The ’emergency brake’ on EU citizens’ benefits: Must the Commission or Council control it?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Sunday, 31 January 2016)

by Steve Peers,

One issue that has arisen in the UK’s renegotiation of EU membership is the procedure for the UK (or other Member States) invoking an ‘emergency brake’ to limit access to in-work benefits by EU citizens. Should a Member State be able to pull the ‘emergency brake’ on its own initiative (perhaps with a requirement to notify the Commission and Council)? Or should it only be able to make a request to that effect, with the Commission and/or Council deciding on whether to authorise it?

The following analysis demonstrates that there is no legal rule which requires that only the Commission and/or Council can authorise a Member State to pull the emergency brake. Therefore it is a matter of political discretion to decide on who should pull it.

Treaty rules

There is no general rule in the Treaty governing the use of Member States’ safeguards and derogations. The possible limits on free movement rules on grounds of public policy et al refer only to decisions by Member States’ governments, although the EU institutions have the power to adopt legislation on these issues. Similarly, the power to disapply EU law in times of war, threat of war or civil disturbance is invoked by Member States; the Treaty only refers in this case to discussions with the Commission, and a possible special procedure before the Court of Justice. (To keep this text readable for non-lawyers, I have put the precise details of all the laws referred to in an annex.)

On the other hand, there are some Treaty Articles which provide for authorisation for Member States’ action by the Commission (as regards higher national standards following internal market harmonisation), or by the Council (to authorise a state aid which the Commission has ruled out, or to permit a tax rule restricting movement of capital to third countries).

The Treaty provisions most directly relevant to social security and immigration of large numbers of people give the final say to Member States. In particular, if a Member State pulls an ‘emergency brake’ to stop EU decision-making on social security for EU citizens exercising free movement rights, there is discussion in the European Council, but the proposal can ultimately be blocked if there is no agreement there among all Member States. The case law of the CJEU implicitly confirms that if Member States wish to restrict the free movement of EU citizens on grounds of public health, they may do so without being subject to an EU control procedure (Bressol). And the power to control the volumes of non-EU citizens coming from third countries to the EU to work rests entirely with the Member States.

In certain cases, the CJEU has insisted upon a Community (EU) control procedure for Member States’ derogations. But those cases apply to circumstances where the EU both has exclusive competence, and there are Treaty provisions relating to the control procedure. In Commission v UK, the Court relied on the 1972 Act of Accession and the exclusive EU competence over fisheries conservation to justify its conclusion that Member States have ‘special duties of action and abstention’ where the Commission has made proposals to the Council which had not yet been adopted, entailing prior Commission approval of Member State action. In its subsequent judgment in Bulk Oil, the Court essentially confined the Commission v UK judgment to its particular facts.

In Donckerwolke, the Court stated that national measures relating to trade with non-EU countries needed Commission approval. Again, though, this was in light of the exclusive EU competence in the area, and in particular of Article 115 EEC (since repealed), which detailed this process. The exclusive EU powers over these two issues can be distinguished from the shared power over the internal market.

Secondary law

The most relevant provisions in EU secondary legislation tend to give power to Member States to trigger derogations, with at most an information and consultation requirement for the EU institutions. Most significantly, the EU citizens’ Directive leaves it entirely to Member States to trigger the exceptions to EU citizens’ access to benefits. The EU’s patients’ Directive (more on that Directive here) allows Member States to limit reimbursement of costs incurred by patients in other Member States, subject only to a requirement to inform the Commission.

Equally the legislation referring to movements of large numbers of third-country nationals reserves power to Member States. The asylum procedures Directive allows Member States to adopt a longer deadline to decide on asylum applications where there a ‘large number’ of applications, without even a notification requirement. Also, Member States alone decide on whether to derogate from the rules on border procedures in the event of a ‘large number’ of applications at the border or in a transit zone.

Under the Directive on reception conditions for asylum-seekers, Member States may adopt different rules where the normal accommodation to be provided is ‘temporarily exhausted’, with no control requirement. And under the Returns Directive, Member States can derogate from some safeguards on immigration detention if there are an ‘exceptionally large number’ of irregular migrants; but they need only inform the Commission of this decision.

Finally, an example from outside the field of immigration, free movement and social security proves that Member States are often given sole discretion to decide on derogations in other fields of EU law too. The working time Directive provides for four categories of derogations. The first three categories are entirely up to Member States’ discretion. The fourth category, which sets out transitional rules for doctors in training which have now expired, set out rules requiring only a Commission opinion before Member States extended the relevant transitional period.

Of course, secondary EU law is required to comply with EU primary law in the Treaties, and so the lack of EU control procedures over derogations would be invalid if it violated the Treaties. But as discussed in the first part, the Treaties set out no general rule on the EU political institutions’ control of Member States’ derogations from EU law. Indeed, in the particular areas of free movement and social security, they expressly leave the power to decide on such measures to Member States. This is, however, without prejudice to the possibility of judicial control (by the national courts and the CJEU) to determine whether most of these national decisions (except for the ‘emergency brake’ on social security decision-making) have been validly exercised.

 

 

Annex – Articles in Treaty and legislation referred to

Free movement exceptions: Articles 45(3), 52(1), 62 and 65(1) TFEU

Emergency wartime derogation: Article 348 TFEU

Higher national standards following internal market harmonisation: Article 114 TFEU

State aid authorisation: Article 108(2) TFEU

Tax rule restricting movement of capital to third countries: Article 65(4) TFEU

Social security and free movement of persons: Article 48 TFEU

Volumes of third-country nationals coming to work: Article 79(5) TFEU

Fisheries conservation ruling: Case 804/79 Commission v UK, referring to Article 102 of the 1972 Act of Accession (paras 17, 28 and 31 of the judgment)

Case 174/84 Bulk Oil: para 56

EU competences: Articles 3(1) and 4(1)(a) TFEU

EU citizens’ Directive (Directive 2004/38): Article 24

EU’s patients’ Directive (Directive 2011/24): Article 7(9) and (11)

Asylum procedures Directive (Directive 2013/32): Articles 31(3)(b) and 43(3)

Directive on reception conditions for asylum-seekers (Directive 2013/33): Article 18(9)(b)

Returns Directive (Directive 2008/115): Article 18

Working time Directive (Directive 2003/88): Article 17

The EU Humanitarian Admission Scheme for Syrian Refugees in Turkey

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Sunday, 24 January 2016)

by Laura Robbins-Wright (*)

On 15 December 2015, the European Commission published a recommendation concerning a humanitarian admission scheme for Syrian refugees in Turkey. The recommendation follows a June 2015 decision to implement an intra-EU relocation programme and a scheme of resettlement from third countries. The document also builds on an action plan released in October 2015 and a more recent decision to provide €3 billion for a Refugee Facility that will “coordinate and streamline” the provision of humanitarian assistance to Syrian refugees in Turkey. The recommendation calls for a “rapid, efficient and voluntary scheme” for the “orderly, safe and dignified arrival” of these individuals.

Three aspects of the recommendation stand out and merit further analysis.

First, the Commission noted the importance of demonstrating solidarity with Turkey since the country hosts more than 2.2 million Syrian refugees at present. However, though Turkey hosts the largest absolute number of Syrian refugees, Jordan and Lebanon bear the greatest (relative) responsibility for these refugees. Indeed, whereas Syrian refugees comprise approximately 3 per cent of the total population of Turkey, they make up roughly 10 percent of the population of Jordan and more than 20 per cent of the population of Lebanon. Nevertheless, the recommendation to offer humanitarian admission to refugees from Turkey is perhaps to be expected given that the EU shares a border with Turkey and thousands of refugees have attempted the perilous journey across the Aegean into Greece. Furthermore, Turkey is a candidate for accession to the EU, while Jordan and Lebanon are simply considered to be part of the broader ‘European neighbourhood.’ Though negotiations on Turkish accession opened in 2005 and have proceeded slowly since then, the European Union and Turkey may be in the process of forging a new and more cooperative relationship in migration that could enhance refugee protection and “re-energize” these complex discussions.

Second, the recommendation also emphasises the voluntary nature of participation in the proposed scheme. The Commission indicated that all Member States, plus members of Schengen, are welcome to join the humanitarian admission programme. This approach is consistent with some of the previous intra-EU relocation efforts – namely EUREMA I and II. The decision to offer Member States a choice in participating in this programme is not especially surprising given the challenges the Commission faced in securing the agreement of some Member States on national quotas for the intra-EU relocation programme proposed last summer. In that context, recent media reports indicate that EU Migration Commissioner Dimitri Avromopoulos has acknowledged that “relocation does not work.” This statement is supported through data released on 20 January, 2015 which demonstrate that Member States pledged just over 4,200 places (as opposed to the Commission’s target of 160,000 places) and only 331 individuals have been relocated from Greece and Italy to date.

From a normative perspective, the desire to demonstrate international solidarity aligns with the principle of international cooperation outlined in the preamble to the 1951 Convention. However, this voluntary approach – combined with a clear lack of enthusiasm for the most recent relocation scheme – raises the age-old question of whether the European Union can truly achieve a cohesive approach to humanitarian protection.

Finally, the recommendation is notable for its strategic approach, as embodied in the desire to achieve a “sustainable reduction” in irregular migration from Turkey to the European Union. Since 2003, the United Nations High Commissioner for Refugees (UNHCR) has attempted to reframe resettlement as a strategic instrument for protection that emphasises the direct and indirect benefits of resettlement for refugees, host countries, receiving countries, and the international refugee protection regime. However, the organisation also recognised the importance of ensuring that such programmes do not create a “pull factor” for further migration. The UNHCR suggested that this can be achieved by establishing “clear and transparent” selection criteria. In this case, the Commission has proposed that only those who registered their presence with Turkish officials prior to 29 November, 2015 will be eligible for humanitarian admission. The Commission also recommends that participating countries assess why the individual fled Syria and examine their vulnerability and potential family ties within the European Union, among other criteria.

Though managing this humanitarian admission programme in a strategic manner could encourage Turkey to continue welcoming asylum seekers and also enable some Syrians to benefit from international protection, there are questions as to how Turkey will seek to manage ongoing arrivals. Furthermore, the UNHCR has noted that the decision to offer a durable solution to certain refugees can potentially create “bitterness and resentment” among ineligible groups, particularly in cases where these groups do not have access to effective protection in the host country. This raises questions about how the prospective decision to offer humanitarian protection to Syrian refugees will be perceived by the tens of thousands of Afghan, Iranian, and Iraqi refugees who have long resided in Turkey and may be obliged to wait up to 10 years for a decision on their respective applications for protection.

Though the recommendation offers clear operational guidelines, it does not indicate how many refugees can or should be offered protection through this proposed scheme. Instead, the Commission notes that the number of individuals offered admission should be determined according to UNHCR processing capacity, the number of displaced persons in Turkey, and the impact of efforts to reduce irregular migration to Turkey (a measure that has attracted criticism from the European Council on Refugees and Exiles). Furthermore, the Commission has recommended that participating Member States admit those granted subsidiary protection in an “equitable” manner. However, given the aforementioned challenges the Commission faced in securing Member State agreement on quotas for the intra-EU relocation programme, this could prove more difficult than anticipated. Overall, it remains unclear whether this humanitarian admission programme – if adopted – will have a meaningful impact on the substantial number of Syrian refugees residing in Turkey at present.

Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants

EXECUTIVE SUMMARY OF A STUDY FOR THE EUROPEAN PARLIAMENT LIBE COMMITTEE (Full study – 128 pages-accessible HERE) 

Authors: Dr Sergio CARRERA , Prof. Elspeth GUILD, Dr Ana ALIVERTI, Ms Jennifer ALLSOPP ,Ms Maria Giovanna MANIERI, Ms Michele LEVOY

The ongoing ‘asylum crisis’, with the tragic experiences and loss of lives among people trying to reach and cross the EU’s external borders, has been the catalyst for renewed EU policy efforts to address the issue of irregular migration and people smuggling  in the scope of the  European Agenda on Migration.

The issue of facilitating the entry, transit and stay of irregular migrants has been politicised at the EU’s internal borders and within Member States during the course of 2015. While migrants remain in transit in areas such as Calais, Ventimiglia and the Serbian-Croatian border, often seeking out the services of smugglers to cross into neighbouring states to reunite with family members or fulfil a personal migration goal, humanitarian actors seek to respond to their human rights and needs in an increasingly ambiguous, punitive and militarised environment. Within many EU Member States, the backdrop of austerity and cuts to public services has placed local authorities and civil society actors in a difficult position as they seek to respond to the basic needs of new and  established  migrants.

In the EU Action Plan against migrant smuggling (2015-2020) (COM(2015) 285), the Commission noted that it would ensure that appropriate criminal sanctions are in place while avoiding the risks of criminalising those who provide humanitarian assistance to migrants in distress. Accordingly, the Commission has at least implicitly acknowledged the inherent tension between assisting irregular migrants to enter, transit and remain in EU Member States and the real risks this poses to those who provide humanitarian assistance of being subject  to criminal  sanctions.

This tension between the criminalisation of people smuggling and those providing humanitarian assistance is a by-product of Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (the Facilitation Directive) and the Council Framework Decision implementing it – collectively known as the ‘Facilitators’ Package’. The tension arises because the Facilitators’ Package seeks to compel Member States to provide criminal sanctions for a broad range of behaviours that cover a continuum from people smuggling at one extreme to assistance at the other, but it does so with a high degree of legislative ambiguity and legal uncertainty.

The implementation of the Facilitators’ Package has been said to face a number of key challenges. There is, however, a lack of on-the-ground information about the multilayered effects of the practical implementation of the Facilitation Directive on irregular migrants and those providing assistance to them. This study aims to address this gap by providing new knowledge on this issue, while also identifying areas for further research. It provides a comprehensive understanding of the implementation of the humanitarian exception provisions of the Facilitators’ Package and their impact on irregular migrants, as well as the organisations and individuals assisting them in selected Member States.

The study finds a substantial ‘implementation gap’ between the UN Protocol against the Smuggling of Migrants by Land, Sea and Air (referred to as the UN Smuggling Protocol) and the international and EU legal frameworks on people smuggling. Chiefly, the latter differs from the UN Protocol in three main ways: i) the extent of the inclusion and definition of an element of “financial gain” in the description of facilitation of irregular entry, transit and stay; ii) the inclusion of an exemption of punishment for those providing humanitarian assistance; and iii) the inclusion of specific safeguards for victims of   smuggling.   As   a   result   of   the   discretionary   powers   granted   to   Member   States    in   the implementation of the Facilitators’ Package, the study further finds variation in the way in which laws are implemented in the national legislation of selected Member States. This results in legal uncertainty and inconsistency, and impacts on the effectiveness of the legislation.

An analysis of available statistics coupled with an in-depth analysis of court cases in selected countries involving the criminalisation of facilitation and humanitarian assistance reveals that qualitative and quantitative data on the prosecution and conviction rates of those who have provided humanitarian assistance to irregular migrants is lacking at the national and EU level. We can therefore identify a significant knowledge gap regarding the practical use and effects of the criminalisation of entry, transit and residence. Domestic court cases in selected EU Member States offer anecdotal evidence that family members and those assisting refugees to enter have been criminalised. Meanwhile, domestic developments in Greece and Hungary suggest that these laws are being applied with renewed rigour but with minimal monitoring of the direct or indirect impact on humanitarian assistance. Irrespective of the actual number of convictions and prosecutions, the effects of the Facilitators’ Package extend beyond formal   prosecutions and the number  of criminal  convictions.

Drawing on primary evidence from an online survey, the study demonstrates that, in addition to direct and perceived effects, the Facilitation Directive has profound unintended consequences (or indirect effects) that have an impact not just on irregular migrants and those who assist them, but also on social trust and social cohesion for society as a whole. Some civil society organisations fear sanctions and experience intimidation in their work with irregular migrants, with a deterrent effect on their work. They similarly highlight the lack of EU funding to support the work of cities and civil society organisations providing humanitarian assistance to irregular migrants. Moreover, we find widespread confusion among civil society practitioners about how the Facilitation Directive is implemented in their Member State, which can lead to misinformation and ‘erring on the side of caution’, thereby compromising migrants’ access to vital services. This is especially true in the context of the current migration crisis, where everyday citizens are obliged to volunteer vital services in the absence of sufficient state provision. This confusion stems in part from a lack of coordination between local and national authorities regarding implementation  of the Facilitation  Directive.

In certain Member States, the implementation of the Facilitation Directive is perceived to contribute to the social exclusion of both irregular and regular migrants and to undermine social trust. Shipowners report that they feel poorly supported by Member States and  are ill  placed  to  help  irregular migrants  at  sea.

In light of the above considerations, the study formulates the following policy recommendations  to  the  European Parliament:

Recommendation 1: The current EU legal framework should be reformed to i) bring it into full compliance with international, regional and EU human rights standards, in particular those related to the protection of smuggled migrants; ii) provide for a mandatory exemption from criminalisation for ‘humanitarian assistance’ in cases of entry, transit and residence; and iii) use the financial gain element and include standards on aggravating circumstances in light of the UN Smuggling Protocol. Clarity and  legal   certainty should  be  the  key guiding  principles  of  this  legislative reform.

Recommendation 2: Member States should be obliged to put in place adequate systems to monitor and independently evaluate the enforcement of the Facilitators’ Package, and allow for quantitative and qualitative assessment of its implementation when  it  comes to the number  of  prosecutions  and convictions, as  well   as  their effects.

 

Recommendation 3: EU funding should be made available for cities and civil society organisations to address the human rights, destitution and humanitarian needs of irregular migrants.

Recommendation 4: Firewall protections should be enshrined for irregular migrants to allow them to report human rights abuses and access public services without fear that they  will  immediately  be  reported  to  immigration  authorities.

Continue ...

 

Moving Towards Plan B: the Rejection of Refugees at the Border

ORIGINAL PUBLISHED ON EU Immigration and Asylum Law and Policy Blog  on 28 ThursdayJan 2016

EU Immigration and Asylum Law and Policy

By Daniel Thym, Universität Konstanz

Borders are a place of great symbolic importance and are deeply enshrined in our cultural memory. Most of us first encountered them in school where we got to know borders as fine black lines on maps separating countries. They appeared, thus, as a quasi-natural basic structure giving us orientation. It does not come as a surprise, therefore, that political debates often invoke national borders as a place where a solution to the ongoing refugee crisis could be found. Sweden recently stepped up controls through reinforced carrier sanctions. Last week, Austria introduced an upper limit on the number of refugees, while support for a potential Plan B gathered momentum in Germany.

To be sure, nothing has been decided yet. Even the numerical upper limit imposed by Austria remains a political guideline (Richtschnur) whose method of implementation remains to be determined. German politicians still hope for a pan-European solution with intergovernmental consultations between Turkey and Germany signalling that the government remains confident that international cooperation may yield results. This is Merkel’s Plan A which I described in a post three months ago: effective migration management at European level is the favoured solution.

Yet, the chancellor keeps emphasising that the number of refugees must be reduced noticeably (spürbar zu verringern). If that fails, the political pressure to move towards a national solution may prove irresistible. Political observers identify late spring as a potential turning point. In late spring, the number of sea arrivals is expected to increase again due to weather conditions, regional elections in Baden-Württemberg and Rhineland-Palatinate with a combined population of 15 million people may have signalled widespread popular unease and the Austrian upper limit for this year will be reached around the same time. The most symbolic expression of a Plan B would be the rejection of asylum seekers at the border, the legal implications of which will be discussed below.

Plan B: Loss of Trust in a European Solution

The activation of a Plan B presupposes the failure of a Plan A. That is why the renewed emphasis on national solutions should start alarm bells ringing in Brussels and across Europe. As described earlier on this blog, the Plan A focuses on a pan-European solution through hotspots, relocation, enhanced external border controls and cooperation with Turkey – and the EU institutions have done their best to move in this direction. New policies have been set up, often within weeks. But what worked well on paper all but flopped in practice. Representatives of local municipalities across Sweden, Germany and Austria that often had to set up accommodation centres for hundreds of people within days will feel mocked when reading the latest state of play about relocation or hotspots. They do not work despite massive financial and administrative support.

Of course, the EU institutions cannot be expected to single-handedly follow the desire of countries such as Germany, Austria, Sweden, Denmark, the Netherlands or Slovenia who jointly represent not even 30 % of the EU’s citizenry. Yet, they cannot ignore their political opposition either, not least since these countries welcome and accommodate the overwhelming majority of refugees. Without their support, the Common European Asylum System would collapse. Indeed, politicians have recently increased the pressure. Dutch Prime Minister Mark Ruttetold the European Parliament last week: ‘We’re running out of time. We need a sharp reduction in six to eight weeks.’

Against this background, the Austrian decision to designate an official upper limit, whose implementation has been postponed for the moment, can be perceived as a warning shot. In an interview with the Frankfurter Allgemeine Zeitung, theAustrian Foreign Minister Sebastian Kurz made clear that other countries should be aware of what is at stake: ‘The problem in recent months has been that the situation was fairly comfortable for many countries… We should not be surprised that Greece does little to protect the external borders for as long as refugees are transported, often with active EU support, to the Macedonian border within hours.’ That is certainly an exaggeration, but it signals that participants are getting nervous and that much is at stake

The Symbolic Climax: Closure of National Borders

What would a ‘Plan B’ look like? Closer inspection of the Austrian policy documentagreed upon last week and related policy debates in Germany show that it would almost certainly consist of a mix of diverse measures. The most drastic and symbolic step would be to reject asylum seekers at the border. This may happen unilaterally at the German-Austrian or the Austrian-Slovenian border, but it could also be organised plurilaterally in a sort of de facto ‘Mini-Schengen’, as reported by Der Spiegel, on the basis of joint German-Austria-Slovenian border control operations, possibly together with Croatia.

The immediate impact of such a step, the legal implications of which will be discussed below, would be a ‘domino effect’ with more and more states closing their borders along the Balkan route, thereby creating a backlog of refugees.Macedonia, in particular, prepares for closing its border with Greece, thereby effectively cutting Greece out of the Schengen zone – a step the Austrian Interior Minister threatened officially. Noticeably, the Austrian policy plan  instructs contingency planning for movements relocating westwards towards Italy and the alpine internal Schengen border on the Brenner pass. Let me be clear: I am not supporting a border closure, but rather attempting to give international readers an impression of what more and more people in central Europe are calling for.

An official border closure would move a decisive step beyond temporary border controls which had been reintroduced temporarily by both Austria and Germany last autumn. At present, controls function primarily as an ordering mechanism to manage asylum applications and to relocate refugees among municipalities. To this date, Germany does not reject anyone applying for asylum (although it started sending back those who do not wish to do so in Germany), while most other countries along the Balkan route continue the policy of ‘waving through’criticised by heads of state last autumn.

Within Germany, the current practice of allowing asylum applications at the border is often castigated for being illegal, including by the former president of the constitutional court Hans-Jürgen Papier and by a legal expert opinioncommissioned by the state of Bavaria. Although this position does not withstand legal scrutiny, it has a tangible effect on domestic debates. This is a dangerous development, since it undermines normative power of supranational law in domestic debates. It also ignores legal arguments, grounded in EU law, which could possibly be used to justify the rejection of asylum seekers at the border. Their interpretation may soon present the doctrinal mirror image of political debates about how to respond to a de facto collapse of the Schengen area.

The Legal Picture: (De-)constructive Ambiguity

A crucial difference between a purely national safe third country-rule and the pan-European Dublin system concerns rejection at the border. In a purely national system, Germany could refuse entry to anyone coming from a safe state (such as Austria) in line with Article 16a(2) of the German Constitution, while the Dublin III Regulation rejects unilateral negative decisions. The recitals of theoriginal Dublin Convention highlighted the objective to prevent applicants from being ‘referred successively from one Member State to another without any of these States acknowledging itself to be competent.’

Instead of unilateral rejections, states are expected to coordinate their behaviour. Most readers will know that Germany and Austria will not usually have jurisdiction under the Dublin rules. Instead, they may return asylum seekers to the state of first entry, namely Greece, Croatia or Hungary – although cooperation does not function at the moment. This entails that Germany and Austria must step in on behalf of others. That may partly be the outcome of the ‘welcome culture’ promoted by Germany and Austria last autumn, but this does not unmake the frustration prevailing among politicians and citizens: domestic policy options are legally curtailed by a system that does not work.

Does that mean that Germany and Austria have no option but to stick to the status quo? Closer inspection of the broader legal context of EU law shows that one could possibly justify a rejection at the border, at least temporarily. Firstly, states can reject those who do not want to claim asylum in the state they are trying to enter. In the absence of an asylum application, the Dublin III Regulation does not apply and border guards can refuse entry in line with Article 13 Schengen Borders Code – a practice the German border police has stepped up in recent weeks with more than 2000 rejections this year.

Secondly, one could argue that the term ‘border’ in Article 3 of the Asylum Procedure Directive designates external Schengen borders only, since the legislature had in mind the regular functioning of the Schengen and Dublin systems (along similar lines, the Commission argued at some point that border procedures under Article 43 of the same Directive only concern external borders). Without an option to apply for asylum at the border, states could legally reject entry to potential refugees. Their rights would not be diminished, since asylum applications can be made in the neighbouring state. A similar outcome could be justified under recourse to Article 20(4) Dublin III Regulation.

Thirdly, the Austrian government often highlights Article 72 TFEU on the maintenance of law and order (French: ordre public) and the safeguarding of internal security to justify at least a temporary suspension of the Dublin regime mirroring CJEUcase law on similar internal market rules. There are important counterarguments, including more specific public policy rules in secondary legislation, which may have to be interpreted generously in order to comply with the prescription of Article 72 TFEU in primary law. In the absence of case law, it is difficult to predict the outcome of corresponding disputes. The provision, therefore, lends the Austrian position some legal authority.

Fourthly, the German government promotes Article 3(3) of the Dublin III Regulation according to which states ‘shall retain the right to send an applicant to a safe third country’, although this shall occur ‘subject to the rules and safeguards laid down in Directive 2013/32/EU.’ The provision is undoubtedly meant to apply primarily vis-à-vis third countries, such as Serbia, and it also stipulates that procedural safeguards under the said Directive must be complied with. But it could be argued that the reintroduction of border controls together with the systemic collapse of the Dublin system along the Balkan route leaves Germany in a de facto external borders scenario vindicating the reactivation of the domestic safe third country-rule towards Austria, also taking into account Article 72 TFEU.

Finally, one could try to justify the same outcome beyond the confines of the supranational legal order by arguing, together with Kay Hailbronner, that international law-style reciprocity applies within the EU legal order, at least in situations of systemic collapse – a position the CJEU rejected on an earlier occasion, although it is legally cogent from the perspective of public international law. The same can be argued on the basis of domestic constitutional law by activating the constitutional caveats established by the German Constitutional Court in the infamous Lisbon judgment, which the expert opinion for the Bavarian state governments mentions as a potential justification.

Migration Policy and Legal Arguments

It is evident that none of the legal arguments presented above is beyond doubt. To the contrary, they remain doctrinally unstable and can be contested on various grounds. It may be precisely this ambiguity, however, that may prove constructive in the current scenario, since it gives governments in central Europe some options to respond to the unfortunate situation within the confines of the supranational legal order. This may prevent an outright rejection of compliance with Union law in central Europe, although some of my colleagues are promoting such openly anti-European behaviour.

One should also bear in mind that legal arguments are difficult to defend at this juncture for the simple reason that we are confronted with a systemic disrespect for the EU asylum acquis in many Member States. The most evident case is, of course, the Dublin system. NGOs will find it hard to pushthe Austrian and the German governments to comply with a regulation they have fought against for years. If we want our governments to comply with supranational rules, we have to ensure that transnational cooperation works again. The EU acquis must be applied in all Member States.

In order to avoid misunderstandings, I should underline that none of the above is meant to abrogate from the obligations of states under the Geneva Convention or the ECHR. We should be careful, however, not to misrepresent their meaning, since the Geneva Convention, in particular, is in essence about the prohibition of refoulement – not about the free choice of the country in which to apply for asylum. Recital 4 rightly reminds states that a ‘satisfactory solution cannot be achieved without international cooperation.’ It is this cooperation that is not working in Europe.

It may be good news, therefore, that the Commission may soon propose afundamental recast of the Dublin rules which may embrace the proactive designation of the Member State responsible after first entry. If that initiative fails, the CEAS could fall apart sooner rather than later. In the meantime, it may prove beneficial that the provisions discussed above could grant the governments of central Europe some leeway for national responses which could build a bridge until the successor to Dublin is functioning. Otherwise, inter-state borders in Europe will again be much more than fine black lines on maps. The picture post-Dublin would be a return to a world pre-Schengen.

 

EU-US “Umbrella agreement”on data protection: an interesting analysis of the US Congressional research service.

NOTA BENE : this blog has already published a detailed analysis of Professor DOUWE KORFF of the envisaged EU-US Umbrella agreement on data protection as well as a comment by Professor Peter SCHAAR a summary of important contributions for the European Parliament Civil Liberties Committee (LIBE) written by Professor Francesca Bignami and other researchers on the same subject. Following these contributions the EP committee has required a formal opinion to the EP legal service and that opinion will probably presented in the coming weeks. In the meantime it could be worth reading the Congressional Research Service document below which is notably focused on the limited scope of protection for the EU citizens even in case of adoption by the US Congress of the Judicial Redress act.

EDC

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INTERNAL NOTE CRS Reports & Analysis – Legal Sidebar

Judicial Redress Act 101 – What to Know as Senate Contemplates Passing New Privacy Law 01/21/2016  Update: The Senate Judiciary Committee delayed the markup on S. 1600, the Judicial Redress Act, previously scheduled for January 21, 2016.

Reports indicate that the Senate may soon vote on the Judicial Redress Act (JRA), a bill that could have major implications on transatlantic data flows and the global economy. The House of Representatives passed the JRA (H.R. 1428) in October (for the House Report on the JRA, see here), and the Senate is currently considering an identical version of the JRA (S. 1600). To understand why the JRA is important, it’s first worth discussing the underlying legislation that the JRA would amend: the Privacy Act of 1974.

The Privacy Act generally regulates how the federal government collects, uses, and discloses “records” – a term of art defined by the Act to refer to information possessed by a federal agency that contains individual identifying information. The Privacy Act provides for civil remedies by private parties to help enforce its provisions in four situations:

  1. when an agency refuses to amend an individual’s record;
  2. when an agency refuses to provide access to an individual’s record;
  3. when an agency has failed to maintain certain records in an accurate, relevant, timely, and complete manner,

resulting in an “adverse effect” on an individual; and

  1. when an agency fails to comply with “any other provision” of the Act or rule promulgated pursuant thereunder resulting in an “adverse effect” on the individual.

The Privacy Act as currently written is limited to the records of an “individual,” a term the Act defines as a “citizen of the United States or an alien lawfully admitted for permanent residence.” As a result, a foreign national who is not lawfully admitted for permanent residence and believes a federal agency is failing to comply with the Privacy Act with respect to his record currently has no judicial recourse under the 1974 law.

The JRA generally would amend the Privacy Act to expand the number of eligible Privacy Act plaintiffs under certain, narrow circumstances to a limited group of foreign nationals. The JRA would not allow every foreign national to obtain civil relief under the Privacy Act; instead the JRA would expand the Act to cover foreign nationals from countries specifically designated by the Attorney General because of formal or informal information sharing arrangements respecting transnational crime. Moreover, even if a foreign national is from a designated country, not all four categories of Privacy Act civil actions are made available by the JRA; instead the proposed legislation would allow foreign nationals to proceed under categories (1) or (2) only if the information at issue was possessed by a designated federal agency that receives information from the foreign national’s home country because of a formal or informal information sharing agreement between the United States and the home country. In addition, the JRA would allow a covered foreign national to pursue one specific cause of action under category (4)—the JRA would allow a plaintiff to recover actual damages if a plaintiff can prove that a federal agency has intentionally or willfully disclosed a covered record without written consent. Finally, the JRA does not allow a covered foreign national to pursue claims with respect to any record; instead the bill would only cover records that have been transferred by an entity within the foreign national’s home country for the purpose of “preventing, investigating, detecting, or prosecuting criminal offenses.”

Attention has centered on the JRA following a major ruling by the European Court of Justice of the European Union (CJEU) invalidating the U.S.-E.U. Safe Harbor Agreement, which generally permitted companies to transfer personal data from the E.U. to the U.S.

The decision centered on an interpretation of the E.U.’s 1995 Data Protection Directive (Directive) which requires member states to establish privacy laws that would bar the transfer of personal data to non-E.U. countries that fail to provide an “adequate” level of privacy protections. The Directive permits the European Commission (EC), an executive body within the E.U., to make general determinations regarding whether other countries offer the needed level of protection in their domestic laws or international commitments. To ensure compliance with the Directive, in the late 1990s, the Department of Commerce and the EC negotiated the Safe Harbor agreement which permits an American company to receive E.U. citizens’ data if it meets certain privacy principles. In order to join the Safe Harbor, a U.S. company typically must self-certify to the Department of Commerce that it will abide by the Safe Harbor principles. Companies that do so were formerly assumed to meet the Directive’s adequacy standard for privacy protection. The EC approved the Safe Harbor agreement in 2000.

On October 6, 2015 the CJEU invalidated the 2000 EC decision approving the Safe Harbor agreement. The Court first determined that even when the EC has concluded that a non-E.U. country has adopted procedures satisfying the adequacy requirements of the Directive, the EC’s determination does not prohibit individual E.U. countries’ data authorities from examining claims that that country nonetheless is failing to provide an adequate level of protection of personal data. Second, the CJEU, interpreting the adequacy standard to necessitate that a non-EU country receiving E.U. data have privacy laws that are the functional equivalent to those in the E.U., raised several concerns about the Safe Harbor agreement, including recent disclosures about the U.S. government’s surveillance activities and the lack of judicial redress in U.S. courts for European citizens’ whose data has been collected by the government. Ultimately, the CJEU found that the EC’s decision approving Safe Harbor did not comply with the Directive because the Commission did not determine whether the United States ensures an adequate level of protection for personal data. While supporters of the JRA hope that providing legal redress in U.S. courts for European citizens whose data is collected by U.S. companies may be a step toward providing the adequate privacy standards required by E.U. law, the question remains whether the JRA, which is focused on providing a limited number of foreign nationals a cause of action under the Privacy Act for information transferred with respect to transatlantic criminal investigations, would satisfy the CJEU’s broader concerns about United States privacy law. (EMPHASIS ADDED)

In addition to the Safe Harbor agreement, the JRA is seen as integral to ongoing negotiations between the United States and Europe concerning data transfers in the context of law enforcement investigations. To that end, the parties have been negotiating the so-called “Umbrella Agreement,” which will regulate all personal data exchanged between the United States and the European Union for the purposes of “prevention, investigation, detection, or prosecution of criminal offenses, including terrorism.”

A critical issue for the E.U. in these negotiations has been access to judicial redress in U.S. courts for European citizens, a provision that was included in the recently released draft agreement. However, it appears that the agreement will not be signed and formalized unless the United States enacts the JRA or a functional equivalent.

Currently, requests and transfers of data between the United States and the member-states of the European Union for purposes of law enforcement investigations are primarily governed by Mutual Legal Assistance Treaties (MLATs) or letters rogatory.

Additionally, various other international agreements, such as the Terrorist Finance Tracking Program (TFTP) and the Passenger Name Record (PNR) Agreement, regulate the request and transfer of data between the United States and Europe in the context of law enforcement investigations. The Umbrella Agreement, which is intended to “supplement” but “not replace” these existing international agreements, would create rules governing, among other things, the purpose and use of collected data; transfers to third-party countries; security measures to protect destruction, loss, or disclosure of data; notification of security breaches; and administrative and judicial redress.

(For a more detailed discussion and analysis of the CJEU Safe Harbor decision and the JRA, CRS has published a general congressional distribution memorandum that is available upon request).

The German Constitutional Court and the European Arrest Warrant: The latest twist in the judicial dialogue

*Reblogged from the ‘Despite our Differences’ (Wednesday, 27 January 2016)

by Daniel Sarmiento, *

The German Constitutional Court (GCC) has fired again, and now in the always sensitive area of fundamental rights. In an Order published yesterday, the GCC has undertaken an “identity control” over the implementation of a European Arrest Warrant (EAW) issued by Italian authorities and intended to be executed in Germany. The person concerned, a US national convicted in Italy in absentia, claimed that his conviction had been ruled without any guarantees, and now, under Italian law, nothing can stop the enforcement of his conviction. Italian procedural law does not provide a remedy at this point.

The GCC has applied, for the first time, its “identity control” to a case fully covered by EU Law. Therefore, the review by the GCC of the challenged judgment, which implemented the Framework Decision and the German implementing act, entailed an indirect review of the Framework Decision itself. The GCC reminds the reader of its traditional case-law on “identity control” and comes to the conclusion that in this particular case it is perfectly possible to do it. In the end, it quashes the decision of the instance court but it states that the Framework Decision and the German implementing act are perfectly in line with the solution it comes to.

I completely agree.

The trial in absentia that took place in Italy was clearly in breach of Convention (ECHR) rights, because the accused had not been informed of the date of the hearing, he was not represented by a lawyer, etc… In other words, the trial was a mess. This contrasts with the facts in the case of Melloni, in which the CJEUruled that the Spanish Constitutional Court could not apply the higher standards of its national constitutional law in order to block the execution of an EAW issued by Italy. On that case, Mr. Melloni had been sentenced in absentia but scrupulously following the minimal conditions required by the Convention. The case before the GCC is a good example of how not to handle a trial in absentia. Therefore the Framework Decision entitles Member States to refuse the enforcement of decisions enacted under such terms.

Therefore, what is the fuss? Why has the GCC made an “identity control” when the Framework Decision solves the case anyway in the same terms?

It seems as if the GCC is sending a message to Luxembourg: it is not willing to buy the Melloni case-law. Therefore, the Court of Justice’s approach in that case to Article 53 of the Charter, which imposes Charter levels of protection in cases totally determined by EU Law (i.e., with no discretion for Member States), is not going to be an easy ride. The GCC is clearly stating that it will undergo “identity control” in any case covered by EU Law, including in areas totally determined by European rules that lower the levels of protection enshrined under national law.

Therefore, it is a harmless judgment on the facts, but a very important one on the symbolic side. In fact, the decision is perfectly in line with the decision of the Spanish Constitutional Court in Melloni, in which the Spanish court decided to lower the domestic level of protection of the right to a fair trial, but not on the grounds of EU Law. The Spanish court highlighted that the judgment of the Court of Justice in Melloni was “a very useful reference”, but not a binding decision. In the end, the Spanish court followed the Luxembourg criteria, but on the sole grounds of the Spanish Constitution. Now the GCC is saying pretty much the same thing, but through the sophisticated means of “identity control”.

This is an unsurprising turn of events. Constitutional Courts have been protagonists of the fundamental rights narrative for more than half a century in Europe. In the case of Germany, Spain, Portugal or Italy, Constitutional Courts have been the guardians of human rights in States with a dubious past track-record in this matter. These are therefore powerful and relevant courts with an important tradition, and they are not willing to step back. European integration is side-lining them, but the events taking place in Europe (and everywhere in the world) are so serious that Constitutional courts feel a duty to keep acting as guardians. This attitude might be interpreted as a sign of nationalism, but it can also be the confirmation of the importance of the issues being now handled by the EU: data protection, the fight against terrorism, immigration, the euro and financial assistance of Member States, etc… Why would these courts decide to become irrelevant now, at a time in which the challenges ahead are as relevant or even more important than those they have faced in the past?

In my opinion, this should not be a cause of concern, but only as long as the Court of Justice handles the situation with care and intelligence. It did a good job in the OMT case (discussed here), but it is obvious that the area of fundamental rights is a thorny one that poses many challenges. Akerberg Fransson andMelloni were a brave but risky start, shortly followed by some cautious decisions. However, Opinion 2/13 and the inability of the Court of Justice to adjust to a future ECHR accession of the EU, including Strasbourg external control, is a damaging and clumsy move that has only made Constitutional courts frown. If they are subject to Strasbourg control, why can’t the Court of Justice accept it too? Many Constitutional Courts are perfectly entitled to think “what are they scared of in Luxembourg?”.

It will not be easy for the Court of Justice to come out of the situation created byOpinion 2/13. However, the Charter is still a very valuable instrument, a source of endless inspiration that could help the Court seduce national Constitutional Courts in the years to come. Also, the current events taking place in Poland are another good opportunity for the Court of Justice to prove how far it is willing to go in assisting national Constitutional courts that come under attack. The current situation is a difficult one, but the Court of Justice has the authority, prestige and background needed to face the challenge.

The GCC has fired once again, but it would be a very reductionist reaction to simply say that it is a mindless and nationalistic claim from Karlsruhe. On the contrary, this is yet another reminder for the Court of Justice of the importance of fundamental rights, and of the importance of its role as interpreter of the Charter. In other words, this is another opportunity for the Court of Justice to forget that phrase so frequently used by its judges in public lectures, according to which “we are not a fundamental rights court”. Whether they like it or not, they have become one. The longer they stubbornly resist this reality, the more painful the awakening will be.

  • Professor of EU Law at the University Complutense of Madrid*

BVG : Protection of Fundamental Rights in Individual Cases is Ensured as Part of Identity Review

Press Release No. 4/2016 of 26 January 2016

Order of 15 December 2015 – 2 BvR 2735/14

In individual cases, protection of fundamental rights by the Federal Constitutional Court may include review of sovereign acts determined by Union law if this is indispensable to protect the constitutional identity guaranteed by Art. 79 sec. 3 of the Basic Law (Grundgesetz – GG).

Such was the decision by the Second Senate of the Federal Constitutional Court with regard to the principle of individual guilt (Schuldprinzip) in an order published today.

Under this principle, any criminal sanction presupposes that the offence and the offender’s guilt are proven in a procedure that complies with the applicable procedural rules. The principle of individual guilt is rooted in the guarantee of human dignity enshrined in Art. 1 sec. 1 GG. It therefore also has to be guaranteed in the context of extraditions pursuant to the Framework Decision on the European arrest warrant if they are meant to ensure the execution of sentences that have been rendered in the absence of the requested person.

Based on these standards, the Senate reversed and remanded an order of the Düsseldorf Higher Regional Court (Oberlandesgericht) to extradite a US citizen to Italy where he had been sentenced in absence to a custodial sentence of thirty years. The complainant’s submission that, in Italy, he would not be provided with the opportunity of a new evidentiary hearing in which he would be able to be present requires further investigations by the Higher Regional Court.

Facts of the Case and Procedural History:

The complainant is a citizen of the United States of America. In 1992, by final judgment of the Florence Corte di Appello, he was sentenced in absence to a custodial sentence of thirty years for participation in a criminal organisation and import and possession of cocaine.

In 2014, he was arrested in Germany on the basis of a European arrest warrant. In the context of the extradition procedure, he mainly submitted that he did not have any knowledge of his conviction and, and that, under Italian law, he would not be able to have a new evidentiary hearing in the appeals pro-ceedings. Nevertheless, by the challenged order of 7 November 2014, the Higher Regional Court declared the extradition of the complainant to be permissible.

Key Considerations of the Senate:

The challenged decision violates the complainant’s right under Art. 1 sec. 1 GG.

1. a) As a rule, sovereign acts of the European Union and acts of German public authority – to the extent that they are determined by Union law – are, due to the precedence of Union law (Anwen-dungsvorrang des Unionsrechts), not to be measured against the standard of the fundamental rights enshrined in the Basic Law. However, precedence only applies insofar as the Basic Law and the Act of Assent permit or provide for the transfer of sovereign rights. Its scope is limited by the Basic Law’s constitutional identity that, according to Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG, is neither open to constitutional amendments nor to European integration (verfassungsänderungs- und integrationsfest).

b) The identity review conducted by the Federal Constitutional Court safeguards the constitutional identity. As with ultra vires reviews, [identity] reviews may ultimately result in Union law having to be declared inapplicable in exceptional cases. To prevent German authorities and courts from simply disregarding the Union law’s claim to validity, applying Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG in a manner that is open to European integration and the legal concept expressed in Art. 100 sec. 1 GG both require that declaring a violation of the constitutional identity is reserved for the Federal Constitutional Court.
In substance, identity review is a concept inherent in Art. 4 sec. 2 sentence 1 of the Treaty on European Union (TEU) and does not violate the principle of sincere cooperation within the mean-ing of Art. 4 sec. 3 TEU. The European Union is an association of sovereign states (Staaten-verbund), of constitutions [Verfassungsverbund; sometimes referred to as multilevel constitution-alism], of administrations (Verwaltungsverbund) and of courts [Rechtsprechungsverbund; some-times referred to as multilevel cooperation of courts], which is founded on international treaties concluded by the Member States.  As “masters of the treaties” (Herren der Verträge), Member States decide through national legal arrangements if and to what extent Union law is applicable and is accorded precedence in the respective national legal order. It therefore does not contradict the openness of the Basic Law to European integration if the Federal Constitutional Court, in exceptional cases and subject to strict conditions, declares an act of the European Union to be inapplicable in Germany. The fact that identity review is a concept inherent in the treaties is additionally corroborated by the fact that the constitutional law of many other Member States contains provisions to protect the constitutional identity and to limit the transfer of sovereign rights to the European Union.

This does not entail a substantial risk for the uniform application of Union law, as the powers of review reserved for the Federal Constitutional Court have to be exercised with restraint and in a manner open to European integration. To the extent required, the Federal Constitutional Court will base its review of the European act in question on the interpretation provided by the Europe-an Court of Justice in a preliminary ruling under Art. 267 sec. 3 of the Treaty on the Functioning of the European Union (TFEU).

c) The constitutional […] identity […] includes the principles of Art. 1 GG. The protected interests that, according to Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG, are not open to integration must not be touched. Against this backdrop, the Federal Constitutional Court, by way of identity review, guarantees, unconditionally and in any individual case, the protection of fundamental rights that is indispensable according to Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 and Art. 1 sec. 1 GG.

d) The strict conditions that must be fulfilled for conducting an identity review are mirrored by an elevated threshold with regard to admissibility requirements for constitutional complaints in such cases. The complainant has to submit in detail and in a substantiated way to what extent the guarantee of human dignity is violated in the specific case.

2. The challenged decision by the Higher Regional Court transgresses the limits drawn by Art. 1 sec. 1 in conjunction with Art. 23 sec. 1 sentence 3 and Art. 79 sec. 3 GG.

a) The execution of the Framework Decision on the European arrest warrant may violate a complainant’s fundamental right enshrined in Art. 1 sec. 1 GG, because, from the perspective of German constitutional law, an extradition for the purpose of executing a sentence rendered in absence enforces, through criminal law, a reaction to socio-ethical misconduct, a reaction that is incompatible with the guarantee of human dignity and the rule of law (Rechtsstaatsprinzip) unless the accused’s individual blameworthiness (individuelle Vorwerfbarkeit) has been determined by the competent court.

aa) In Germany, criminal law is based on the principle of individual guilt, which is enshrined in the guarantee of human dignity and in the rule of law (Art. 20 sec. 3 GG) and which, due to Art. 79 sec. 3 GG, is part of the inalienable constitutional identity. The effectiveness of the principle of individual guilt is at risk if it is not ensured that the true facts of the case are determined. To mete out an appropriate sanction that also constitutes a socio-ethical reproach (sozial-ethischer Vorwurf) presupposes that the personality of the accused is taken into account and, therefore, as a rule, that the accused is present at the trial. It follows from the principle of individual guilt that minimum guarantees of the rights of the accused in criminal trials are needed, guarantees that ensure that the accused may present circumstances for consideration to the court, circumstances that may be exonerating or relevant for sentencing. The minimum guarantees of the rights of the accused in criminal trials that are mandated by the principle of individual guilt also have to be observed when deciding on an extradition executing a sentence rendered in the absence of the requested person.

bb) The court that decides on an extradition is under the obligation to investigate and establish the facts of the case, an obligation that also falls within the scope of Art. 1 sec. 1 GG. The relevant facts in particular include what kind of treatment the requested person will have to expect in the requesting state. It does not follow from this obligation that the German courts always have to review in detail the reasons for a request for extradition. This holds true in particular in the context of extradition proceedings within Europe, where the principle of mutual trust applies. However, this trust is shaken if there are factual indications that the requirements that are absolutely essential for the protection of human dignity will not be met if the requested person is extradited. The court that decides whether it is permissible to extradite the requested person is in this respect under an obligation to investigate the legal situation and the legal practice of the requesting state if the person concerned has submitted sufficient indications to warrant such investigations. The extent and the intensity of investigations, which the German court must conduct in this regard in order to ensure the respect of the principle of individual guilt, have to be determined in accordance with the nature and the significance of the indications submitted by the convicted person that the procedure falls below the minimum standards required by Art. 1 sec. 1 GG.

b) Safeguarding the principle of individual guilt, which is not open to European integration, justi-fies and requires a review according to the standard of the Basic Law of the Higher Regional Court’s decision, a review that is limited to procedural minimum rights. This is the case although the Higher Regional Court’s decision is determined by Union law. As a rule, the Framework De-cision on the European arrest warrant is accorded precedence in the German legal system; accord-ing to the jurisprudence of the Court of Justice of the European Union, the Framework Decision exhaustively deals with extraditions following sentences rendered in absence of the requested person; this, however, does not relieve the Higher Regional Court from its obligation to ensure that the principles laid down in Art. 1 sec. 1 GG, in its manifestation as principle of individual guilt, are protected in the context of an extradition based on a European arrest warrant as well.

c) In the present context, however, there is no need for restricting the precedence of Union law by applying Art. 79 sec. 3 GG in conjunction with Art. 1 sec. 1 GG as the Framework Decision and the German Act on International Cooperation in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen) require an interpretation that takes into account the minimum guarantees of the rights of the accused that are required by Art. 1 sec. 1 GG in the context of an extradition.

aa) The obligation to execute a European arrest warrant is already limited under Union law. According to Union law standards, a European arrest warrant is not to be executed if it does not meet the requirements stipulated by the Framework Decision, or if the extradition would entail a violation of Union fundamental rights. Art. 4a sec. 1 letter d (i) of the Framework Decision pre-scribes a procedure that allows for [the German version of the Framework Decision uses the word “kann”] the merits of the case, including fresh evidence, to be re-examined, and which “may” [the German version of the Framework Decision uses the word “kann”] lead to the original decision being reversed. This provision does not provide for discretion of the courts dealing with such a case; rather, the term “may” is used to describe the powers of the court and signifies more or less “to be able to” („in der Lage ist“). The fact that the member states of the European Union are bound by the Union fundamental rights, that the Charter of Fundamental Rights has an effect on secondary Union law, and the jurisprudence of the European Court of Human Rights argue in favour of such an interpretation, as well.

The fact that the principle of mutual trust does not apply without limits even according to Union law also signifies that the national judicial authorities, upon relevant indications, are authorised, and under an obligation, to review whether the requirements under the rule of law have been complied with, even if the European arrest warrant formally meets the requirements of the Framework Decision. Also under a Union law perspective, an effective judicial review presupposes that the court that decides about the extradition is able to conduct the relevant investigations as long as the extradition system established by the Framework Decision remains effective in practice. As a consequence, the requirements under Union law with regard to the execution of a European arrest warrant are not beneath those that are required by Art. 1 sec. 1 GG as minimum guarantees of the rights of the accused.

bb) In this respect, the Act on International Cooperation in Criminal Matters that transposes the Framework Decision into German law does not raise concerns with regard to the principle of in-dividual guilt and its contents protected by the guarantee of human dignity.

d) The challenged decision by the Higher Regional Court does not fully meet these requirements.

aa) While the Higher Regional Court’s assessment that the complainant’s extradition is only per-missible if he is provided with an effective legal remedy after his surrender is correct, the court failed to recognise the extent of its obligation to investigate and to establish the facts and thereby failed to recognise the significance and the scope of Art. 1 sec. 1 GG. In executing the Frame-work Decision on the European arrest warrant and the Act on International Cooperation in Criminal Matters, the courts have to ensure in every individual case that the rights of the requested per-son are safeguarded at least to the extent that the content of the rights is protected by Art. 1 sec. 1 GG. With regard to the principle of individual guilt, this includes that a requested person who has been sentenced in his or her absence and who has not been informed about the trial and its conclusion will at least be provided with the real opportunity to defend him- or herself effectively after having learned of the trial, in particular by presenting circumstances to the court that may exonerate him or her and by having them reviewed.

bb) The complainant asserted in a substantiated manner that the Italian procedural law does not provide him with the opportunity to have a new evidentiary hearing at the appeals stage. This assertion is corroborated by the fact that in the past several Higher Regional Courts refused to permit extraditions to Italy in cases in which the requested persons had been sentenced in their absence, arguing that under Italian law there was, at the appeals stage, no comprehensive judicial review of the decision on the merits. The Higher Regional Court was under an obligation to fol-low up on the substantiated and plausible objections made by the complainant. However, it con-tented itself with finding that a new evidentiary hearing in Italy “was at least not impossible” („jedenfalls nicht ausgeschlossen“). Its decision therefore violates the complainant’s rights under Art. 1 sec. 1 GG.

3. There is no need for a preliminary request to the European Court of Justice under Art. 267 TFEU. The way in which the Union law must be applied correctly is that obvious that there does not remain any room for reasonable doubts (acte clair). Consequently, there is no conflict be-tween Union law and the protection of human dignity under the Basic Law in the case at hand.

INFORMAL MEETING OF MINISTERS OF JUSTICE AND HOME AFFAIRS

Amsterdam, 25th – 26th January 2016

PROGRAMME (version 21-1-2016)

Monday January 25   Home Affairs and Migration

09.00 – 10.45   Session I Home Affairs, Security (Counterterrorism)
11.15 – 12.15   Session II Home Affairs, Security (Counterterrorism)
12.15 – 12.30  Session III Home Affairs, Security (presentation cyber security)
13.00 – 14.30   Working lunch (EU and COMIX Ministers Home Affairs and Migration only)
14.30 – 16.00   Session IV Migration
16.30 – 17.30   Continuation session IV Migration
17.45 – 18.30   Press conference

Tuesday January 26 Justice

08.15 – 09.15   Breakfast ECRIS (Ministers of Justice only)
09.30 – 11.00   Session V Cybercrime (jurisdiction)
11.00 – 11.30   Family photo and coffee break
11.30 – 12.35   Continuation session V Justice Cybercrime (jurisdiction)
12.35 – 12.45  Presentation by European Commission proposals contract law and insolvency
13.00 – 14.30 Working lunch on the European Forensic Science Area
14.45 – 15.15   Press conference

PAPERS FOR DISCUSSION

Discussion Paper European Border and Coast Guard

In order to have an area without internal border controls within the Schengen area, an efficient and well-functioning control of the external borders of the Schengen area is essential.
The control by each Schengen Member State and Associated State of its parts of these external borders is not only in the interest of that Member State (MS), but in the interest of all.
Border control is necessary to prevent illegal immigration and crossing of the borders by persons who pose a threat to the public order or security of MS or the Schengen area.
Our citizens expect us to carry out this task, and will lose their confidence in Schengen if we don’t. MS are not only controlling their external borders in their own interest, but in the interest of all EU citizens.
Since the conclusion of the Schengen Treaty in 1985, the Schengen States (and later the EU) have worked on a broad range of legislative and policy instruments with the goal of creating common rules (Schengen Borders Code), common practices (Frontex, Schengen Evaluation Mechanism) and common tools (SIS, VIS, Eurosur) for managing the external borders.

The Integrated Border Management (IBM) concept has been a leading principle when developing these new instruments.
A true Integrated Border Management requires cooperation and genuine solidarity and sharing of responsibility among MS, which is reflected at EU level by the creation of Frontex in 2004 and funding possibilities under the Internal Security Fund.
Solidarity however comes with responsibility.
The main and final responsibility for border management is with the MS. Until now, this has worked relatively well in the ‘normal’ situation which we have experienced most of the time since the Schengen area was created.

Since last summer we are facing a different situation.
The constantly increasing pressure of (irregular) migration at the EU’s external border and present security threats within and outside the EU have shown that the existing border management tools are not sufficient to guarantee an efficient integrated border management. This puts the question on the table of what should be done to change the concept in a way to equip the EU and Schengen to counter these challenges effectively.
On 15 October 2015 the European Council set out clear political guidance to strengthen the EU external borders, especially in emergency situations. The European Council concluded that this must be done by enhancing the mandate of Frontex in the context of discussions over the development of a European Border and Coast Guard System.
On 15 December 2015 the European Commission presented its “border management package”, which contains a Communication on a European Border and Coast Guard and effective management of Europe’s external borders associated with a number of proposals and measures, including in particular the proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard.

The proposal is the main element in the Commissions’ response to address the current situation and aims at making border management more effective, reliable and to enable the EU to intervene to prevent and resolve crises, by proposing a new framework for border management.
The proposal does not replace the national border guards, but puts them within this new framework in order to achieve a more integrated management of Europe’s external borders, as foreseen by Art. 77(2)(d) TFEU.
The proposal lays down the general principles of genuine European integrated border management (IBM). It establishes a European Border and Coast Guard, with a strengthened agency, named the European Border and Coast Guard Agency, being a key player in the system.
With the establishment of the European Border and Coast Guard, the IBM becomes a shared responsibility of the Agency and the national authorities responsible for border management, as proposed in the European Agenda on Migration and the European Agenda on Security.
The Netherlands Presidency is convinced of the importance of this file and reiterates the conclusion of the European Council of 17 December 2015, stating that a Council position on the proposal on a European Border and Coast Guard should be adopted under the Netherlands Presidency.
With a view to fulfilling this task given by the European leaders, it is suggested that the file is discussed during the informal meeting of JHA ministers in order to give a political steer to expert work at the Council on the below main elements of the Commissions’ proposal, in relation to situations requiring urgent actions on the external borders.
 

  1. Defnition of the European integrated border management (IBM) concept in the proposal for a Regulation, and introduction of the principle of ‘shared responsibility’

A European Border and Coast Guard is set up bringing together the European Border and Coast Guard Agency and the MS authorities responsible for border management.
The national coastguard authorities are also part of the EU Border and Coast Guard in so far as they perform maritime border surveillance. The European Border and Coast Guard will ensure the full and coherent implementation of the European IBM.
The national border guard authorities will continue performing their regular functions on a daily basis at national level. However, in exceptional situations, the European Border and Coast Guard Agency will have a capacity to act in order to ensure the protections of the affected sections of the external border.
In this context, the MS will have the obligation to make available a certain percentage of their border guards to be deployed by the Agency. MS are also required to register in the Agency’s technical equipment pool. Furthermore, to ensure the implementation of the European IBM, the mandate of the Agency is strengthened.

Questions:

  1. What is needed to effectively protect our external borders, including security aspects and screening?
  2. Do you agree that the European Border and Coast Guard (European Border and Coast Guard Agency and MS authorities) should carry a ‘shared responsibility’ for implementing the EU IBM as proposed?
  3. Do you agree that the principle of ‘shared responsibility’ should bring the obligation for MS to contribute a certain percentage to a pool of officers and to a pool of equipment in order to bring the Agency in the position to act more pro-actively, flexible and effective?

 

  1. The introduction of a vulnerability assessment

In parallel to the ‘stress test’ in the Banking Union, the Commission proposes a system to ensure that the European Border and Coast Guard has the capacity and means to be ready to face challenges at the external borders. The Agency will have the mandate to carry out a vulnerability assessment in order to assess the capacity of MS to face challenges at their external borders, including by means of an assessment of the equipment and resources of MS as well as of their contingency planning.

On the basis of this assessment the Agency will identify and decide on measures that need to be taken by the MS. This decision will be binding. In case a MS concerned fails to act, the mater will be referred to the management board of the Agency.

Questions:

  1. Do you agree that a vulnerability assessment should be carried out in order to ensure that a MS and/or the European Border and Coast Guard is ready to face upcoming challenges at the external borders? Should the Agency carry out this assessment on its own or should MS be involved?
  2. Do you agree that this assessment could lead to a decision by the Executive Director of the Agency and, where necessary, a further decision by the Management Board of the Agency, with regard to the Member State concerned to take corrective measures concerning technical equipment, systems, capabilities, resources and contingency plans? Should this decision be binding?
  1. The right to intervene in case of a situation at the external border requiring urgent action

The Commission proposes a new procedure to address deficiencies rendering the control of the external borders ineffective to such an extent that it risks putting in jeopardy the functioning of the Schengen area.
This procedure can be applied in case a MS has not taken corrective measures decided by the Management Board of the Agency, or in case of disproportionate migratory pressure at the external border.
The Commission can adopt an implementing decision providing for measures such as for example organizing rapid border interventions and deploying European Border and Coast Guard Teams. The Member State concerned is required to comply with the Commission decision and cooperate with the Agency for that purpose.
This applies even when there is no request from a Member State for assistance; however, the operational plan of the operation will have to be drawn up in cooperation with the MS concerned.

Questions:

  1. What remedies/measures should be taken regarding the Member States concerned in the situations referred to?
  2. Can Member States agree to a solution based on the proposal made by the Commission in order to prevent a situation meant in article 26 Schengen Borders Code?
  3. What should be the role of the Council in that situation?

 

Discussion Paper on counterterrorism

Information exchange on foreign terrorist fighters, firearms and precursors

Over the last decade the EU and its Member States, European and international bodies, have made much effort at the political, legal and operational level to improve information exchange on counterterrorism. In recent years the foreign terrorist fighters issue has been a particular focus. Member States have committed themselves several times to increasing the exchange of information.

Recent events and terrorist attacks as well as statistics on input of information in the various systems on EU-level have led us to conclude that there still is room for improvement in effective information exchange between our competent authorities and with European or international bodies. Two dimensions are essential to reach this: quantity, but also quality of information (contextual information concerning foreign fighters and their support networks especially), in order to identify new lines of investigation and to help prevent terrorist attacks and counteract related activities.

A high level of combined expertise and a correct and uniform (standardized) application of systems is crucial. Any challenges and obstacles that still prevent an effective and comprehensive practice must now be eliminated. Whether these lie at political, legal, operational or technical level, concrete and tangible steps must be taken to better facilitate our national competent authorities and European or international bodies.
This includes the exchange of information between security services and their respective national law enforcement services, between migration and law enforcement services, or between law enforcement and customs authorities.
The Presidency would like to discuss 1 the remaining underlying obstacles for information exchange on foreign terrorist fighters and ways forward to clear these obstacles, along the lines of the following questions:

  1. Given the specific safeguards in the handling of information (such as privacy considerations, source protection) which obstacles do you encounter in the exchange of information between national counterterrorism actors in your country and how does this affect co-operation and information exchange from your country with other European partners?
  2. Would you qualify defining common measurable deliverables for input into European systems as necessary in order to achieve an effective practice?
  3. What kind of common standards do you consider useful to improve the exchange of actionable information? Examples are timing, quality and additional background information. In which way could investments in collaboration and trust, or secure ICT solutions, support further improvement on current exchange practices? Which additional actions would you like to propose?
  4. Would you qualify a uniform (standardized) approach to the implementation and use of detection and signalling systems (such as the SISII, Interpol diffusions) as a vital element in stopping foreign terrorist fighters? In your experience, how are competent authorities best aided in acting upon the alerts entered into or resulting from such detection and signaling systems? In which way could the implementation or use be improved?

 

Another issue that will be addressed is information sharing between Member States on firearms and explosives precursors.

The revision of the firearms directive aims to establish a stricter regime for (the sale and purchase of) firearms and a more uniform practice within the EU.
Illegal arms trade, including via the internet, is the next target-area for EU Member States in partnership with Europol’s Counter Terrorism Centre. National law enforcement agencies have stepped up their intra-EU cooperation and shared more information on their national law enforcement efforts to combat the flow of illegal arms. This includes improved information sharing between organized crime and CT investigations. We have to look for further improvements.
Currently, information sharing on explosives precursors with a (possible) international dimension is ad hoc and limited.

This is especially problematic for online trade: it is of key importance that suspicious behaviour is immediately reported to the country of delivery (and not only the country where the internet company is established).The effect and value of the existing reporting structures on these suspicious transactions of explosives precursors can be strengthened by organizing information sharing between the national contact points. Other ways to alter this situation is to organize information sharing on licenses, as well as inspection and law enforcement practices.
This is especially relevant for customs authorities, so that they can properly check parcels and where appropriate passengers. In this regard, cooperation on national level among all stakeholders involved, including customs authorities and border guards, is important.

  1. In addressing better information sharing on firearms and explosives precursors, which capability gaps do you perceive, if any?
  2. Would an EU reporting structure be helpful to prevent the use of precursors for explosives, also in view of informing foreign law enforcement authorities in time? Please elaborate.

Comprehensive local approach

Terrorist organizations target urban areas in an effort to destabilize European society. As recent attacks in Europe have shown, some of the terrorists executing these atrocities, grew up in these cities. Law enforcement agencies and intelligence services work around the clock to prevent threats to national security and track down terrorists.
National and local authorities are combating these terrorist groups and the dissemination of their violent ideas and are trying to prevent the growth of new adherents.
In many EU Member States local authorities are the first line of defence in countering violent extremism. During this informal JHA Ministerial meeting we want to focus on the importance of local approaches as part of national CT-strategies and discuss how we can strengthen them within the EU.
Most of the local approaches in place center around the premise that combating terrorism and preventing radicalization is best addressed throughout a targeted strategy in which national and local authorities are partners. Goals of a local approach can be to strengthen the resilience of communities in cooperation with e.g. schools and social networks, to invest in risk assessments and early warning mechanisms and to create possible intervention tools.
These interventions can vary from multidisciplinary case-management to an administrative, a criminal justice or an intelligence measure.
In every scenario a solid information position and information sharing is crucial. This also concerns a sustainable and active relationship with the local communities. Local governments are addressing many dilemmas while developing these strategies.

We would like to address the following questions:

  1. Does your national CT strategy include a local approach? What are the main characteristics of your local approach? Do you have best practices to share with other Member States? Do you encounter challenges in developing an efective local approach?
  2. Would you asses a local approach to be most efective when it is multidisciplinary, and contains ‘preventive’ and ‘repressive’ measures? If so, which local partners should be included in a local approach?
  3. How can Member States share information, experience and best practices about a local approach? Do you need EU support (for example through the Radicalization Awareness Network Centre of Excellence) to further implement a local approach and, if so, what kind of support?

 Discussion Paper on tackling cybercrime

The criminal use of cyberspace

Cyberspace is borderless. Information flows freely between countries providing citizens and organisations almost unlimited access to information and digital services. Information is everywhere; the physical location of the servers on which it is stored is often not known and deemed irrelevant to users.
Information can be stored, changed and deleted, and internet services can be used from anywhere in the world. Cyberspace has grown into an essential element of modern life.
The protection of cyberspace from incidents, malicious activities and misuse has become crucial for the functioning of our societies and economies.
The borderless nature of cyberspace poses special challenges and opportunities for law enforcement and judicial authorities. Important information for law enforcement and judicial authorities, such as electronic evidence, can also be stored, changed and deleted in seconds.
It can be stored in one country by criminals located in another country, and moved when they suspect law enforcement is catching up to them. The current procedures for mutual legal assistance (MLA) are complex, time consuming, and not adapted to the requirements of cyber investigations leaving law enforcement and juridical authorities far behind technically capable criminals. When criminals hide the location of their activities and identities with technical methods these MLA procedures become inadequate. In those cases it is not even known which country to request assistance from. Law enforcement agencies often rely on internet service providers to provide e-evidence. However, the laws for obtaining e-evidence are not identical in all countries. Internet service providers themselves, who are mostly willing to cooperate with law enforcement and judicial authorities if legally required, open have to cross borders to retrieve information, making it possible to violate laws in one country simply by complying in another.
Criminals know law enforcement and judicial authorities struggles to cope with these issues and they exploit these. They use technical means to hide their identity and move their criminal activity between countries, using the snail’s pace of existing procedures to their advantage. They also often know which countries do not have the necessary legal framework, capability or legal assistance processes in place to fight them effectively. They can use these countries as safe havens for their criminal activities. By effectively evading the rule of law they enjoy an impunity that is unacceptable.

European action

The EU has recognized the challenge cyber criminality poses and has acted accordingly. Almost all Member States are party to the Budapest Convention on Cybercrime, providing a baseline for tackling cybercrime and for enhanced cooperation across borders. Europol and Eurojust have stepped up to the challenge of enhancing international cooperation both between Member States and with third countries.
The European Cyber Crime Centre (EC3) has evolved into a vital hub for international cybercrime investigations. Several Joint Investigation Teams were successful and the efficiency of legal assistance procedures has increased.
The implementation of the European Directive regarding the European Investigation Order  in criminal matters will further improve cooperation between member states also for cyber investigations.

Remaining challenges

Unfortunately, some challenges remain unaddressed. Criminals who are technically capable or hide in countries with limited law enforcement capabilities against cybercrime are well able to evade prosecution.
Cyberspace still gives criminals the opportunity to make large gains with little risk and technically advanced criminals can find a safe have in cyberspace.

Two types of situations remain especially challenging:

1. Mutual legal assistance is not possible because the location of information or the origin of a cyber-attack is not known.
Various effective ways to hide information about the location of information and activities have been developed and some hosting providers offer hosting in countries of choice, allowing criminals to choose countries with limited law enforcement capabilities. This is called “bullet proof hosting”. These hosts promise their clients not to log their activities and to inform them when law enforcement and judicial agencies are requesting their data. Criminals use these hosters to store stolen data, including credit card information, data for botnet herding or child abuse images in those countries. Dedicated communication servers are another example.

Criminals can use their own enterprise server to direct their communications while applying strong encryption techniques. Eavesdropping is not effective because of the encryption, and data from the server cannot be obtained, because it is located in the criminal’s country of choice. There seems to be a lively trade in these kind of servers.
TOR and I2P techniques are a third example. Although these techniques of course also allow for legal use most TOR and I2P traffic is of a criminal nature, in particular the trade in drugs and weapons and the spread of child abuse images. Identifying criminals, both buyers and sellers, is often not possible and many criminals are untouchable.

In these situations mutual legal assistance is not possible, no matter how efficient procedures are. In these circumstances, stopping a cyber-attack or acquiring e-evidence could violate the sovereignty of another country. In most cases this is not allowed under international law. MLA can also be impossible for other reasons.
For example, the countries involved could have only limited relations or be involved in diplomatic issues.

Second, legal differences could limit the possibilities for assistance. Investigative powers can differ, or the dual criminality requirement might not be met.

Third, the country could lack effective capabilities for handling cybercrime and mutual legal assistance requests.

Fourth, criminals move their activities to other countries either regularly or when they suspect they are being investigated by law enforcement and judicial authorities, staying ahead of these agencies due to slow MLA procedures. These examples often involve countries outside the EU.

  1. Conflicting regulations hamper cooperation with private parties.

Internet service providers, especially those providing cloud computing services, often do not store information about clients and their activities in the countries where those clients are. Those private companies may even be established in one country while also providing their services in other countries.
Suspects of criminal investigations can be located in one country while information about them is in another. It can be necessary for law enforcement and judicial authorities to request information physically stored in another country. For internet service providers, differences in regulations can become an obstacle for cooperation. Complying with a request for data in one country could imply breaking the law in the other.
In situations as described in the above, the investigation and any further action taken against cybercrime comes to a halt.

These challenges cannot be resolved by further improving cooperation.
The European Agenda on Security (Doc. 8293/15)  recognises that this state of affairs is unacceptable and prioritises “reviewing the obstacles to criminal investigations on cybercrime, notably on issues of competent jurisdiction and rules on access to evidence and information”.

Common interest: the security of cyberspace

The security of cyberspace is of common interest to law enforcement and judicial authorities, citizens, private organisations and other parts of government. Solutions for these challenges should therefore take into account interests of all these parties.
Law enforcement and judicial authorities are charged with upholding the rule of law within the appropriate legal framework, also in cyberspace.
People and businesses should be protected against crime.
A secure internet is vital to society. Law enforcement and judicial authorities should be given the ability to improve that security for social and economic activities and to counter crime.
The legal framework should provide law enforcement and judicial authorities with the powers necessary to perform their duties effectively.
At the same time, the investigative powers they hold can intrude into private lives and business processes. Everyone should be confident that law enforcement and judicial authorities will only use their investigative powers under strict conditions, their use being lawful, necessary and proportionate and subject to proper procedural safeguards.

Proper regulation and transparency about the use of investigative powers are essential for people and businesses to trust the law enforcement and judicial authorities and for their trust in cyberspace being safe and secure.

  1. Do we need alternative approaches (e.g. legal or other instruments) for situations when mutual legal assistance is not possible?
  2. Which alternatives would you propose?
  3. Conflicting national and international regulations regarding e-evidence hamper cooperation with private parties. Should we develop a common approach to tackle this issue?
  4. Which elements should be part of such a common approach?
  1. Private enterprises are often valuable partners in the fight against cybercrime.

The private sector not only has the information necessary to solve individual cases because of their control of applications on the internet but also has valuable knowledge about cyberspace and the possibilities it provides for effective investigation. So as to ensure that the cooperation with private partners remains constructive, clear regulations and points of contact are required. Moreover, the issue of conflicting regulations should be addressed.

EU process

Following the adoption of the EU Agenda on Security, valuable contributions were made to the debate on jurisdiction in cyberspace during Luxembourg’s EU presidency term.
The current paper serves as a basis for an informal discussion at the ministerial level during their EU presidency term. Current practices in joint cybercrime operations are set to be evaluated through EMPACT. This is to be followed up on by an expert-level conference to build on the insights gained thus far.
The results will thereafter be discussed by COSI and CATS, possibly leading to the development of a further programme of action.
In the light of the above, ministers are invited to discuss the following questions2:

  1. Do you support the development of a common view on jurisdiction in cyberspace in addition to improving operational cooperation?
  2. Which issues do you think could be addressed in that respect and what is your view on those issues?

Discussion Paper on the European Forensic Science Area 2020 (Lunch meeting Ministers of Justice, 26 January 2016)

Introduction

Forensic evidence is increasingly important in criminal matters. Since crime goes beyond national borders, there is also a growing need for Member States to exchange forensic evidence. At present it is all too often the case that public prosecutors and judges are unable to use forensic evidence from another Member State because they do not have sufficient knowledge about how the investigation was carried out or whether it was up to standards.
The exchange of forensic evidence could be streamlined by creating a European Forensic Science Area. This would be an area in which the procedures of the providers of forensic services in the Member States would be better coordinated and the quality of investigations would be brought to an acceptable level.
This will build confidence and encourage cooperation in the field of law enforcement and prosecution.
On 13 and 14 December 2011 the Council (Justice and Home Affairs) approved conclusions regarding the realisation of a European Forensic Science Area by 2020 1.
In its conclusions of 15 and 16 June 2015 2 on the renewed Internal Security Strategy 2015-2020, the Council (Justice and Home Affairs) emphasised the importance of a European Forensic Area for law enforcement and prosecution: ‘Law enforcement and judicial authorities must be confident that the forensic data they rely on is of high quality, including if the data comes from another Member State. It is therefore important to ensure that the forensic data exchanged through information exchange systems, such as the Prüm framework for fingerprints and DNA profiles, can be effectively used in court.’
Notwithstanding differences of opinion, however, about the way in which a European Forensic Science Area can best be achieved, replies to a questionnaire issued in June 2015 show that Member States continue to underline the importance thereof.
The demand for forensic research continues to grow, especially with the growing power of technology. The available budgets for forensic research are nevertheless under pressure in many Member States.

The aim of creating and developing a European Forensic Science Area is to enable the mutual exchange of knowledge and expertise. In the longer term it may even be possible for the Member States to share capacities: It would then no longer be necessary for each Member State to have its own top-level expertise ‘in-house’ for every area of forensic expertise; as a consequence, the financial and technical burdens could be shared between them.
In order to cooperate well in the field of forensics it is essential to invest in quality.
In this regard an important contribution could be made by the objectives stated in the Council’s Conclusions of 2011 such as the accreditation of forensic science institutes, respect for minimum competence criteria for forensic science personnel, and minimum quality standards for scene-of-crime investigations.
In the short term an investment in quality could focus on the following objectives:
–    developing best practice manuals and proficiency tests 3 for all areas of forensic expertise;
–    developing courses to increase forensic awareness among the law enforcement and justice community;
–    encouraging the exchange of forensic data from databases.

  1. Do you think that ENFSI should be given a greater role in the further elaboration of the details of some of the Council’s Conclusions of 2011 by being a European centre of expertise in the field of forensic research and could it contribute to the gradual realisation of the objectives set out in those conclusions?
  2. If not, why not? If so, do you have any suggestions on ENFSI’s role of governance?
  3. The knowledge and expertise built up by the European Network of Forensic Science Institutes (ENFSI) could be put to good use in achieving these objectives. Several countries have already indicated in their replies to the questionnaire that they envisage a greater role for ENFSI.

Cooperation with ENFSI could therefore be encouraged. Cooperation could also be sought with CEPOL (the European Police College) in relation to forensic awareness courses.

Discussion

The ministers will be asked to answer 4 the following questions concerning the further development of the European Forensic Science Area:

  1. The exchange of DNA profles and fnger-prints in the EU by linking databases has been very successful. Would you also like to encourage the linking of national databases covering other forensic data?
  2. If so, for which areas of expertise (e.g. weapons and ammunition or drugs)?
  3. In your opinion, will the development and use of best practice manuals, profciency tests and forensic awareness courses contribute to the European Forensic Science Area in the short term?
  4. If so, which issues should have the highest priority?

NOTES

1 htp://www.consilium.europa.eu/uedocs/cms_data/docs/ pressdata/en/jha/126875.pdf
2 htp://ec.europa.eu/dgs/home-afairs/e-library/documents/ basic-documents/docs/eu_agenda_on_security_en.pdf
3 Proficiency testing determines the performance of individual laboratories for specific tests or measurements and is used to monitor laboratories’ continuing performance.

Can Member States seize asylum-seekers’ assets?

Original published on EU LAW ANALYSIS (Sunday, 24 January 2016)

by Kees Groenendijk (Professor Emeritus, Radboud University Nijmegen) and Steve Peers

In recent days, several EU and non-EU countries have been in the news for taking asylum-seekers’ assets upon arrival. Is this compatible with EU law? We examine first of all national practice, then the legislative history of the relevant EU rules, then reach our conclusions.  

Denmark

In November 2015 the Danish government presented among a catalogue of 34 measures to discourage people from seeking asylum in Denmark, to introduce the possibility to confiscate cash, jewellery and other assets of asylum seekers in other to make them contribute in the costs of their reception. They proposal caused heated debate after a Minister suggested that wedding rings could be also confiscated. In January the Social-Democratic Party voiced that it would only support this proposal of the centre-right minority government, only assets above 1,340 euro could be confiscated. The new law is to be voted on 26 January.

Similar practices or rules are to be found in the national law of other Member States.

Switzerland, only few asylum seekers concerned

According to Dutch newspapers, Swiss legislation requires asylum seekers who enter the country with more than 1,000 Swiss francs have report and hand over the surplus to the Swiss authorities. The rule only covers money, not other valuables such as personal jewellery. Of the 45,000 asylum seekers coming to Switzerland in 2015, only 112 had to hand in a surplus, totalling around € 150,000 that year. Not really an impressive amount. Most asylum seekers, apparently, do not carry large amounts of money, once they arrive in Western Europe. Besides, under Swiss law beneficiaries of protection with income from employment, have to pay 10% of that income to contribute to reception costs during ten years.

Germany, an old practice?

The German legislation on reception of asylum seekers, theAsylbewerberleistungsgesetz, provides, already many decades that asylum seekers can be forced to contribute from their own assets and income to the cost of their reception. Asylum seekers have to declare their assets and income. The rules for applicant for public social assistance are applicable. From the assets only 200 euro and the goods necessary for exercising a profession or employment are exempted (§ 7(5) of the law). According to newspaper reports the actual application of the law may differ considerably between the Länder. In certain Länder or cities the police may search the luggage of asylum seekers in other places asylum seekers may just be asked to report about their assets.

Netherlands, only contributions from income not from assets

The Junior Minister for Immigration recently told the press that that he was not going to follow the Danish and German example and force asylum seekers to hand over small amounts of cash and jewellery. His spokesman explained this is not on the agenda right now, since we do not expect that it will reduce the influx.” (Volkrant 23 January 2016)Already for decades asylum seekers in the Netherlands if lawfully employed (only possible after six months and until an asylum status is acquired for 24 weeks per year only) have to pay the surplus above 185 euro of his monthly income as a contribution in reception costs.

Compatible with EU law?

Are such rules and practices on seizure of assets in order to contribute in reception costs compatible with EU law, and especially with the Reception Conditions Directive2013/33? We do not deal here with the question whether such confiscation of valuables and jewellery is compatible with Article 1 of the First Protocol and Article 8 ECHR.

The relevant provisions are to be found in Article 17(3) and (4) of the 2013 recast Reception Conditions Directive, reading:

“3.   Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.

  1. Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time.

If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when those basic needs were being covered, Member States may ask the applicant for a refund.”

Identical provisions were already present in Article 13(3) and (4) of the originalReception Conditions Directive 2003/9. They returned unchanged in the 2013 recast of the Directive. In order to understand those provisions it may be useful to have a short look at their legislative history. The various drafts are set out in more detail in the Annex, but we will summarise them here.

Legislative history of EU rules on financial contributions by asylum seekers

The Commission in its proposal for the original 2003 Directive (COM(2001)181) inserted an Article 19 on financial contributions. Member States could require applicants who can afford to do so to contribute to the cost of their material reception conditions. The relevant decisions should be taken individually, objectively and impartially and reasons shall be given. An effective judicial remedy against such decisions should be available, making explicit reference to Article 47 EU Charter.

During the first negotiations on this Article reaction eight Member States made proposals for amendments. Six Member States proposed to refer to “the general principle of the real need of the applicant, which would lead to entitlement to material benefits” (document 11320/01, p. 33). Germany proposed that “some of the applicant’s income should be protected in all cases”. That proposal only covered the asylum seeker’s income. But it implied that all the income above a certain threshold could be seized by a Member State. The Netherlands made a similar proposal linking the asylum seeker’s contribution to his income: “if the applicant has a certain income, a contribution may be asked of him to cover some or all of the costs”. Both proposals intended to regulate a possibly contribution in reception costs, but did not include the asylum seekers’ assets as an object of seizure.

In January 2002 the text of Article 19 was consolidated with two other Articles in a new Article 18, entitled ‘Financial means test’ (document 5300/02). The Dutch proposal, concerning contribution out of income from employment was included. The German proposal, implying that a Member State could seize all income above a certain fixed threshold, did not find its way in this and later versions of provisions on financial contributions by asylum seekers. During the negotiations in February 2002 this Article was considerably shortened (a.o. replacing the general means test by the condition that the applicants do not have sufficient means to cover their basic needs, and deleting the reference to income from employment) and it was renumbered Article 17 (document 6253/02). Only three Member States made suggestions: Portugal and Greece pleaded for more reduction of the reception conditions, once an asylum seeker or his family member had been allowed access to the labour market. Germany proposed to integrate Article 17 in the general Article on material reception conditions.

Early March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency (document 6906/02). Parts of the former Article 17 were now included in Article 13, apparently following German suggestion.

In April 2002 on suggestion of Germany the words “and health care” were added in par. 3 of Article 13. Moreover, the words “for example if they have been working for a reasonable period of time” were added in par. 4, re-introducing an explicit link with participation in the labour market again (document 7802/02). This version of Article 13 of the amended proposal was accepted by Coreper and by the Council in 2002 and became part of the Directive adopted with unanimity on 27 January 2003.

In addition, the 2013 recast Directive now states that Member States can refuse or withdraw benefits if asylum-seekers have ‘concealed financial resources’ (Article 20 of the 2013 Directive). The CJEU, in its CIMADE and GISTI judgment, has ruled that Article 20 sets out an exhaustive list of grounds for reducing or withdrawing benefits.

Analysis

If this legislative history is combined with the general principles of EU law and the EU Charter, we conclude:

(1) The issue of financial contributions by asylum seekers in material reception costs from their own means was been discussed repeatedly during the negotiations on the Directive.

(2) This issue was discussed repeatedly also in relation to the access of asylum seekers to the labour market in the Member State and the income derived from such employment.

(3) The Directive allows Member States to impose a means test for access to material reception conditions, but this does not entail confiscation of assets.

(4) Since (a) the issue of financial contributions by asylum seekers in material reception costs is covered by the directive and (b) the Directive sets out minimum standards in order to avoid second movements between Member State (recitals 7 and 8), Member States are not allowed to apply less favourable rules only more favourable rules (see recital 15); the Court of Justice repeatedly held that Member States cannot introduce other conditions than those provided for in the EU Directive or Regulation, see the judgments in Ben Alaya, Koushkaki and Air Baltic. Also, by analogy with the CIMADE and GISTI ruling, the grounds in the Directive to refuse or regulate access to benefits are surely exhaustive.

(5) Article 13(3) allows Member States to make the grant of material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence. It follows that such decision to exclude an asylum seeker from material reception conditions can only be made after the Member State first has established that applicants have sufficient means to have a standard of living adequate for their health and to enable their subsistence in the Member State. In accordance with the general principle of proportionality in EU law, it is questionable whether a Member State could refuse any access to the benefits system, just because an asylum-seeker has a small amount of cash or valuables. Access should only be refused where the applicant either has an ongoing alternative source of funds, or the asylum-seeker has so much wealth that he or she could live off it for a considerable period of time.

(6) Article 13(4) allows Member States to require applicants to contribute to the cost of the material reception conditions and of the health care, when the applicants have sufficient resources. The conditions of paragraph 3 explicitly apply here as well. The Commission with regard to Article 19 of its proposal rightly stated: “Decisions on applicants’ contribution should be taken individually, objectively and impartially and reasons must be given if they are negative in order to make possible their review as accurate as possible.”

While, in the final version of the Directive this clause applies to the reduction or withdrawal of benefits, not the obligation to contribute toward costs, the general principles of EU law still require that national administrative decisions linked to EU law must be fair (see the CJEU’s YS and M and S ruling on asylum procedures, discussedhere; and the Mukarubega and Boudjliba judgments on the return of irregular migrants, discussed here). This means that any decision on asylum-seekers’ contributions has to be an individual decision giving reasons, taking into consideration the individual situation of each asylum seeker.

Such decisions must also comply with other general principles of Union law, in particular the principle of proportionality, which means that any confiscation of property must be necessary to achieve a genuine government end. It is hard to see how it is necessary to confiscate property when a less severe measure (delaying or curtailing benefit payments by an equivalent amount, in accordance with the rules on a means test) could achieve the same objective. Again, the principle suggests that asylum-seekers should only be required to contribute where applicants either have an ongoingalternative source of funds, or have so much wealth that they could live off it for a considerable period of time.

It must also be possible to challenge any decision made by a national authority on confiscation, in accordance with Article 47 (the right to an effective remedy) of the EU Charter of Fundamental Rights.

(7) In conclusion: a national rule allowing authorities to confiscate all means of an asylum seeker above a fixed amount, irrespective of the individual circumstance on the grounds mentioned in point 4 and 6 above is not compatible with Union law.

(8) Of course, Denmark and Switzerland are not bound by the Directive, Denmark because of its opt-out and Switzerland because it is not a Member State. Ireland opted out as well. But all other Members State are bound by Directive 2013/33 and the UK is opted in and is bound by the original Reception Conditions Directive 2003/9.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo: Danish police officer and asylum-seeker

Photo credit: www.channelnewsasia.com

Annex

Legislative history of Article 13(3) and (4) of Directive 2003/9 = Article 17(3) and (4) of Directive 2013/33 on financial contributions by asylum seekers in reception costs

In the Commission’s proposal for the original 2003 Directive COM(2001)181 there was a separate Article 19 reading:

Article 19

Financial contribution

  1. Member States may require applicants who can afford to do so to contribute to the cost of

their material reception conditions or to cover it. Decisions to provide material reception conditions not free of charge shall be taken individually, objectively and impartially and reasons shall be given.

  1. Member States shall ensure that applicants have the right to bring proceedings before a court against the decisions referred to in paragraph 1 and that they have access to legal assistance.

The Explanatory Memorandum to this Article 19 read:

“This Article concerns the financial contribution applicants for asylum may be asked to provide if they are provided with material reception conditions.
(1) This paragraph allows Member States to require applicants who can afford it to contribute to the cost of their material reception conditions. The purpose is to meet the Council’s concern regarding the requirement of “inadequate” resources of the applicants for asylum. In any case Member States should ensure that applicants for asylum have the possibility of being housed as even applicants with sufficient financial means might find it impossible to find suitable housing. Decisions on applicants’ contribution should be taken individually, objectively and impartially and reasons must be given if they are negative in order to make possible their review as accurate as possible.

(2) In conformity with the Charter of fundamental rights (Article 47) and in line with the case law of the Court of Justice, this paragraph ensures that the decisions taken according to paragraph 1 can be reviewed by a judicial body (including an administrative judicial body such as the Conseil d’Etat in France) at least in the last instance.”

The first reaction of Member States on this Article was in document 11320/01, p. 33:
D/E/NL/P/S and UK: reference should be made to the general principle of the real need of the applicant, which would lead to entitlement to material benefits.
D: some of the applicant’s income should be protected in all cases.
NL: stipulate that if the applicant has a certain income, a contribution may be asked of him to cover some or all of the costs.
D and UK: establish a general principle laying down that Member States may decide whether or not the applicant requires material benefits.
L and A: make provision for the case in which an applicant is invited to stay in the territory of a Member State by a national who, if applicable, has served as guarantor for the purpose of obtaining a tourist visa. In this case, it should be possible to call on the national to contribute to the costs.
A: reservation on the second sentence in that it creates an obligation to notify these decisions in writing.
3 A and S: reservation on the financial aspects of legal assistance.
D and UK: a general provision on forms of appeal at the beginning of the Directive should be sufficient.

In January 2002 the text of Article 19 was consolidated in a new Article 18, consolidating several provisions of the proposal (document 5300/02):

Article 18 (consolidating Articles 14 bis, 15(4) and 19)
Financial means test

  1. Member States may make the grant of all or some of the material reception conditions,

as well as the requirement that applicants and their accompanying family memberscover or contribute to the cost thereof, subject to a financial means test of applicants andtheir accompanying family members in accordance with the provisions of this Article.

  1. Member States may also reduce or withdraw material reception conditions within a

reasonable period after applicants or their accompanying family members commence anemployment activity in accordance with Article 13, applying the test established inparagraph 1.

  1. Applicants and their accompanying family members may be subject to one or more of

the measures provided for in paragraphs 1 and 2 when it is confirmed that they havesufficient means.

  1. Decisions under this Article shall be taken individually, objectively and impartially and

reasons shall be given.

In February 2002 this Article was considerably shortened (a.o. deleting the means test and the reference to income from employment) and renumbered as Article 17, reading together with the footnote by Member States and the Commission (document 6253/02):

Article 17 (formerly 18)1
Financial means criteria

  1. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to cover their basic needs.
  2. If it transpires that an applicant had sufficient means to cover these basic needs at the time

when material reception conditions were being provided, then Member States may ask these to refund.2

  1. Decisions under this Article shall be taken individually, objectively and impartially and

reasons shall be given. 3
1 D : this provision should be placed at the end of Article 15.

2 P, supported by EL, suggested adding the following :

“3. Member States may also reduce or withdraw material reception conditions within a reasonable period after applicants and their accompanying family members have been allowed access to the labour market in accordance with Article 13, applying the test established in paragraph 1.

  1. In the cases referred to in paragraph 3, if they are not financially independent, Member

States shall grant them the food allowance mentioned in Article 8 and access to basic social care.”

(present paragraph 3 would become 5).

3 Cion : reinsert a paragraph which was included in 12839/01 ASILE 49 (former Article 14A(6)) :

“Member States shall ensure that before the decisions referred to in paragraph 2 are notified to the applicants for asylum [and their accompanying family members] the other Articles of Chapter III of this Directive are applied”.

At its meeting on 5 and 6 March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency, document 6906/02. Parts of the former Article 17 were now included in Article 13, apparently following the suggestion made before by Germany with regard to that former Article 17.

Article 13

General rules1

  1. Member States shall ensure that material reception conditions are available to applicants when they make their application.
  2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health and the well-being of applicants.

Member States shall ensure that standard of living is met in the specific situation of persons who have special needs, in accordance with Article 17, as well as in relation to the situation of persons who are in detention.

  1. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and well-being.2
  2. Member States may require applicants to cover or contribute to the cost of the material

reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, when the applicants have sufficient resources.

  1. Material reception conditions may be provided in kind, or in the form of financial allowances or vouchers or in a combination of these provisions.

Where Member States provide material reception conditions in the form of allowances or vouchers, their amount shall be set in accordance with the principles set for in this Article.

1 A : a general rule providing for exceptions to be applied by Member States in extraordinary situations should be introduced.

2 B, D, F and P : the term “well-being” is s too vague and should be defined.

NL, S, UK : say “to enable their subsistence” instead of “to have a standard of living adequate for their health and well-being”.

In April 2002 on suggestion of Germany the words “and health care” were added in par. 3. Besides the words “for example if they have been working for a reasonable period of time” were added in par. 4, introducing an explicit link with participation in the labour market again (document 7802/02).

This version of Article 13 of the amended proposal was accepted by Coreper and by the Council. It became part of the Directive adopted on 27 January 2003

VERBASSUNGSBLOG :A New Page in Protecting European Constitutional Values: How to best use the new EU Rule of Law Framework vis-a-vis Poland

by , , (*)

The proceedings so far and the challenge ahead

 

(*)  Armin von Bogdandy ist Professor für Öffentliches Recht und Völkerrecht an der Universität Heidelberg und Direktor des Max-Planck-Instituts für ausländisches öffentliches Recht und Völkerrecht in Heidelberg.  

Carlino Antpöhler ist Wissenschaftlicher Mitarbeiter am Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg.