative and qualitative perspective, is not yet a tool which can provide in depth analysis in relation to all contributed operational cases across the EU. To date, 50.45 % of all contributions originate from just five MS and one associated third country. 2081 confirmed foreign terrorist fighters have been entered into FP Travellers.

Europol will launch the European Counter-Terrorism Center (ECTC) in early 2016 to strengthen information exchange. This will provide inter alia a robust security and confidentiality framework. A more robust information-sharing and operational-coordination platform will be established at Europol as part of ECTC to connect the police CT authorities. In the Council Conclusions of 20 November 2015, Member States committed to seconding CT experts to the ECTC to form an enhanced cross-border investigation support unit and indicated that Eurojust should also be involved. As Europol is actively engaged in support of ongoing CT investigations in several Member States and has been tasked by the Council to set up the IRU and the ECTC, it will be important to increase Europol ‘s resources accordingly to achieve sustainability.

–   Eurojust: Operational cooperation and information sharing have increased considerably. But this still does not reflect the extent of ongoing investigations and prosecutions. Operational cooperation in terrorism cases referred to Eurojust for assistance has more than doubled (13 cases in 2014, 29 cases so far in 2015, cases related foreign terrorist fighters increased from 3 to 14). Ten coordination meetings in terrorist cases have been organized in 2015, four of which related to FTF. In November 2015, Eurojust coordinated a joint action in six countries in a case of a radical terrorist group, leading to 13 arrests. The information on prosecutions and convictions for terrorist offences shared with Eurojust has more than doubled since 2014. So far in 2015, 109 cases were opened at Eurojust in relation to information exchange on terrorist offences – 17 on court results and 92 on ongoing prosecutions.
This is a threefold increase on the figure for 2014. Eurojust also animates several relevant networks such as the network of national correspondents for terrorism matters and the consultative forum of prosecutors-General and Directors of Public Prosecutions, specialized cybercrime prosecutors etc. The association of Eurojust to Europol’s Focal Point Travellers has allowed for improved information exchange.

Update of the Framework Decision on Combating Terrorism: The EU signed the Council of Europe Convention on the Prevention of Terrorism and its additional Protocol on Foreign Terrorist Fighters on 22 October 2015 in Riga. The Commission plans to present a proposal for the update of the Framework Decision before the end of 2015.

  1. External border controls
  2. Continue reading “Statewatch leaked document on the state of play of EU Antiterrorism policy (and its perspectives..)”

Data retention and bulk data: sometime the Council raises some good questions. But what about the answers ?

It does not happen very often but in a PUBLIC document diffused yesterday the Council Presidency raises some very interesting questions arising from the 2014 CJEU ruling on data retention (see below). It is worth recalling that already at that time the Court justified its decision with reference not only to art. 8 of the Charter (protection of personal data) but also to art. 7 (protection of privacy). The same happened this year with the Schrems case which deals with a similar situation (even if referred to a third country). Quite surprisingly the Council Presidency does not make reference to this ruling even if , according some doctrine (see the Martin Scheinin position published here)  it contain already an answer to the first question. According to Martin Scheinin the Court by referring to Article 7 of the Charter makes clear that:  In particular, legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter…

When the “essence” itself of a fundamental right is threatened, according to art.52 of the Charter is no more question of verify the “proportionality” of this kind of measures as they would be per se against the Charter (and the Treaty)

Let’s see what will be the MS (and judiciary) reaction and if they will take this occasion to re-examine some wide ranging legislative proposals which foresee a generalised collection of personal data (PNR, Entry-exit systems, not to speak of the monthly bulk transmission of EU citizens personal data to the US administration within the EU-USA TFTP (“SWIFT”) agreement…).

EDC

 

DOC  14246/15 24 November 2015 NOTE
From:Presidency
To:Permanent Representatives Committee/Council
No. prev. doc.:14369, 13085/15, 11747/1/15 REV 1
Subject: Retention of electronic communication data – General debate

1. The invalidation of the Data Retention Directive 1 by the Court of Justice of the EU 2on the grounds that it disproportionately restricted the rights to privacy and to the protection of personal data, has given rise to questions in the Member States, in particular as regards national transposition legislation and the availability of electronic communication data collected for access by law enforcement authorities and their use as evidence in criminal proceedings.

2. Member States had been given a wide margin of discretion in the implementation of the Data Retention Directive. This lead to considerable differences in the national legal frameworks3, which are compounded by the varying consequences of the assessment of the national data retention schemes by national parliaments and courts, especially in view of the Data Retention Judgement and the pending “Tele2” case 4.

3. The Data Retention Judgement has not directly affected national implementing legislations of the Data Retention Directive and these remain valid until amended, or repealed by national parliaments, or invalidated by national courts, provided that they comply with Articles 7 and 8 of the Charter of Fundamental Rights of the EU. Member States thus find themselves in a situation where they no longer have an obligation deriving from a specific Union legal instrument to introduce or maintain a national data retention regime providing for the mandatory storage of electronic communication data by providers for the purposes of detecting, investigating, and prosecuting serious crime. However, Member States retain the possibility to do so under Article 15(1) of the “E-privacy Directive” 5.

4. Opinions diverge on the interpretation of the Court’s judgement and thus on the legality of schemes for retaining bulk electronic communication data without specific reason. This has inter alia resulted in a large variety of situations at national level6. Some Member States have already adopted or are in a process of preparing new legislation on data retention, that, according to the information received by delegations, aims at ensuring strengthened procedural guarantees and safeguards in compliance with the Charter and in line with the ruling of the Court (EE, ES, IE, LT, LU, LV, MT, PL), including some Member States where the national law has been invalidated by the constitutional Court (DE, BG, NL).

5.Eurojust’s analysis of the current situation7 and expert debates held during the Luxembourg Presidency8 highlight that this fragmentation of the legal framework on data retention across the Union has an impact on the effectiveness of criminal investigations and prosecutions at national level, in particular in terms of reliability and admissibility of evidence to the courts based on the collection of electronic communication data, as well as on cross-border judicial cooperation between Member States and internationally.

6 In view of these challenges and the legal, procedural and practical problems they pose for investigations and prosecutions of all kinds of crime, not in the least in relation to counter-terrorism, the Presidency invites Ministers to address the following questions:

  • Is the Data Retention Judgement to be interpreted in the sense that retaining bulk electronic communication data without specific reason is still allowed ?
  • Considering the current fragmented situation throughout the Union, and the consequences it entails, should an EU-wide response be considered or should it be up to individual Member States to address the issue ?
  • Should the Commission be invited to present a new legislative initiative and if yes in what timeframe ?

 

NOTES

1        Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC
3        It is recalled that the transposition did not go easily in certain Member States, as a number of national constitutional courts annulled the national transposition laws for being contrary to the Constitution or the European Convention on Human Rights and certain national parliaments raised serious concerns.
2        Judgement of the Court of justice of the European Union (CJEU) (Grand Chamber) “Digital Rights Ireland and Seitlinger and others” of 8 April 2015 in joined Cases C-293/12 and C-594/12
4        The CJEU currently examines a preliminary ruling (pending Case C-203/15, lodged on 4 May 2015, Tele2 Sverige AB v. Post-och telestyrelsen ) on the compatibility of a national legislation (Swedish law in this case) to retain traffic data covering all persons, all means of electronic communication and all traffic data for the purpose of combating crime, with Article 15(1) of Directive 2002/58/EC (the e-privacy Directive), taking account of Articles 7, 8 and 15(1) of the Charter.
5        Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector
6        The current state of play is as follows: the transposition law of the Data Retention Directive has been invalidated in at least 11 Member States (AT, BE, BG, DE, LT, NL, PL, RO, SI, SK, UK). Amongst these, 9 countries have had the law invalidated by the Constitutional Court (AT, BE, BG, DE, SI, NL, PL, RO, SK). In 15 Member States (CY, CZ, DK, EE, ES, FI, FR, HR, HU, IE, LU, LV, MT, PT, SE) the domestic law on data retention remains in force, while they are still processing communication data.
7        Doc. 13085/15 and 13689/15
8        Doc. 11747/1/15 REV 1

Immigration detention in Europe

ORIGINAL PUBLISHED ON 02.11.2015 ON EUTOPIA 
Well before the current mass arrival of refugees, Europe has been busy closing its borders. As part of this attempt to ‘manage migration’, most member states have witnessed a growing intersection between criminal justice and immigration policy, introducing a host of new legislation criminalising matters that used to be purely administrative.

Police have acquired new roles and responsibilities related to border control, while prisons have paid far more attention to the citizenship of prisoners than ever before.

IN BRIEF

  • Although seeking asylum should not lead to a period of detention, due to the Dublin Conventions, asylum seekers are sometimes detained before removal to a third country
  • The uncertainty of detention is more than just a personal tragedy or a cause of momentary confusion; it is a constitutive part of this form of confinement
  • In Britain Immigration Removal Centres offer art and crafts, English as a second language, gym, IT training and access to the internet

Alongside these criminal justice initiatives, most European Union member states have opened new sites of administrative detention. These immigration detention centres hold foreigners under immigration powers either as they arrive or to enforce their departure. They may take a variety of forms, from temporary camps to purpose-built institutions.

As we witness growing numbers of new arrivals seeking sanctuary within Europe, we need to be very clear about the personal and moral impact of detention, both for those behind bars, but also for society as a whole.

Although states have long had powers to deport foreigners from their territory, and have confined them for various reasons, administrative sites related to processing asylum claims and/or detaining failed asylum seekers prior to deportation are more novel. At times of war, most states deploy custodial practices of some kind to hold suspect foreigners.

From the internment camps created in France for exiles fleeing the Spanish civil war in the mid-1930s to concentration camps of WWII, such practices overlap with more violent ideologies. So, too, the post-war post-colonial era has left its mark.

In Britain, the contemporary immigration detention system dates to 1970, when the first purpose-built institution, the Harmondsworth Detention Unit, was established. Opened in response to the Immigration Appeals Act of 1969, which gave Commonwealth citizens who were denied entry at the border the right to an in-country appeal, this preliminary institution laid the foundations for the far more complex and larger system that exists today.

In France, the chronology is similar, with the original target being migrants from Algeria. There it was not until the 1980s that legal safeguards were developed.

Today, a vast array of institutions can be identified in Europe as sites of detention. Many are concentrated in the southern states, reflecting the distribution of arrivals. There are a range of possible forms of accommodation including tents and shipping containers.

According to the EU Returns Directive, nobody should be detained for immigration matters for longer than 18 months. Most countries have agreed on a much shorter time frame, from 45 days in France to 90 days in Italy.

Although seeking asylum should not lead to a period of detention, due to the Dublin Conventions, asylum seekers are sometimes detained before removal to a third country. A high proportion of those confined are people whose asylum claim has been denied.

Continue reading “Immigration detention in Europe”

THE NEW DIRECTIVE ON IMMIGRATION OF STUDENTS AND RESEARCHERS: A SMALL STEP OR A BIG LEAP FORWARD?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Monday, 23 November 2015)

by Steve Peers

For a number of years, the EU has aimed to attract highly-skilled non-EU migrants to its territory. However, the existing legislation on this issue – the researchers’ Directive, adopted in 2005, and the students’ Directive, adopted in 2004 – have only had a modest impact on attracting more students and researchers to the EU, according to the Commission’s reports (see here and here) on the two Directives, issued in 2011.

Consequently, the Commission proposed an overhaul of this legislation in 2013. The European Parliament (EP) and the Council recently agreed on the text of this proposal (for the text of the provisional version of the future Directive, see here; the final version will be ‘tidied up’ a little legally). As you would expect, the EP and the Council compromised between their respective positions (for those positions, see here and here), which I discussed in an earlier blog post.

I’ll examine first the background and content of the new Directive, then look at how effective it is likely to be in its objective on increasing the numbers of researchers and students coming from third States.

Background

The current students’ Directive also applies to the admission of school pupils on exchange programmes, unpaid trainees and volunteers, although Member States have an option to apply it to the latter three groups of migrants. The CJEU has ruled twice on the interpretation of this Directive. In  Sommer it ruled that Member States could not apply a labour-market preference test for students; in Ben Alaya case (discussed here), it ruled that Member States must admit students who comply with the rules on admission in the Directive. The same logically applies to the current researchers’ Directive. The UK and Denmark opted out of both Directives, while Ireland opted in to the researchers’ Directive. All three countries have opted out of the new law.

The new law

The new Directive merges the students’ and researchers’ Directives, making major changes to them both. First of all, the Commission proposed that Member States would be obliged to apply the currently optional rules relating to school pupils, unpaid trainees and volunteers, as well as rules on two new groups of migrants: au pairs and paid trainees. The EP agreed with this idea, while the Council rejected it entirely. Ultimately, the two institutions compromised: the new Directive will have binding rules on (paid and unpaid) trainees and some volunteers (those participating in the EU’s European Voluntary Service), although stricter conditions will apply to the admission of trainees (more on that below). However, the rules on other volunteers and school pupils will remain optional, along with the new rules on au pairs.

Next, the Commission proposed to limit Member States’ current power to apply more favourable rules for students and researchers, confining that power to only a few provisions relating to the rights of migrants, while fully harmonising the rules on admission. The final Directive accepts the basic principle that the power to set more favourable standards should be more limited that at present, but imposes fewer such constraints than the Commission wanted. Member States will be allowed to apply more favourable rules for the persons concerned as regards the time limits on their residence permits. Many of the conditions relating to admission and withdrawal or non-renewal of the right to stay will be optional, not mandatory (as the Commission had proposed), and the Council insisted on many additional options being added. A clause in the preamble sets out the Council’s wish to provide expressly that Member States can have rules on admission of other categories of students or researchers.

Against the Commission’s wishes, the final Directive provides that the current rules on delegating decision-making to research institutions or universities will remain. Furthermore, it adds that Member States can optionally delegate such powers as regards volunteers or trainees as well.

Trainees are defined (more restrictively than the current law) as those who have recently completed a degree (within the last two years), or who are currently undertaking one. Their time on the territory is limited to six months, although this can be longer if the traineeship is longer, and the authorisation can be renewed once. But Member States retain the power to set more favourable standards as regards these time limits.

One striking feature of the agreed Directive is a new right for students and researchers to stay after their research or study to look for work or self-employment. The EU institutions agreed on the principle of this right, but disagreed on the details. According to the Commission, the right should apply for a period of 12 months, although after 3 months Member States could check on the genuineness of this search, and after 6 months they could ask the migrant to prove that they have real prospects. The EP wanted to extend the period to 18 months, and to make Member States wait longer to check on the genuineness of the job search or likelihood of employment. On the other hand, the Council wanted several restrictions: to reduce the stay to 6 months; to allow Member States to limit students’ possibility to stay to those who have at least a Master’s degree; to check on the likelihood of employment after 3 months; and to give Member States an option to limit the job search to the areas of the migrant’s expertise. The final deal splits the difference on the period of extra stay (it will be 9 months), and accepts the various optional limits on the right which the Council wanted.

As for students’ right to work, the current Directive allows them to work for at least for 10 hours a week. The Commission proposed to let them work for 20 hours a week, and to drop the option to ban students from working during their first year of studies. The EP agreed with this, but the Council wanted to revert to the current 10-hour a week limit, and introduce a possible labour-market preference test (overturning Sommer). Again, the final deal splits the difference: 15 hours’ of work allowed per week, with no labour market preference test.

Another issue was equal treatment of those who work. Currently, the EU’s single permit Directive provides for equal treatment of most third-country nationals who are allowed to work, even if (like students) they were not admitted for employment. However, that Directive excludes au pairs from its scope, and only applies where the relationship is defined as ‘employment’ under national law; this will not always be the case for researchers. The new Directive will extend the equal treatment rules to students and researchers, even if they are not considered employees, and to au pairs whenever they are considered employees. Even non-employees will have equal treatment for goods and services (besides housing and public employment offices). But the new Directive will not waive any of the various exceptions to equal treatment that the single permit Directive currently provides for, besides a few minor exceptions for researchers.

Also, the new Directive will replace the weak rules on family reunion in the current researchers’ Directive with a fully-fledged right to family reunion. The EU’s family reunion Directive will apply to Directive will apply to researchers, and many of the restrictions in that Directive will be waived: the minimum waiting period; the need to show a reasonable prospect of permanent residence; the need to show integration requirements for family members before entry (those rules can still be applied after entry; on the CJEU’s interpretation of those rules, see here). There will also be a shorter deadline to process applications, and family members will have a longer period of authorised stay. The EP and Council compromised on the Commission’s proposal to waive the waiting period before family members could access the labour market: the Council wanted to delete this proposed rule entirely, but it agreed to it with a derogation for ‘exceptional circumstances such as particularly high levels of unemployment’. However, the EP got nowhere with its suggestion to extend these more favourable rules to the family members of students as well.

The Commission aimed to simplify the current rules on the movement (‘mobility’) of researchers and students between Member States for the purpose of their studies and research. It also proposed to extend those rules to paid trainees, while the EP wanted to extend those rules to cover unpaid trainees and volunteers as well. However, the Council prevailed on this issue, restricting the scope of these rules to researchers and students (as at present), and adding very complicated details to the proposal on this issue.

Finally, the Commission proposed to introduce a 60-day deadline to decide on applications for admission, shortened to 30 days for those benefiting from EU mobility programmes. (The current laws have no deadlines to decide on applications at all). The EP supported an even shorter period to decide on applications (30 days), while the Council wanted to raise the time limit to 90 days. Yet again, these institutions split the difference, with a 90-day general rule and a 60-day rule where institutions have been delegated the powers to decide on applicants.

Comments

The agreed Directive should be appraised in light of the Commission’s impact assessment report for the proposed Directive, which made detailed arguments for the amendments which the Commission proposed. This report provided evidence that students or researchers are attracted to a job-search period after the end of research or studies, as well as by further employment rights for students and for researchers’ family members. Certainly the new Directive addresses all of these issues to some extent.

Conversely, would-be migrants are deterred by the great variety of national rules and the rules on mobility between Member States.  On this point, the new Directive will only reduce the variety of national rules modestly, and will install mobility rules more complex than those applying at present.

Presumably, it is also a deterrent for would-be students and researchers who are already legally present to leave the country to make their applications. To address this, the EP wanted to oblige Member States to consider in-country applications for researchers, but ultimately it could not convince the Council (or the Commission) to change the existing rules, which give Member States only an option to allow this.

As for the additional scope of the Directive, it is striking that the new binding rules on admission only apply to trainees who are undertaking or who have completed higher education, and to volunteers in the EU’s own programme. The latter change in the law is necessary in order to ensure the effectiveness of that programme, but the former change in the law is another example of the EU focussing its migration policy upon highly qualified employees. (Remember that according to the preamble to the new Directive, the admission of trainees who have not entered higher education is left entirely to national discretion). It’s unfortunate that at least the rules on equal treatment aren’t binding for all volunteers, school pupils and au pairs, to ensure that these migrants are not exploited and that domestic labour standards are not undercut.

Many of the changes in the Directive intending to attract qualified migrants would make even more sense if they were part of a ‘joined up’ policy – for instance, allowing trainees to make an in-country application for studies or research, or waiving some of the conditions in the EU’s ‘Blue Card’ Directive for highly-skilled migrants (reducing the income threshold, for instance) for graduate trainees, researchers, and students looking for work under this new Directive. Fortunately, there will be a chance to address this issue in the near future, as the Commission will soon be proposing an amendment to the Blue Card Directive (on the reform of that Directive, see here).

Overall, then, the new Directive has gone some distance towards accomplishing its intended objectives, but its effect could be further augmented in the near future by a broader reform of EU law on highly-skilled immigration in general.

After Paris : Justice and Home affairs Council draft Conclusions

ORIGINAL DOCUMENT ACCESSIBLE ON STATEWATCH SITE

(NOTA BENE : Comments will follow on the text finally adopted) 

Draft Conclusions of the Council of the EU and of the Member States meeting within the Council on Counter-Terrorism

  1. The Council is appalled by the heinous terrorist attacks which took place in Paris on 13 November 2015 and expresses its deepest condolences to the victims of these attacks, their families and friends. The Council emphasises its solidarity with the people of France and pays tribute to the courage and decisive actions of the French authorities. The attacks were an assault on the European values of freedom, democracy, human rights and the rule of law. This is not the first time that the EU has been confronted with a major terrorist attack and important measures have already been taken. The Council underlines the importance of accelerating the implementation of all areas covered by the statement on counter-terrorism issued by the Members of the European Council of 12 February 2015 and in particular of the measures outlined below.

PNR

  1. The Council reiterates the urgency and priority to finalise an ambitious EU PNR before the end of 2015, which should include internal flights in its scope, provide for a sufficiently long data period during which PNR data can be retained in non-masked out form and should not be limited to crimes with a transnational nature.

Firearms

  1. The Council:
  • welcomes the adoption of the Implementing Regulation on common deactivation standards on 18 November 2015,
  • welcomes the presentation by the Commission on 18 November 2015 of a proposal to revise the current Directive on Firearms,
  • is committed to increasing operational cooperation through Europol under the EU Policy Cycle on serious and organised crime, notably within the Operational Action Plan Firearms. All Member States affected by the problem are invited to join these efforts by the end of 2015,
  • invites Frontex and Europol to assist the Member States bordering the Western Balkans region with regard to increasing controls of external borders to detect smuggling of firearms.

Strengthening controls of external borders

4. Member States undertake to:

  • implement immediately the necessary systematic and coordinated checks at external borders, including on individuals enjoying the right of free movement,
    • on the bases of a quick identification of urgent needs and possible solutions, to be performed by the Commission before the end of 2015, upgrade the Member States border control systems (electronic connection to the relevant Interpol databases at all external border crossing points, automatic screening of travel documents) by March 2016,
    • in the context of the current migratory crisis, carry out a systematic registration, including fingerprinting, of all migrants entering into the Schengen area and perform systematic security checks by using relevant databases in particular SIS II, Interpol SLTD database, VIS and national police databases, with the support of Frontex and Europol, and ensure that hotspots are equipped with the relevant technology. Europol will deploy guest officers to the hotspots in support of the screening process, in particular by reinforcing secondary security controls,
    • strengthen the control at the external borders which are most exposed, in particular by deploying rapid border intervention teams (RABITs) and police officers in order to guarantee systematic screening and security checks.
    1. The Council reiterates its Conclusions of 9 November 2015 and invites the Commission to:
    • include EU nationals in the upcoming Smart Borders proposals and in this context present a proposal for the targeted revision of Art.7(2) Schengen Borders Code regarding systematic controls against relevant databases at EU external borders,
    • provide, in its proposal to update the Frontex Regulation, a solid legal basis for the contribution of Frontex to the fight against terrorism and organised crime and access to the relevant databases.
    1. Frontex will:
    • contribute to the fight against terrorism and support the coordinated implementation of the Common Risk Indicators (CRIs) before the end of 2015,
    • assist the Member States to tighten controls of external borders to detect suspicious travels of foreign terrorist fighters and smuggling of firearms, in cooperation with Europol,
    • work closely with Europol and Eurojust, in particular in the context of the hotspots, and exchange data with Europol on the basis of the cooperation agreement to exchange personal data. The latter should be concluded and become operational without delay.

    Information sharing

    7. The Council decides to step up law enforcement cooperation on counter-terrorism (CT):

    • Member States will instruct national authorities to enter data on all suspected foreign terrorist fighters into the SIS II under Article 36.3, carry out awareness raising and training on the use of the SIS and define a common approach to the use of the SIS II data relating to foreign fighters,
    • Europol will launch the European Counter Terrorist Centre (ECTC) on 1 January 2016 as a platform by which Member States can increase information sharing and operational coordination with regard to the monitoring and investigation of foreign terrorist fighters, the trafficking of illegal firearms and terrorist financing. The ECTC will provide national CT authorities with enhanced information sharing capacities notably via Focal Point Travellers, the Europol Information System and Europol’s SIENA system reserved for counter-terrorism cases. The new Europol Regulation, on which an agreement should be reached between the co-legislators before the end of the year, should be consistent with the mandate and objectives of the ECTC, including the IRU,
    • Member States will second CT experts to the ECTC to form an enhanced cross-border investigation support unit, capable of providing quick and comprehensive support to the investigation of major terrorist incidents in the EU. Eurojust should also participate,
    • The Commission is invited to ensure that Europol is reinforced with the necessary resources to support ECTC and to submit a legislative proposal in order to enable Europol to systematically cross-check the Europol databases against the SIS II as established by Council Decision 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System (SIS II),
    • Member States will make maximum use of these capabilities to improve the overall level of information exchange between CT authorities in the EU. Member States will instruct the relevant national authorities to further increase their contributions to Focal Point Traveller at Europol to reflect the threat and connect to relevant Europol information exchange systems.

     
    Terrorist financing

    1. The Council invites the Commission to present proposals to strengthen, harmonise and improve cooperation between Financial Intelligence Units (FIU’s), notably through the proper embedment of the FIU.net network for information exchange in Europol and ensure their fast access to necessary information, in order to enhance the effectiveness and efficiency of the fight against money laundering and terrorist financing in conformity with Financial Action Task Force (FATF) recommendations, to implement more quickly the asset freezing required by the UN Security Council (Resolution 1373), to strengthen controls of non-banking payment methods such as electronic/anonymous payments and virtual currencies and transfers of gold, precious metals, by pre-paid cards and to curb more effectively the illicit trade in cultural goods.

     Criminal justice response to terrorism and violent extremism

     9. The Council welcomes the signing in Riga on 22 October 2015 by the EU of the Council of Europe’s Convention on the Prevention of terrorism and of its additional Protocol on Foreign Terrorist Fighters and invites the Commission to present a proposal for a directive updating the Framework Decision on Combating Terrorism before the end of 2015 with a view to collectively implementing into EU law UNSC Resolution 2178 (2014) and the additional Protocol to the Council of Europe’s Convention.

     10. Member States will use ECRIS at its full potential. The Council invites the Commission to submit by January 2016 a proposal for the extension of ECRIS to cover third country nationals.

     11. The Council invites the Commission to allocate as a matter of urgency the necessary financial resources to implement the Council Conclusions on enhancing the criminal justice response to radicalisation leading to terrorism and violent extremism. This should notably support the development of rehabilitation programmes as well as risk assessment tools in order to determine the most appropriate criminal justice response, taking into account the individual circumstances and security and public safety concerns.

     Funding

    1. The Council invites Member States to use the Internal Security Fund to support the implementation of these conclusions and to prioritise relevant actions under the national programmes to this effect, and calls on the Commission to prioritise the funding available under centrally managed funds to the priorities identified in these conclusions.

    Implementation

    1. In view of its role on strengthening internal security within the Union, COSI shall coordinate the role of the various Council Working Parties and of the EU agencies in the implementation of these Council Conclusions. The Counter Terrorism Coordinator will monitor their implementation.

    Fundamental Rights Agency :  Surveillance by intelligence  services: fundamental rights safeguards and remedies in the EU.  Mapping Member States’ legal frameworks

    EXECUTIVE SUMMARY : FULL REPORT AVAILABLE HERE

     Introduction

    Recent revelations of mass surveillance underscore the importance of mechanisms that help prevent fundamental rights violations in the context of intelligence activities.

    This FRA report aims to evaluate such mechanisms in place across the European Union (EU) by describing the current legal framework related to surveillance in the 28 EU Member States. The report first outlines how intelligence services are organised, describes the various forms surveillance measures can take and presents Member States’ laws on surveillance. It then details oversight mechanisms introduced across the EU, outlines the work of entities set up thereunder, and presents various remedies available to individuals seeking to challenge surveillance efforts.

    The report does not assess the implementation of the respective laws, but maps current legal frameworks. In addition, it provides an overview of relevant fundamental rights standards, focusing on the rights to privacy and data protection.

    Background

    In June 2013, media worldwide began publishing the ‘Snowden documents’, describing in detail several surveillance programmes being carried out, including by the United States’ National Security Agency (NSA) and by the United Kingdom’s Government Communications Headquarters (GCHQ). These brought to light the existence of extensive global surveillance. Details of these programmes, which set up a global system of digital data interception and collection, have been widely publicised 1 and critically assessed.2

    Neither the US nor the British authorities questioned the authenticity of the revelations,3 and in some cases confirmed them.4 However, the media’s interpretation of the programmes was sometimes contested – for example, by the UK Intelligence and Security Committee of Parliament 5 and academia.6

    Since most of the Snowden revelations have not been recognised by the British government, the Investigatory Powers Tribunal, in hearing challenges to the legality of the programmes, took the approach of hearing cases on the basis of hypothetical facts closely resembling those alleged by the media.7 For the Austrian Federal Agency for State Protection and Counter Terrorism (BVT), the Snowden revelations represented a “paradigm shift”: “Up until a few years ago, espionage was largely directed at state or business secrets, and not, for the most part, at people’s privacy, which can now be interfered with extensively by intelligence services since they possess the necessary technical resources to do so”. 8

    The Snowden revelations were not the first to hint at the existence of programmes of large-scale communication surveillance set up in the aftermath of the 11 September 2001 attacks.9

    But the magnitude of the revelations was unprecedented, potentially affecting the entire world.

    The revelations triggered an array of reactions.10 In the intelligence community, and in particular among the specialised bodies in charge of overseeing the work of intelligence services, dedicated inquiries were conducted.11 The European Union reacted strongly.

    The European Commission (EC), the Council of the European Union and the European Parliament (EP) reported on the revelations, expressing concern about mass surveillance programmes, seeking clarification from US authorities, and working on “rebuilding trust” in light of the damage created by the revelations.12

    On 12 March 2014, the EP adopted a resolution on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights, and transatlantic cooperation in Justice and Home Affairs (the Resolution).13

    The resolution drew on the in-depth inquiry that the EP tasked the Civil Liberties, Justice and Home Affairs Committee (LIBE) to conduct during the second half of 2013, shortly after the revelations on mass surveillance were published in the press.14

    The wide-reaching resolution launched a “European Digital Habeas Corpus”, aimed at protecting fundamental rights in a digital age while focusing on eight key actions. In this context, the EP called on the EU Agency for Fundamental Rights (FRA) “to undertake in-depth research on the protection of fundamental rights in the context of surveillance, and in particular on the current legal situation of EU citizens with regard to the judicial remedies available to them in relation to those practices”.15

    Scope of the analysis

    This report constitutes the first step of FRA’s response to the EP request. It provides an overview of the EU Member States’ legal frameworks regarding surveillance. FRA will further consolidate its legal findings with fieldwork research providing data on the day-to-day implementation of the legal frameworks. A socio-legal report based on an empirical study, to be published at a later stage, will expand on the findings presented ere.

    While the EP requested the FRA to study the impact of ‘surveillance’ on fundamental rights, given the context in which the resolution was drafted, it is clear that ‘mass surveillance’ is the main focus of the Parliament’s current work. During the data collection phase, FRA used the Parliament’s definition to delineate the scope of FRA net’s research.

    The EP resolution refers to “far-reaching, complex and highly techno-logically advanced systems designed by US and some Member States’ intelligence services to collect, store and analyse communication data, including content data, location data and metadata of all citizens around the world, on an unprecedented scale and in an indiscriminate and non-suspicion-based manner” (Paragaph 1).

    This definition encompasses two essential aspects: first, a reference to a collection technique, and second, the distinction between targeted and untargeted collection.

    The report does not analyse the surveillance techniques themselves, but rather the legal frameworks that enable these techniques. For Member States that carry out signals intelligence, the focus of the analysis is on this capacity, and not on other intrusive capabilities the services may have (such as wiretapping).

    This report covers the work of intelligence services. It does not address the obligations of commercial entities which, willingly or not, provide intelligence services with the raw data that constitute Signals Intelligence (SIGINT), and are otherwise involved in the implementation of the surveillance programmes.16 The private sector’s role in surveillance requires a separate study.

    While the premise of this report is the existence of an interference, since the “secret monitoring of communications” interferes with privacy rights from a fundamental rights point of view,17 the report focuses on analysing the legal safeguards in place in the EU Member States’ legal frameworks, and therefore on their approaches to upholding fundamental rights.

    “Assuming therefore that there remains a legal right to respect for the privacy of digital communications (and this cannot be disputed (see General Assembly Resolution 68/167)), the adoption of mass surveillance technology undoubtedly impinges on the very essence of that right.” UN, Human Rights Council, Emmerson, B. (2014), para. 18

    The report’s analysis of EU Member States’ legal frameworks tries to keep law enforcement and intelligence services separate. By doing so, the report excludes the work of law enforcement from its scope, while recognising that making this division is not always easy.

    As stated by Chesterman, “Governments remain conflicted as to the appropriate manner of dealing with alleged terrorists, the imperative to detect and prevent terrorism will lead to ever greater cooperation between different parts of government”.18 The EP resolution recognises this and called on the Europol Joint Supervisory Body (JSB) to inspect whether information and personal data shared with Europol have been lawfully acquired by national authorities, particularly if the data were initially acquired by intelligence services in the EU or a third country.19

    The Snowden revelations have also shed light on cooperation between intelligence services. This issue, important for the oversight of intelligence services’ activities, has been addressed by the EP resolution (Paragraph 22), by oversight bodies,20 by the Venice Commission,21 and by academia.22

    This aspect, however, proved impossible to analyse in a comparative study, since, in the great majority of cases, cooperation agreements or modalities for transferring data are neither regulated by law nor public. This in itself creates a fundamental rights issue linked to the rule of law and, more particularly, regarding the importance of the existence of a law that is accessible to the public, as well as regarding the rules governing the transfer of personal data to third countries.

    Though this report could not deal with this aspect beyond referencing the lack of proper control by over-sight bodies, it does raise important questions under relevant legal standards.

    Fundamental rights and safeguards Continue reading “Fundamental Rights Agency :  Surveillance by intelligence  services: fundamental rights safeguards and remedies in the EU.  Mapping Member States’ legal frameworks”

    PRACTICES AND APPROACHES IN EU MEMBER STATES TO PREVENT AND END STATELESSNESS

    EXECUTIVE SUMMARY OF A STUDY FOR THE EUROPEAN PARLIAMENT CIVIL LIBERTIES COMMITTEE (LIBE) Full study (121 pages) accessible HERE

    Authors: Prof Gerard Rene’ DE GROOT, Katja SWIDER, Olivier WONK

    Aim

    The aim of the present study is to describe the practices and approaches in all EU Member States concerning the prevention and eradication of statelessness. For that purpose the study analyses the relevant international and European standards (Chapter 2) and assesses the national practices in light of these standards (Chapter 3). Since the prevention and eradication of statelessness depends on proper mechanisms to identify stateless populations, the subject of procedures for determining statelessness is addressed. We also investigate whether installing such a procedure creates a ‘pull factor’ (Chapter 4). The study ends with a detailed analysis of the possible role of the European Union in preventing and reducing statelessness (Chapter 5).

    Key Findings

    International and European standards to prevent and end statelessness

    1. Important standards on the avoidance and reduction of statelessness can be found in the 1954 United Nations (UN) Convention relating to the status of stateless persons, the 1961 United Nations (UN) Convention on the reduction on statelessness and the 1997 Council of Europe (CoE) Convention on Nationality.
    2. The European Union pledged at the UN High-level Rule of Law Meeting in New York, which took place in September 2012, to stimulate EU Member States to address the issue of statelessness by ratifying the 1954 UN Convention and considering the ratification of the 1961 UN Convention.
    3. For the interpretation and further development of standards following from these conventions, the UNHCR Guidelines on Statelessness, published in 2012, and Recommendation 2009/13 of the Council of Europe on the position of children in nationality law are of paramount importance.
    4. Landmark court decisions are the 2010 decision of the Court of Justice of the European Union in Janko Rottmann v. Freistaat Bayern (C-135/08) (concluding that deprivation of nationality, with statelessness as a result, may only happen after applying a proportionality test to such a measure) and the 2011 European Court of Human Rights decision in Genovese v. Malta (application no. 53124/09) (concluding that nationality is part of one’s personal identity and as such protected by the concept of private life under Article 8 ECHR) as well as the 2014 decision in Sylvie Mennesson v. France (application no. 65192/11) and Francis Labassee v. France (application no. 65941/11) (stipulating that aspects relating to one’s social identity need to have consequences for the nationality position of children born from cross-border surrogacy arrangements).

    Assessment of Member State rules in light of international and European standards

    1. The comparative analysis shows that several Member States violate international and European standards regarding protection against statelessness.
    2. This is not only true for Member States that are not bound by the relevant international treaties, but also for Member States that have acceded to these conventions.
    1. Moreover, the standards of protection against statelessness differ considerably between the Member States.
    2. This is particularly problematic for the grounds for loss, since the loss of a Member State’s nationality, resulting in statelessness, implies the loss of European citizenship.
    3. Exclusion from both the protection that nationality offers and the benefits of EU citizenship prevent people from accessing fundamental civil, political, economic, cultural and social rights and put them at risk of repeated or prolonged detention and destitution.
    4. There is a need for greater clarity as regards the legal position of permanent resident non-citizens in Latvia and Estonia, who formerly held the citizenship of the Soviet Union, in light of international and European law. Indeed, in order to avoid that the activation of statelessness will prevent or reduce provisions, States sometimes deliberately do not classify a person as “stateless”, but assign the person involved a different label. This occurred in Latvia and Estonia with the introduction of the special status of “permanent resident non-citizen” in Latvia or a “person of undefined nationality” in Estonia.

    Protection of stateless persons in the migratory context and statelessness determination procedures Continue reading “PRACTICES AND APPROACHES IN EU MEMBER STATES TO PREVENT AND END STATELESSNESS”