WIKI-LEX : The “new” EU Border Guard proposal

FOREWORD The aim of a wiki-lex exercise launched by Statewatch and FREE Group is to make easier monitoring the legislative preparatory work at EU level notably when so called “trilogues” start and it is not clear who is proposing what in view of a possible early compromise already when the European Parliament adopt its formal position (so called “first reading agreement”) or later when the Council in turn adopt its own position and the EP do not submit new amendments (“early second reading agreements”). NOTA BENE : THIS POST IS ALSO PUBLISHED AS AN INDEPENDENT PAGE ON THIS BLOG


The idea of establishing an European System of Border Guards (ESBG) has to be seen in the context of the long-term quest/search for an appropriate governance structure to ensure the management of EU external borders. The process had started with the new competences granted to the EU by the Amsterdam Treaty of 1997 as re-indorsed by the Tampere Conclusions of 1999 pushed forward into the limelight of public attention by the events of 9/11 and debated during the negotiations of the draft Constitutional Treaty [1] and thereafter mirrored in the Lisbon Treaty.

Since then, Article 77 (1)(c) TFEU codified at Treaty level the objective of “..the gradual introduction of an integrated management system for external borders.“ Article 80 of the same Treaty made clear that: “The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States”.

It is worth noting that until now the notion of “integrated management system for external borders” (IBM) has not yet been translated in the EU legislation even if the Council has already in its 2006 Conclusions highlighted some of its possible composing elements [2].  Yet still – despite the need unanimously recognized by the European institutions to create a “mechanism or common services to control external borders” – subsequent studies undertaken by Commission and Council were not able to conclusively resolve the question of whether there should be more of an “integrated force model” or rather a “network of national border forces”[3].

The issue came back on the Institutions agenda in 2013 when the new governance framework of Schengen  as been adopted and a closer interaction between national Border Guards and Frontex has been established in the framework of the Rapid Border Intervention Team  in specific sections of the borders and overall in the framework of EUROSUR.

Already at that time the need of more coordinated interventions and procedure in case of emergency in case of extraordinary pressure on specific sections of the Schengen external borders was debated and a first set of amendments was adopted in the Schengen Border Code by charging FRONTEX  of regularly monitor the EU external borders as well as detecting the possible external threats. In parallel with this security-led evolution the EU has also adopted, notwithstanding the reservations of some Member States (FR, Malta, …)  the first set of rules for search and rescue in international waters in the framework of joint operations coordinated by Frontex (EU Regulation 656/14) by acknowledging the importance of that agency in protecting fundamental rights (such as the right to life).


(A) The COMMISSION PROPOSAL  Continue reading

Is the European Council responsible for the so-called “EU-Turkey Agreement” ? The issue is on the Court of Justice table…


Until now the legal nature of so called “EU-Turkey Agreement” has been debated at academic level (see the posts here and here ) and briefly presented and debated before the Civil Liberties Committee of the European Parliament following a presentation by the legal service of that institution (see the transcript here). The latter has considered that the so called EU-Turkey “deal” is not legally binding but is just a political catalog of measures  adopted (or to be adopted) on their own specific legal basis (no matter if in their recitals reference is made to the EU-Turkey deal).

Other scholars and even Institution representatives (such as the European Council President Tusk and the President of Turkey Erdogan) have presented the “deal” as a binding measure what means that it has to be “implemented” in all its parts in compliance with the bona fide principle which should govern international relations.

On its side the European Parliament has until now followed its legal service approach by considering that, no matter of what had been “negotiated” at head of state level, it remain free to adopt or not the legislative budgetary and operational measures implementing the agreement. It has then decided, as budgetary authority, to finance the first three billions transfer to Turkey but, as legislative authority  has still to decide what to do with the amendment to the Visa legislation granting the visa waiver to the Turkish nationals and on the implementation of the so called “1 per 1 “principle. The impression is that on this issue the EP prefers more barking than biting by endorsing the Machiavellian project (launched at the end of 2015 by Germany, the Dutch Presidency, the Commission Vice President Timmermans) to ask Turkey support to  overcome the opposition to the EU migration and asylum policies inside the EU of the Visegrad Countries.

Now a new event could possibly create some movement.  The European Council has been notified on 31 May and 2 June 2016 of three similar applications for annulment lodged under Article 263 TFEU with the General of the EU Court of Justice.[1]

The three applications are directed against the European Council and request the Court to annul the “EU-Turkey statement” which was issued following the meeting of 18 March 2016 of the Members of the European Council and their Turkish counterpart (See press release 114/16 of 18 March 2016).

The applications in Cases T-192/16 and T-257/16 state that they are brought on behalf of individuals who are nationals of Pakistan and who are currently staying at the “No Borders Refugee Camp”, in Lesbos, Greece. The application in Case T-193/16 states that it is brought on behalf of an individual who is a national of Afghanistan and who is currently staying at the “Onofiyta Refugee Camp”, in Athens, Greece.  All three applicants have applied for anonymity to the Court, requesting that their names should not be rendered public.

The applicants challenge the “EU-Turkey statement” of 18 March 2016.

They consider that the “EU-Turkey statement” constitutes an agreement entered into by the European Council with Turkey and  claim that it is an act that produces legal effects adversely affecting the applicants’ rights and interests. The applicants argue, inter alia, that this act  rendered them at risk of refoulement to Turkey or ‘chain refoulement‘ to Pakistan or Afghanistan and hence compelled them to make their applications for international protection in Greece, against their will.

In support of their request for annulment of the “EU-Turkey statement” the applicants raise a number of pleas, among which:

  • failure to comply with the procedures set out in Article 218 TFEU and/or 78(3) TFEU;
  • failure to apply Council Directive 2001/55/EC of 20 July 2001;[2]
  • incompatibility with EU fundamental rights, notably with Articles 1, 18 and 19 of the Charter of the Fundamental Rights,
  • invalidity on the grounds that the case law of the European Court of Human Rights[3] and the Court of Justice[4] shows that there are serious flaws in the present Greek asylum system at all levels, including absence of an effective remedy and deficient reception facilities;
  • incompatibility with the prohibition of direct and indirect refoulement;
  • invalidity on the grounds of being based on the unlawful conclusive assumption that Turkey is a safe country;
  • invalidity on the grounds of breach of the prohibition of collective expulsion.

The applicants have requested that the case be adjudicated under an expedited procedure, in accordance with Article 152 of the General Court’s rules of procedure. The European Council will therefore have to lodge its defence within one month of the service of the applications unless the General Court decides to reject the application for expedition. In that latter case the Court may extend the deadline by one month.

So let’s see if there is Judge in Berlin…


[1]           Cases T-192 and T-193 were notified on 31 May 2016 and Case T-257/16 was notified on 2 June 2016.

[2]           Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, O.J., 7.8.2001, L 212/12.

[3]           M.S.SS v Belgium and Greece (application no. 30696/09) Judgment of the ECtHR Grand Chamber, dated 21 January 2011.

[4]           Joined Cases C-411/10 and C-493/10, N. S. and Others, Judgment of the CJEU (Grand Chamber) of 21 December 2011 ECLI:EU:C:2011:865

European Data Protection Supervisor Opinion on the EU-U.S. Privacy Shield draft adequacy decision


Executive Summary (emphasis are added)

Data flows are global. The EU is bound by the Treaties and the Charter of Fundamental Rights of the European Union which protect all individuals in the EU. The EU is obliged to take all necessary steps to ensure the rights to privacy and to the protection of personal data are respected throughout all processing operations, including transfers.

Since the revelations in 2013 of surveillance activities, the EU and its strategic partner the United States have been seeking to define a new set of standards, based on a system of self-certification, for the transfer for commercial purposes to the U.S. of personal data sent from the EU. Like national data protection authorities in the EU, the EDPS recognises the value, in an era of global, instantaneous and unpredictable data flows, of a sustainable legal framework for commercial transfers of data between the EU and the U.S., which represent the biggest trading partnership in the world. However, this framework needs to fully reflect the shared democratic and individual rights-based values, which are expressed on the EU side in the Lisbon Treaty and the Charter of Fundamental Rights and on the U.S. side by the U.S. Constitution.

The draft Privacy Shield may be a step in the right direction but as currently formulated it does not adequately include, in our view, all appropriate safeguards to protect the EU rights of the individual to privacy and data protection also with regard to judicial redress. Significant improvements are needed should the European Commission wish to adopt an adequacy decision. In particular, the EU should get additional reassurances in terms of necessity and proportionality, instead of legitimising routine access to transferred data by U.S. authorities on the basis of criteria having a legal basis in the recipient country, but not as such in the EU, as affirmed by the Treaties, EU rulings and constitutional traditions common to the Member States.

Moreover, in an era of high hyperconnectivity and distributed networks, self-regulation by private organisations, as well as representation and commitments by public officials, may play a role in the short term whilst in the longer term they would not be sufficient to safeguard the rights and interests of individuals and fully satisfy the needs of a globalised digital world where many countries are now equipped with data protection rules.

Therefore, a longer term solution would be welcome in the transatlantic dialogue, to also enact in binding federal law at least the main principles of the rights to be clearly and concisely identified, as is the case with other non EU countries which have been ‘strictly assessed’ as ensuring an adequate level of protection; what the CJEU in its Schrems judgment expressed as meaning ‘essentially equivalent’ to the standards applicable under EU law, and which according to the Article 29 Working Party, means containing ‘the substance of the fundamental principles’ of data protection.

We take positive note of the increased transparency demonstrated by the U.S. authorities as to the use of the exception to the Privacy Shield principles for the purposes of law enforcement, national security and public interest.

However, whereas the 2000 Safe Harbour Decision formally treated access for national security as an exception, the attention devoted in the Privacy Shield draft decision to access, filtering and analysis by law enforcement and intelligence of personal data transferred for commercial purposes indicates that the exception may have become the rule. In particular, the EDPS notes from the draft decision and its annexes that, notwithstanding recent trends to move   from   indiscriminate   surveillance   on   a   general   basis   to   more   targeted   and   selected approaches, the scale of signals intelligence and the volume of data transferred from the EU, subject to potential collection and use once transferred and notably when in transit, may still be high and thus open to question.

Although these practices may also relate to intelligence in other countries, and while we welcome the transparency of the U.S. authorities on this new reality, the current draft decision may legitimise this routine. We therefore encourage the European Commission to give a stronger signal: given the obligations incumbent on the EU under the Lisbon Treaty, access and use by public authorities of data transferred for commercial purposes, including when in transit, should only take place in exceptional circumstances and where indispensable for specified public interest purposes.

On the provisions for transfers for commercial purposes, controllers should not be expected constantly to change compliance models. And yet the draft decision has been predicated on the existing EU legal framework, which will be superseded by Regulation (EU) 2016/679 (General Data Protection Regulation) in May 2018, less than one year after the full implementation by controllers of the Privacy Shield. The GDPR creates and reinforces obligations on controllers which extend beyond the nine principles developed in the Privacy Shield. Regardless of any final changes to the draft, we recommend the European Commission to comprehensively assess the future perspectives since its first report, to timely identify relevant steps for longer term solutions to replace the Privacy Shield, if any, with more robust and stable legal frameworks to boost transatlantic relations.

The EDPS therefore issues specific recommendations on the Privacy Shield.

(FULL TEXT)  Continue reading