Authorization of deprivation of liberty by judicial authorities in the recast Reception conditions Directive proposal (ICJ OBSERVATIONS)

 

April 2017

The Commision proposal of the Reception Conditions Directive (recast) COM(2016) 465 final has been published by the European Commission on 13.7.2016. On 23 February 2017, the amendments[1] have been tabled in the European Parliament on the draft report by Sophia in ‘t Veld from 18 January 2017, the Rapporteur of the recast Directive.

The ICJ supports the amendments especially when it comes to its proposals on detention. In particular in the sense that detention or other restrictions of movement that may cumulatively amount to deprivation of liberty should always and only be ordered by judicial authorities (the proposed amendments 10, 30-33, 93-95, and 243-246 regarding Recital 20, Article 8.1, 9.2 and 9.3 of the proposal in particular).

The right to liberty and security of the person is protected under international human rights law (Article 9 ICCPR, Art 5 ECHR), and means that, as a general rule, asylum seekers should not be detained, except where detention can be justified as a necessary and proportionate measure for a legitimate purpose in the specific circumstances of the case. Asylum seekers may have already suffered imprisonment and torture in the country from which they have fled and therefore, the consequences of detention may be particularly serious, causing severe emotional and psychological stress and may amount to inhuman and degrading treatment.

Under international human rights law, it is established that asylum seekers should only be detained, as a last resort, in exceptional cases and where non-custodial measures have been proven on individual grounds not to achieve the stated, lawful and legitimate purpose. Detention must not be imposed arbitrarily, it must be lawful, necessary, and applied without discrimination. Judicial authorization, as well as judicial review, of detention provides an important safeguard against arbitrariness.

The Parliamentary Assembly of the Council of Europe has clearly stated in its Resolution 1707 (2010) on Detention of asylum seekers and irregular migrants in Europe, para 9.1.3, that “detention shall be carried out by a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review.

It has been also established in international law that there is a right to judicial review of any form of detention, and that such review must always be of a judicial nature[2] UNHCR guidelines also require both automatic review of detention and regular automatic periodic reviews thereafter, and a right to challenge detention.[3]

 Taking account of the complexity of the assessment of whether a deprivation of liberty is justifiable as necessary and proportionate in the individual case of an asylum seeker and of the seriousness of the impact on human rights of deprivation of liberty, the ICJ considers that authorization by a judicial authority would always be preferential in cases of detention or other serious restrictions of movement.

 NOTES

[1] See Amendments 1-51:; Amendments 52-295:; Amendments 296-543:

[2] see European Court of Human Rights in Öcalan v. Turkey, para 70; Human Rights Committee in C. v. Australia, para 8.2-8.3; HRC General Comment No. 35, Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35 (2014), para 18).

[3] Guideline 7: “(iii) to be brought promptly before a judicial or other independent authority to have the detention decision reviewed. This review should ideally be automatic, and take place in the first instance within 24–48 hours of the initial decision to hold the asylum-seeker. The reviewing body must be independent of the initial detaining authority, and possess the power to order release or to vary any conditions of release. (iv) following the initial review of detention, regular periodic reviews of the necessity for the continuation of detention before a court or an independent body must be in place, which the asylum-seeker and his/her representative would have the right to attend. Good practice indicates that following an initial judicial confirmation of the right to detain, review would take place every seven days until the one month mark and thereafter every month until the maximum period set by law is reached. (v) irrespective of the reviews in (iii) and (iv), either personally or through a representative, the right to challenge the lawfulness of detention before a court of law at any time needs to be respected. The burden of proof to establish the lawfulness of the detention rests on the authorities in question. As highlighted in Guideline 4, the authorities need to establish that there is a legal basis for the detention in question, that the detention is justified according to the principles of necessity, reasonableness and proportionality, and that other, less intrusive means of achieving the same objectives have been considered in the individual case.”

Common Asylum Procedure Regulation: ICJ comments on the current proposal of the Regulation

THE ORIGINAL DOCUMENT OF THE INTERNATIONAL COMMISSION OF JURISTS  IS PUBLISHED HERE  (April 2017)

Introduction

On 13 July 2016, the European Commission published a proposal (Common Asylum Procedure Regulation)1 to repealing the current Common Asylum Procedures Directive (2013/32/EU).2 In this briefing paper, the ICJ presents its comments on several key procedural aspects of the proposed Regulation in view of the possible impact on the rights of asylum seekers in Europe.3

The areas most impacted include access to legal information; legal assistance, representation and legal aid; accelerated and border procedures; and access to an effective remedy.

The proposed Regulation is one of the instruments of the Common European Asylum System4 of the EU. It is intended to replace the current Asylum Procedures Directive with a Regulation and thereby aims to reduce the scope of discretion enjoyed by Member States in the implementation of matters covered under its provisions.5

The proposal of 13 July 2016 was developed in reaction to the increased arrivals of refugees in 2015 which was identified by the European Commission as a “refugee crisis for the EU.”6 In 2015, over one million people – refugees, displaced persons and other migrants – made their way to EU countries. The International Organization for Migration has estimated that some 3,771 of these persons died on their journey7 and a high number of people were stranded in the border countries, mainly Italy and Greece. The European Commission reacted with a number of legislative and policy proposals, among them a proposal for intra-EU relocation schemes,8 and the new Common European Asylum System directives and regulations.

  1. Scope of the proposal

(a)  Regulation proposal

Recital 7 and Article 2.1 would limit the scope of the Regulation to territory, border, territorial waters and transit zones. Recital 7 states that  : “This Regulation should apply to all applications for international protection made in the territory of the Member States, including those made at the external border, on the territorial sea or in the transit zones of Member States, and the withdrawal of international protection. Persons seeking international protection who are present on the territorial sea of a Member State should be disembarked on land and have their applications examined in accordance with this Regulation.”

Article 2.1 states that: “This Regulation applies to all applications for international protection made in the territory of the Member States, including at the external border, in the territorial sea or in the transit zones of the Member States, and to the withdrawal of international protection.”

(b)  Analysis of International and EU law

The limitation of the scope of the Regulation to territory, border, territorial waters and transit zones does not cover all situations, which fall under the protective jurisdiction of a State under international human rights law. Consequently, there are situations where the right of asylum (Article 18 EU Charter), the prohibition of non-refoulement, and other human rights cannot be guaranteed or risk being undermined, such as in the case of interception or rescue in international waters.

Under international human rights law, jurisdiction is generally broader than that contemplated under Recital 7 and Article 2.1. While the exact scope of a State’s protective jurisdiction will be dependent on the primary treaty or other source of law providing the basis for the protection, a common minimum standard under international human rights law is that, “jurisdiction” applies to all persons who fall under the authority or the effective control of the State’s authorities or of other people acting on its behalf, and to all extraterritorial zones, whether of a foreign State or not, where the State exercises effective control of the territory on which the person is situated.

Particularly under the European Convention of Human Rights, the leading case Al-Skeini and others v. UK, where the European Court of Human Rights (Grand Chamber) also provided a clarification as to the extraterritorial reach of the European Convention and its jurisprudence on jurisdiction.10 Among the various means in which the jurisdiction of Convention extended extraterritorially, was that of control and authority of individuals, irrespective of territory on which control and authority are exercised: “It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual.11 Similarly, under the International Covenant on Civil and Political Rights, to which all EU States are Party, States “must respect and ensure the rights laid down in the Covenant to anyone within the power of effective control of that State Party, even if not situated within the territory of the State Party.12” In respect of some of other human rights treaties, obligations extend with no territorial limitations whatsoever. For instance, the International Court of Justice has said that “there is no restriction of a general nature in the Convention on the Elimination of all forms of Racial Discrimination”, to which all EU member States are a party, and therefore it applies to all State actions within or outside its territory.13

A State may have obligations to respect and protect the rights of persons who have not entered the territory, but who have otherwise entered areas under the authority and control of the State, or who have been subject to extra-territorial action (such as detention) by a State agent who has placed them under the control of that State. Of particular relevance for migrants is the fact that the State’s jurisdiction may extend in certain situations to international waters. The European Court of Human Rights has clearly affirmed that measures of interception of boats, including on the high seas, attract the jurisdiction of the State implementing the interception. From the moment of effective control of the boat, all the persons on it fall within the jurisdiction of the intercepting State, which must secure and protect their human rights.14 The same principles apply in the context of operations of rescue at sea.

(c) Conclusions and recommendations

The ICJ recommends extending the scope of the Regulation so as to apply to all situations where the Member State has effective authority or control over the asylum seeker, including in international waters.

  1. Access to legal information

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EU-Afghanistan “Joint Way Forward on migration issues”: another “surrealist” EU legal text ?

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by Luigi LIMONE (*)

It may be a coincidence but this year we are not only celebrating the 50th anniversary of Rene’ MAGRITTE painter’s death but also witnessing his surrealist approach spreading also in the EU Institutions and Member States legal practice.

We already know already that the core of 90% of legislative interinstitutional negotiations takes place in a confidential “informal” framework (the so called “trilogues” procedure) which run against the Treaties grounded obligation of legislative debates to be held in public.

Thanks to the Court of Justice (Cases T-192/16, T-193/16 and T-257/16) we have also recently discovered that the EU-Turkey “deal” on migration which was trumpeted as an EU achievement by the European Council President was not in fact an EU agreement because “neither the European Council nor any other institution of the EU decided to conclude an agreement with the Turkish Government on the subject of the migration crisis.”  According to the CJEU press release “In the absence of any act of an institution of the EU, the legality of which it could review under Article 263 TFEU, the Court has declared that it lacked jurisdiction to hear and determine the actions brought by the three asylum seekers. For the sake of completeness, with regard to the reference in the ‘EU-Turkey statement’ to the fact that ‘the EU and [the Republic of] Turkey agreed on … additional action points’, the Court has considered that, even supposing that an international agreement could have been informally concluded during the meeting of 18 March 2016, something which has been denied by the European Council,  the Council  of  the European Union  and the  European Commission in the  present  cases, that agreement would have been an agreement concluded by the Heads of State or Government of the Member States of the EU and the Turkish Prime Minister. In an action brought under Article 263 TFEU, however, the Court does not have jurisdiction to rule on the lawfulness of an international agreement concluded by the Member States.”

 

Now a third example of legal surrealist approach is offered to us by the Joint Way Forward (JWF) declaration on migration issues with Afghanistan and the EU. It was signed during the Afghanistan donor conference which took place in Brussels on 4 and 5 October 2016 and brought together representatives from 75 countries and 26 international organizations, with the ultimate aim of finding new funding solutions to end violence and introduce a political process towards lasting peace and reconciliation in Afghanistan.

Unlike for the EU-Turkey “deal” this time the EU Institutions recognize to be responsible of this text.  Intervening before the European Parliament competent committee (LIBE)  Simon Mordue, Deputy Director-General for Migration, DG Migration and Asylum (DG HOME), this declaration aims to facilitate the return process of irregular Afghans and to support their sustainable reintegration in the Afghan society, while fighting the criminal network of smugglers and traffickers at the same time. The objective, as stated in the document, is “to establish a rapid, effective and manageable process for a smooth, dignified and orderly return of Afghan nationals who do not fulfill the conditions in force for entry to, presence in, or residence on the territory of the EU, and to facilitate their reintegration in Afghanistan in a spirit of cooperation”. The document also clarifies that “in their cooperation under this declaration, the EU and Afghanistan remain committed to all their international obligations, in particular: a) respecting the provisions of the 1951 Convention relating to the Status of Refugees and its 1967 New York Protocol; b) upholding the rights and freedoms guaranteed in the International Covenant on Civil and Political rights and the EU Charter on Fundamental Rights and the Universal Declaration on Human Rights; c) respecting the safety, dignity and human rights of irregular migrants subject to a return and readmission procedure”.

The little detail is that even if the wording of the text looks like an international agreement  the Commission has clearly stated also before the EP plenary that the text is not.. binding even if, its wording, objective and content, is the same of a formal readmission agreement like the ones that the European Union has so far concluded with 17 non-EU countries an which have approved by the European Parliament following art. 79 par 3 of the TFEU. (SEE NOTE BELOW)

According to the Commission the Joint Way Forward  should instead be considered a simple “joint statement”,  not legally enforceable wich simply “paves the way for a structural dialogue and cooperation on migration issues, based on a commitment to identify effective ways to address the needs of both sides”.  However, as noted by Tony Bunyan, director of Statewatch, also the readmission agreement with Turkey of 18 March 2016 originated in the form of two letters and of an informal declaration and the European Union. Now the EU has adopted the same approach with Afghanistan.

Is the joint declaration with Afghanistan, in fact, representing  another attempt to conclude a readmission agreement, while bypassing the rules (art.79 p 3 and 218 of the TFEU)   laid down in the EU Treaties for the conclusion of international readmission agreements and notably the approbation by the the European Parliament?

 

The Joint Way Forward (JWF) declaration is in line with the recent political shift in EU foreign policy, which now primarily focuses on curbing migration and making deterrence and expulsion the main objectives of its relationships with third countries. The shift towards the externalization of migration management and control is exemplified by the new Partnership Framework, which was proposed by the European Commission in June 2016 under the European Agenda on Migration. The ultimate aim of the Partnership Framework is “a coherent and tailored engagement where the Union and its Member States act in a coordinated manner putting together instruments, tools and leverage to reach comprehensive partnerships (“compacts”) with third countries to better manage migration in full respect of our humanitarian and human rights obligations”.

In practice, the Partnership Framework has introduced an alternative approach with regards to readmission agreements, which are now concluded in the form of informal agreements by means of “informal” swift procedures.

This is done  , under pressure from some Member States, in particular Germany. It was already the case for the “non-EU” agreement with Turkey on March 2016, and also now Germany has hardly fought for a rapid adoption of an “informal” agreement with Afghanistan. Faced with the rise in arrivals form Afghanistan, in October 2015 the German Ministry of Interior Thomas de Maizières had already announced that Germany wanted to return to Afghanistan all the Afghan nationals who were not eligible for asylum, including those who had lived in Iran or Pakistan and, consequently, had no link to Afghanistan itself, and that to do so he would have urged the European Union to negotiate an agreement with the government of Kabul.  By invoking the need urgently facing the migration crisis, the political priorities of the Member States are now “deterrence” and “expulsion” and this has also gained the support of  EU Commission which is increasingly moving towards packaging these priorities in a format which  bypass the European Parliament and the lengthy formal procedures with a high risk of  human rights violations.  In fact, this new fast-track approach not only prevents any form of democratic scrutiny but also ignores the concerns of the civil society about the situation in Afghanistan and about the major risks of rights violations, such as the principle of non-refoulement, exposure to inhuman and degrading treatment, protection against collective expulsions and the right to asylum.

Afghans constitute the second-largest group of asylum seekers in Europe, with 196,170 applying in 2015. The country is experiencing ongoing and escalated conflict, despite the efforts of the EU to present it as a country that is safe for returnees and able to reintegrate them successfully. The conflict has left more than 1.2 million people without permanent homes and has resulted in three million refugees fleeing to Pakistan and Iran. Since January 2015, around 242,000 Afghans have fled to the EU. Furthermore, the country is already facing a large number of returnees from the region. In 2015, more than 190,000 Afghan documented refugees have returned from neighbouring countries. People are exposed to a deeply deteriorating security situation, as provinces such as Helmand and Kunduz fall in to the hands of armed groups yet again.

Despite this situation, the Joint Way Forward declaration gives clear signals that the European Union will once again engage in a conduct that puts into question its obligation to protect those fleeing conflicts or persecution and to safeguard the human rights of all persons as required by the EU Charter. The declaration provides for measures to facilitate the return and readmission of Afghan nationals, such as the use of non-scheduled flights to Kabul, joint flights from several EU Member States organized and coordinated by the European Border and Coast Guard Agency (Frontex), including the possibility to build a dedicated terminal for return in Kabul airport. The Joint Way Forward declaration also opens up the return of women and unaccompanied children and no mention is made to the best interest of the child. The document, in fact, states that “special measures will ensure that such vulnerable groups receive adequate protection, assistance and care throughout the whole process”.

It has to be acknowledged that some Members of the European Parliament have already raised several concerns on the legitimacy of the Joint Way Forward declaration as well as on its content. They have criticized the approach of the European Commission with regard to the adoption of informal readmission agreements as well as the conditionality imposed to third countries. In fact, the format introduced by the Partnership Framework implies a kind of connection between development aid and the third country’s willingness to cooperate for the management of migration flows. It is clear that countries like Afghanistan which are strongly dependent on foreign aid for their revenues might have no other choice but to forcibly accept to cooperate in order to receive development and financial support in exchange.

The European Union must comply with the provisions of the Treaties as well as with its democratic principles and protection of human rights, in order to avoid the replication of the EU-Turkey “statement” and the EU-Afghanistan Joint Way Forward “declaration” with other third countries, in primis Libya and Sudan which have already been identified as “interesting partners” by Italy.

 

ANNEX EU-Legal Framework on readmission agreements

EU Readmission Agreements (EURAs) are based on reciprocal obligations and are concluded between the European Union and non-EU countries to facilitate the return of people residing irregularly in a country to their country of origin or to a country of transit. The EU has stated that readmission agreements with third countries of both origin and transit constitute a cornerstone for effective migration management and for the efficient return of third country nationals irregularly present in the EU. The objective of these agreements for the EU Member States is to facilitate the expulsion of third country nationals either to their country of origin or to a country through which they transited on route to the EU. As such, they are crucial to the EU return policy, as defined in the Return Directive (Directive 2008/115/EC).

Readmission agreements are negotiated in a broader context where partner countries are usually granted visa facilitation, which means simpler procedures for their nationals to obtain shorter stay visas to come to EU Member States, and other incentives such as financial support for implementing the agreement or special trade conditions in exchange for readmitting people residing irregularly in the EU.

The legal basis for the conclusion of readmission agreements with third countries is Article 79(3) TFEU which states that “the Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States”. These agreements are negotiated with the partner country on the basis of a negotiating mandate grated by the Council to the Commission and they are then concluded after the European Parliament has given its consent. According to article 218(6) TFEU the European Parliament must, in fact, give its consent prior to the conclusion of association and similar agreements. Moreover, according to article 210(10) TFEU the European Parliament shall be immediately and fully informed at all stages of the procedure.

 

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Legal Frameworks for Hacking by Law Enforcement: Identification, Evaluation and Comparison of Practices

EXECUTIVE SUMMARY OF A STUDY FOR THE EP LIBE COMMITEE.

FULL TEXT ACCESSIBLE  HERE  

by Mirja  GUTHEIL, Quentin  LIGER, Aurélie  HEETMAN, James  EAGER, Max  CRAWFORD  (Optimity  Advisors)

Hacking by law enforcement is a relatively new phenomenon within the framework of the longstanding public policy problem of balancing security and privacy. On the one hand, law enforcement agencies assert that the use of hacking techniques brings security, stating that it represents a part of the solution to the law enforcement challenge of encryption and ‘Going Dark’ without systematically weakening encryption through the introduction of ‘backdoors’ or similar techniques. On the other hand, civil society actors argue that hacking is extremely invasive and significantly restricts the fundamental right to privacy. Furthermore, the use of hacking practices pits security against cybersecurity, as the exploitation of cybersecurity vulnerabilities to provide law enforcement with access to certain data can have significant implications  for  the security of the internet.

Against this backdrop, the present study provides the LIBE Committee with relevant, actionable insight into the legal frameworks and practices for hacking by law enforcement. Firstly, the study examines the international and EU-level debates on the topic of hacking by law enforcement (Chapter 2), before analysing the possible legal bases for EU intervention in the field (Chapter 3). These chapters set the scene for the primary focus of the study: the comparative analysis of legal frameworks and practices for hacking by law enforcement across six selected Member States (France, Germany, Italy, the Netherlands, Poland and the UK), with further illustrative examples from three non-EU countries (Australia, Israel and the US) (Chapter 4). Based on these analyses, the study concludes (Chapter 5) and presents concrete recommendations and policy proposals for  EU  action  in  the field (Chapter 6).

The international and EU-level debates on the use of hacking techniques by law enforcement primarily evolve from the law enforcement challenge posed by encryption – i.e. the  ‘Going  Dark’  issue.

Going Dark is a term used to describe [the] decreasing ability [of law enforcement agencies] to lawfully access and examine evidence at rest on devices and evidence in motion across   communications   networks.1

According to the International Association of Chiefs of Police (IACP), law enforcement agencies are not able to investigate illegal activity and prosecute criminals without this evidence. Encryption technologies are cited as one of the major barriers to this access. Although recent political statements from several countries (including France, Germany, the UK and the US) seemingly call for ‘backdoors’ to encryption technologies, support for strong encryption at international and EU fora remains strong. As such, law enforcement agencies across the world started to use hacking techniques to bypass encryption. Although the term ‘hacking’ is not used by law enforcement agencies, these practices essentially mirror the techniques used by hackers (i.e. exploiting any possible vulnerabilities – including technical, system  and/or human  vulnerabilities  – within  an  information  technology  (IT) system).

Law enforcement representatives, such as the IACP and Europol, report that access to encrypted and other data through such hacking techniques brings significant investigative benefits. However, it is not the only possible law enforcement solution to the ‘Going Dark’ issue. Outside of the scope of this study, the other options include: requiring users to provide their password or decrypt their data; requiring technology vendors and service providers to bypass   the   security   of   their   own   products   and   services;   and   the    systematic   weakening   of encryption through the mandated introduction of ‘backdoors’ and/or weakened standards for encryption.

With the benefits of hacking established, a 2016 Joint Statement published by the European Union Agency for Network and Information Security (ENISA) and Europol2 noted that the use of  hacking  techniques also brings  several   key  risks.

The primary risk relates to the fundamental right to privacy and freedom of expression and information, as enshrined in international, EU and national-level law. Hacking techniques are extremely invasive, particularly when compared with traditionally intrusive investigative tools (e.g. wiretapping, house searches etc.). Through hacking, law enforcement can gain access to all data stored or in transit from a device; this represents a significant amount of data (e.g. a recent investigation by Dutch law enforcement collected seven terabytes of data, which translates into around 86 million pages of Microsoft Word documents3), as well as extremely sensitive data (e.g. a person’s location and movements, all communications, all stored data etc.). Consequently, the use of hacking techniques will inherently restrict the fundamental right to privacy.

Therefore, current debates at international and EU fora focus on assessing and providing recommendations on the current legal balances and safeguards for the restriction of the right to privacy by hacking techniques. However, these debates have assumed that hacking practices are necessary for law enforcement and simply require governing laws; they have not discussed whether the use of hacking techniques by law enforcement is necessary and proportional. The law enforcement assertions regarding the necessity of these invasive tools have  not   been  challenged.

The second key risk relates to the security of the internet. Law enforcement use of hacking techniques has the potential to significantly weaken the security of the internet by “[increasing] the attack surface for malicious abuse”4. Given that critical infrastructure and defence organisations, as well as law enforcement agencies themselves, use the technologies targeted and potentially weakened by law enforcement hacking, the potential ramifications reach  far  beyond  the intended  target.

As such, debates at international and EU fora focus on the appropriate balances between security and privacy, as well as security and cybersecurity. Regarding security v. privacy, the debates to date have assessed and provided recommendations on the legislative safeguards required to ensure that hacking techniques are only permitted in situations where a restriction of the fundamental right to privacy is valid in line with EU legislation (i.e. legal, necessary and proportional). Regarding security v. cybersecurity, the debates have been limited and primarily centre around the use and/or reporting of zero-day vulnerabilities discovered  by  law enforcement agencies.

Further risks not discussed in the Joint Statement but covered by this study include: the risks to territorial sovereignty – as law enforcement agencies may not know the physical location of the target data; and the risks related to the supply and use of commercially-developed hacking tools by governments with poor consideration for human rights.

Alongside the analysis of international and EU debates, the study presents hypotheses on the legal  bases  for  EU  intervention  in  the  field. Although  possibilities for  EU  legal  intervention  in several areas are discussed, including mutual admissibility of evidence (Art. 82(2) TFEU), common investigative techniques (Art. 87(2)(c) TFEU), operational cooperation (Art. 87(3) TFEU) and data protection (Art. 16 TFEU, Art. 7 & 8 EU Charter), the onus regarding the development of legislation in the field is with the Member States. As such, the management of the risks associated with law enforcement activities is governed at the Member State level.

As suggested by the focus of the international and EU discussions, concrete measures need to be stipulated at national-level to manage these risks. This study presents a comparative analysis of the legal frameworks for hacking by law enforcement across six Member States, as well as certain practical aspects of hacking by law enforcement, thereby providing an overview of the primary Member State mechanisms for the management of these risks. Further illustrative examples are provided from research conducted in three non-EU countries.

More specifically, the study examines the legal and practical balances and safeguards implemented at national-level to ensure: i) the legality, necessity and proportionality of restrictions to the fundamental  right  to  privacy;   and ii) the security  of  the internet.

Regarding restrictions to the right to privacy, the study first examines the existence of specific legal frameworks for hacking by law enforcement, before exploring the ex-ante and ex-post conditions and mechanisms stipulated to govern restrictions of the right to privacy and ensure they are legal, necessary  and  proportional.

It is found that hacking practices are seemingly necessary across all Member States examined, as four Member States (France, Germany, Poland and the UK) have adopted specific legislative provisions and the remaining two are in the legislative process. For all Member States except Germany, the adoption of specific legislative provisions occurred in 2016 (France, Poland and the UK) or will occur later (Italy, the Netherlands).  This  confirms the  new  nature  of these investigative techniques.

Additionally, law enforcement agencies in all Member States examined have used, or still use, hacking techniques in the absence of specific legislative provisions, under so-called ‘grey area’ legal provisions. Given the invasiveness of hacking techniques, these grey areaprovisions are considered  insufficient  to adequately  protect the right to privacy.

Where specific legal provisions have been adopted, all stakeholders agree that a restriction of the right to privacy requires the implementation of certain safeguards. The current or proposed legal frameworks of all six Member States comprise a suite of ex-ante conditions and ex-post mechanisms that aim to ensure the use of hacking techniques is proportionate and necessary. As recommended by various UN bodies, the provisions of primary importance include judicial authorisation of hacking practices, safeguards related to the nature, scope and duration of possible measures (e.g. limitations to crimes of a certain gravity and the  duration  of  the hack,  etc.) and  independent   oversight.

Although many of these types of recommended conditions are common across the Member States examined – demonstrated in the below table – their implementation parameters differ. For instance, both German and Polish law permit law enforcement hacking practices without judicial authorisation in exigent circumstance if judicial authorisation is achieved in a specified timeframe. However, the timeframe differs (three days in Germany compared with five days in Poland). These differences make significant difference, as the Polish timeframe was criticised  by the Council  of  Europe’s  Venice Commission  for being  too long.5

Furthermore, the Member States examined all accompany these common types of ex-ante and ex-post conditions with different, less common conditions. This is particularly true for ex-post oversight mechanisms. For instance, in Poland, the Minister for internal affairs provides macro-level information to the lower (Sejm) and upper (Senat) chambers of Parliament;6 and in the UK, oversight is provided by the Investigatory Powers Commissioner, who reviews all cases of hacking by law enforcement, and the Investigatory Powers Tribunal, which  considers disputes or  complaints surrounding  law enforcement  hacking.7

Key ex-ante considerations
Judicial authorisation The    legal    provisions    of    all    six    Member    States    require    ex-ante judicial        authorisation        for        law        enforcement        hacking.        The information  to  be  provided  in  these requests differ.

Select     Member     States     (e.g.     Germany,     Poland,     the     UK)     also provide for hacking without prior judicial authorisation in exigent circumstances  if  judicial  authorisation  is subsequently  provided. The timeframes  for  ex-post authorisation  differ.

Limitation by crime and  duration All  six Member  States  restrict  the  use  of  hacking  tools  based  on the   gravity   of   crimes.    In    some    Member   States,    the    legislation presents  a  specific  list  of  crimes  for  which  hacking  is permitted; in     others,     the    limit    is    set     for    crimes    that    have    a    maximum custodial    sentence   of   greater   than    a   certain   number    of   years. The lists and numbers  of years required differ by Member   State.

Many Member States also restrict the duration for which hacking may   be   used.   This   restriction   ranges   from   maximum   1   month (France, Netherlands) to a maximum of 6 months (UK), although extensions     are     permitted     under     the     same     conditions     in     all Member States.

Key ex-post considerations
Notification and effective remedy Most    Member    States    provide    for    the    notification    of    targets    of hacking  practices and  remedy  in  cases  of unlawful   hacking.
Reporting and oversight Primarily, Member States report at a micro-level through logging hacking  activities and  reporting them  in  case  files.

However,   some   Member   States   (e.g.   Germany,   Poland   and   the UK) have macro-level  review  and  oversight mechanisms.

Furthermore, as regards the issue of territoriality (i.e. the difficulty law enforcement agencies face obtaining the location of the data to be collected using hacking techniques), only one Member States, the Netherlands, legally permits the hacking of devices if the location is unknown. If the device turns out to be in another jurisdiction, Dutch law enforcement must apply  for Mutual  Legal  Assistance.

As such, when aggregated, these provisions strongly mirror Article 8 of the European Convention on Human Rights, as well as the UN recommendations and paragraph 95 of the ECtHR  judgement  in  Weber and  Saravia  v.  Germany.  However,   there are  many,  and  varied, criticisms when the Member State conditions are examined in isolation. Some of the provisions criticised include: the limits based on the gravity of crimes (e.g. the Netherlands, France and Poland); the provisions for notification and effective remedy (e.g. Italy and the Netherlands); the process for screening and deleting non-relevant data (Germany); the definition of devices that can be targeted (e.g. the Netherlands); the duration permitted for hacking (e.g. Poland); and a lack of knowledge amongst the judiciary (e.g. France, Germany, Italy and the Netherlands).With this said, certain elements, taken in isolation, can be called good  practices. Such  examples  are  presented below.

Select  good practice: Member State legislative frameworks

Germany: Although they were deemed unconstitutional in a 2016 ruling, the provisions for the screening and deletion of data related to the core area of private life are a positive step. If the provisions are amended, as stipulated in the ruling, to ensure screening by an independent body, they would provide strong protection for the targeted individual’s private data.

Italy: The 2017 draft Italian law includes a range of provisions related to the development and monitoring of the continued use of hacking tools. As such, one academic stakeholder remarked that the drafting of the law must have been driven by technicians. However, these provisions bring significant benefits to the legislative provisions in terms of supervision and oversight of the use of hacking tools. Furthermore, the Italian draft law takes great care to separate the functionalities of the hacking tools, thus protecting against the overuse or abuse of a  hacking tool’s  extensive  capabilities.

Netherlands: The Dutch Computer Crime III Bill stipulates the need to conduct a formal proportionality assessment for each hacking request, with the assistance of a dedicated Central Review Commission (Centrale Toetsings Commissie). Also, the law requires rules to be laid down on the authorisation and expertise of the investigation officers that can perform hacking.

With these findings in mind, the study concludes that the specific national-level legal provisions examined provide for the use of hacking techniques in a wide array of circumstances. The varied combinations of requirements, including those related to the gravity of crimes, the duration and purpose of operations and the oversight, result in a situation where the law does not provide for much stricter conditions than are necessary for less  intrusive  investigative activities such  as interception.

Based on the study findings,  relevant  and actionable policy proposals and recommendations have been developed under the two key elements: i) the fundamental right  to  privacy;  and  ii) the security  of the internet.

Recommendations and policy proposals: Fundamental  right  to  privacy

It is recommended that the use of ‘grey area’ legal provisions is not sufficient to protect the fundamental right to privacy. This is primarily because existing legal provisions do not provide for the more invasive nature of hacking techniques and do not provide for the legislative precision  and  clarity  as  required  under  the  Charter and the  ECHR.

Furthermore, many of these provisions have only recently been enacted. As such, there is a need for robust evidence-based monitoring and evaluation of the practical application of these provisions. It is therefore recommended that the application of these new legal provisions is evaluated regularly at national level, and that the results of these evaluations are  assessed at  EU-level.

If specific legislative provisions are deemed necessary, the study recommends a range of good practice, specific ex-ante and ex-post provisions governing the use of hacking practices by  law  enforcement  agencies. These are detailed  in  Chapter 6.

Policy proposal 1: The European Parliament should pass a resolution calling on Member States to conduct a Privacy Impact Assessment when new laws are proposed to permit and govern the use of hacking techniques by law enforcement agencies. This Privacy Impact Assessment should focus on the necessity and proportionality of the use of hacking tools and should  require input  from  national  data protection  authorities.

Policy proposal 2: The European Parliament should reaffirm the need for Member States to adopt a clear and precise legal basis if law enforcement agencies are to use hacking techniques.

Policy proposal 3: The European Parliament should commission more research or encourage the European Commission or other bodies to conduct more research on the topic. In response to the Snowden revelations, the European Parliament called on the EU Agency for Fundamental Rights (FRA) to thoroughly research fundamental rights protection in the context of surveillance. A similar brief related to the legal frameworks governing the use of hacking techniques by law enforcement across all EU Member States would act as an invaluable piece  of  research.

Policy proposal 4: The European Parliament should encourage Member States to undertake evaluation and monitoring activities on the practical application of the new legislative provisions  that  permit  hacking  by  law  enforcement  agencies.

Policy proposal 5: The European Parliament should call on the EU Agency for Fundamental Rights (FRA) to develop a practitioner handbook related to the governing of hacking by law enforcement. This handbook should be intended for lawyers, judges, prosecutors, law enforcement officers and others working with national authorities, as well as non­governmental organisations and other bodies confronted with legal questions in the areas set out by the handbook. These areas should cover the invasive nature of hacking techniques and relevant safeguards as per international and EU law and case law, as well as appropriate mechanisms for supervision  and   oversight.

Policy proposal 6: The European Parliament should call on EU bodies, such as the FRA, CEPOL and Eurojust, to provide training for national-level members of the judiciary and data protection authorities, in collaboration with the abovementioned handbook, on the technical means for hacking in use across the Member States, their potential for invasiveness and the principles of  necessity  and  proportionality in  relation  to these  technical  means.

Recommendations and policy proposals: Security of  the  internet

The primary recommendation related to the security of the internet is that the position of the EU against the implementation of ‘backdoors’ and similar techniques, and in support of strong encryption standards, should be reaffirmed, given the prominent role encryption plays in our society and its importance to the EU’s Digital Agenda. To support this position, the EU should ensure continued engagement with global experts in computer science as well as civil society privacy and  digital  rights groups.

The actual impacts of hacking by law enforcement on the security of the internet are yet unknown. More work should be done at the Member State level to assess the potential impacts such that these data can feed in to overarching discussions on the necessity and proportionality of law enforcement hacking. Furthermore, more work should be done, beyond understanding the risks to the security of the internet, to educate those involved in the authorisation and use of  hacking  techniques by law enforcement.

At present, the steps taken to safeguard the security of the internet against the potential risks of hacking are not widespread. As such, the specific legislative provisions governing the use of hacking techniques by law enforcement, if deemed necessary, should safeguard the security of the internet and the security of the device, including reporting the vulnerabilities used to gain access to a device to the appropriate technology vendor or service provider; and  ensure  the  full  removal  of  the software  or hardware from the targeted  device.

Policy proposal 7: The European Parliament should pass a resolution calling on Member States to conduct an Impact Assessment to examine the impact of new or existing laws governing  the  use  of hacking  techniques by  law  enforcement on  the  security  of  the internet.

Policy proposal 8: The European Parliament, through enhanced cooperation with Europol
and the European Union Agency for Network and Information Security (ENISA), should
reaffirm its commitment to strong encryption considering discussions on the topic of hacking by law enforcement. In addition, the Parliament should reaffirm its opposition to the implementation of  
backdoors and  similar techniques in information technology infrastructures or  services.

Policy proposal 9: Given the lack of discussion around handling zero-day vulnerabilities, the European Parliament should support the efforts made under the cybersecurity contractual Public-Private Partnership (PPP) to develop appropriate responses to handling zero-day vulnerabilities, taking into consideration the risks related to fundamental rights and the security  of the internet.

Policy proposal 10: Extending policy proposal 4, above, the proposed FRA handbook should also cover the risks  posed  to  the  security  of the  internet  by  using hacking  techniques.

Policy proposal 11: Extending policy proposal 5, training provided to the judiciary by EU bodies such as FRA, CEPOL and Eurojust should also educate these individuals on the risks posed  to  the security  of  the internet  by  hacking  techniques.

Policy proposal 12: Given the lack of discussion around the risks posed to the security of the internet by hacking practices, the European Parliament should encourage debates at the appropriate fora specific to understanding this risk and the approaches to managing this risk. It is encouraged that law enforcement representatives should be present within such discussions.

The 2016 EU Justice Scoreboard

NOTA BENE : THE FULL REPORT IS ACCESSIBLE HERE 

The 2016 EU Justice Scoreboard was adopted by the European Commission on 10 April 2016 under reference number COM(2017) 167.

THE 2017 EU JUSTICE SCOREBOARD

(…) Introduction

‘Effective justice systems support economic growth and defend fundamental rights. That is why Europe promotes and defends the rule of law (1).’ This role of Member States’ justice systems underlined by Jean-Claude Juncker, President of the European Commission, is crucial for ensuring that individuals and businesses can fully enjoy their rights, for strengthening mutual trust and for building a business and investment-friendly environment in the single market.

Moreover, as underlined by Frans Timmermans, First Vice-President of the European Commission, effective justice systems also underpin the application of EU law: ‘The European Union is built on a common set of values, enshrined in the Treaty. These values include respect for the rule of law. That is how this organisation functions, that is how our Member States ensure the equal application of EU law across the European Union (2).’ For these reasons, improving the effectiveness of national justice systems is a well-established priority of the European semester — the EU’s annual cycle of economic policy coordination.

Independence, quality and efficiency are the key elements of an effective justice system. The 2017 EU Justice Scoreboard (‘the Scoreboard’) helps Member States to achieve this priority by providing an annual comparative overview of the independence, quality and efficiency of national justice systems. Such a comparative overview assists Member States in identifying potential shortcomings, improvements and good practices as well as trends in the functioning of national justice systems over time. It is also crucial for the effectiveness of EU law (3).

When applying EU law, national courts act as EU courts and ensure that the rights and obligations provided under EU law are enforced effectively. For this reason, the Scoreboard looks closely at the functioning of courts when applying EU law in specific areas.

The 2017 edition further develops this overview and examines new aspects of the functioning of justice systems:

– to better understand how consumers access the justice system, it examines which channels they use to submit complaints against companies (e.g. courts, out of court methods), how legal aid and court fees influence access to justice, particularly for persons at-risk-of-poverty, the length of court proceedings and before consumer authorities and how many consumers are using the online dispute resolution (ODR) platform which became operational in 2016.

–  to keep track of the situation of judicial independence in Member States, this edition presents the result of a new survey on the perception of citizens and companies; it shows new data on safeguards for protecting judicial independence.

– this edition continues to examine how national justice systems function in specific areas of EU law relevant for the single market and for an investment-friendly environment.

It presents a first overview of the functioning of national justice systems when applying EU anti-money laundering legislation in criminal justice. It also examines the length of proceedings for provisional measures to prevent imminent damages in certain areas of law.

– in order to have a clearer picture of the current use of information and communication technologies (ICT) in justice systems, this edition presents the results from a survey of lawyers on how they communicate with courts and for which reasons they use ICT.

– as standards on the functioning of courts can drive up the quality of justice systems, this edition examines in more detail standards aiming to improve the court management and the information given to parties on progress of their case.

As this is the fifth edition, the Scoreboard also takes stock of the progress achieved over time.

Although data are still lacking for certain Member States, the data gap continues to decrease, in particular for indicators on the efficiency of justice systems.

The fruitful cooperation with Member States’ contact points on national justice systems (4) and various committees and European judicial networks have enriched the data significantly.

The remaining difficulties in gathering data are often due to insufficient statistical capacity or to the fact that the national categories for which data are collected do not exactly correspond to the ones used for the Scoreboard. In very few cases, the data gap is due to the lack of willingness of certain national authorities to contribute. The Commission will continue to encourage Member States to further reduce this data gap.

(…) 2. Context

Justice remain high on the agenda (…)

In 2016, a large number of Member States pursued their efforts to improve the effectiveness of their national justice system. Justice reforms take time, sometimes several years from the first announcement of new reforms, over the adoption of legislative and regulatory measures, to the actual implementation of the adopted measures. Figure 1 presents an overview of adopted and envisaged justice reforms. It is a factual presentation of ‘who does what,’ without any qualitative evaluation. In that respect, it is important to underline that any justice reform should uphold the rule of law and comply with European standards on judicial independence. Figure 1 shows that procedural law remains an area of particular attention in a number of Member States and that a significant amount of new reforms have been announced for legal aid, alternative dispute resolution methods (ADR), court specialisation and judicial maps. A comparison with the 2015 Scoreboard shows that the level of activity generally remained stable, both on the announced reforms and measures under negotiation. (…)

The EU is encouraging certain Member States to improve the effectiveness of their justice system. In the 2016 European semester, based on a proposal from the Commission, the Council addressed country specific recommendations to six Member States in this area (21).

Two of the Member States which were subject to a country specific recommendation in 2015 did not receive a recommendation in 2016 due to the progress they had achieved (22).

In addition to those Member States subject to country specific recommendations, a further eight Member States are still facing particular challenges and are being closely monitored by the Commission through the European semester and economic adjustment programmes (23). The Commission further assists justice reforms in Romania and Bulgaria through the cooperation and verification mechanism (24).

In 2016, the Commission adopted, under the EU Rule of Law Framework (25), two recommendations regarding the rule of law in Poland, setting out the Commission’s concerns and recommending how these concerns can be addressed (26). The Commission considers it necessary that Poland’s Constitutional Tribunal is able to fully carry out its responsibilities under the Constitution, in particular to ensure an effective constitutional review of legislative acts.

The Commission continues to support justice reforms through the European Structural and Investment Funds (ESI Funds). During the current programming period 2014 – 2020, ESI Funds will provide up to EUR 4.2 billion to support Member States’ efforts to enhance the capacity of their public administration, including justice. 14 Member States have identified justice as a priority area for support by the ESI Funds. The Commission emphasises the importance of taking a result-oriented approach when implementing these priorities and calls upon Member States to evaluate the impact of ESI Funds support. In 2016, five Member States (27) requested technical assistance from the Structural Reform Support Service of the Commission, for example on sharing national experiences regarding judicial map reforms.

The positive economic impact of the good functioning of justice system deserves these efforts. A 2017 study by the Joint Research Centre identifies correlations between improvement of court efficiency and the growth rate of the economy and between businesses’ perception of judicial independence and the growth in productivity (28).

Where judicial systems guarantee the enforcement of rights, creditors are more likely to lend, firms are dissuaded from opportunistic behaviour, transaction costs are reduced and innovative businesses are more likely to invest. This positive impact is also underlined in further research, including from the International Monetary Fund, European Central Bank, OECD, World Economic Forum, and World Bank (29). (…)

Questions and Answers

 What is the EU Justice Scoreboard?

The EU Justice Scoreboard is a comparative information tool that aims to assist the EU and Member States to improve the effectiveness of their national justice systems by providing objective, reliable and comparable data on the quality, independence and efficiency of justice systems in all Member States. The Scoreboard does not present an overall single ranking but an overview of how all the justice systems function, based on various indicators that are of common interest for all Member States. The Scoreboard does not promote any particular type of justice system and treats all Member States on an equal footing. Timeliness, independence, affordability and user-friendly access are some of the essential parameters of an effective justice system, whatever the model of the national justice system or the legal tradition in which it is anchored.

The Scoreboard mainly focuses on litigious civil and commercial cases as well as administrative cases in order to assist Member States in their efforts to pave the way for a more investment, business and citizen-friendly environment. The Scoreboard is a comparative tool which evolves in dialogue with Member States and the European Parliament, with the objective of identifying the essential parameters of an effective justice system.

What is the methodology of the EU Justice Scoreboard?

The Scoreboard uses various sources of information. Large parts of the quantitative data are provided by the Council of Europe Commission for the Evaluation of the Efficiency of Justice (CEPEJ) with which the Commission has concluded a contract to carry out a specific annual study. These data range from 2010 to 2015, and have been provided by Member States according to CEPEJ’s methodology. The study also provides detailed comments and country specific information sheets that give more context. They should be read together with the figures (5).

Data on the length of proceedings collected by CEPEJ show the ‘disposition time’ which is a calculated length of court proceedings (based on a ratio between pending and resolved cases). Data on courts’ efficiency in applying EU law in specific areas show the average length of proceedings derived from actual length of court cases. It should be noted that the length of court proceedings may differ substantially geographically within a Member State, particularly in urban centres where commercial activities may lead to a higher caseload.

The other sources of data are: the group of contact persons on national justice systems (6), the European Network of Councils for the Judiciary (ENCJ) (7), the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC) (8), Association of the Councils of State and Supreme Administrative Jurisdictions of the EU (ACA-Europe) (9), the European Competition Network (ECN) (10), the Communications Committee (COCOM) (11), the European Observatory on infringements of intellectual property rights (12), the Consumer Protection Cooperation Network (CPC) (13), the Expert Group on Money Laundering and Terrorist Financing (EGMLTF) (14), Eurostat (15), the European Judicial Training Network (EJTN) (16), the Council of Bars and Law Societies of Europe (CCBE) (17) and the World Economic Forum (WEF) (18).

The methodology for the Scoreboard has been further developed in close cooperation with the group of contact persons on national justice systems, particularly through a questionnaire and collecting data on certain aspects of the functioning of justice systems.

The Scoreboard contains figures on all three main elements of an effective justice system: quality, independence and efficiency. These should be read together, as all three elements are necessary for the effectiveness of a justice system and are often interlinked (initiatives aimed at improving one of them may have an influence on the other).

How does the EU Justice Scoreboard feed into the European semester?

The Scoreboard provides a comparative overview of the quality, independence and efficiency of national justice systems and helps Member States to improve the effectiveness of their national justice systems. This makes it easier to identify shortcoming and best practices and to keep track of challenges and progress. In the context of the European semester, country-specific assessments are carried out through bilateral dialogue with the national authorities and stakeholders concerned. This assessment takes into account the particularities of the legal system and the context of the Member States concerned. It may lead to the Commission proposing to the Council to adopt country-specific recommendations on the improvement of national justice systems (19).

NOTES

 

(1) 2016 State of the Union Speech delivered before the European Parliament on 14 September 2016: https://ec.europa.eu/priorities/state-union-2016_en
(2) http://europa.eu/rapid/press-release_SPEECH-16-2023_en.htm
(3) See also Communication from the Commission — EU law: Better results through better application, 13 December 2016, 2017/C 18/02.
(4) In view of the preparation of the EU Justice Scoreboard and to promote the exchange of best practices on the effectiveness of justice systems, the Commission asked Member States to designate two contact persons, one from the judiciary and one from the ministry of justice. Regular meetings of this informal group are taking place.
(5) http://ec.europa.eu/justice/effective-justice/scoreboard/index_en.htm
(6) In view of the preparation of the EU Justice Scoreboard and to promote the exchange of best practices on the effectiveness of justice systems, the Commission asked Member States to designate two contact persons, one from the judiciary and one from the ministry of justice. Regular meetings of this informal group are taking place.
(7) ENCJ unites the national institutions in the EU Member States which are independent of the executive and legislature, and which are responsible for the support of the Judiciaries in the independent delivery of justice: https://www.encj.eu/
(8) NPSJC provides a forum through which European institutions are given an opportunity to request the opinions of Supreme Courts and to bring them closer by encouraging discussion and the exchange of ideas: http://network-presidents.eu/
(9) ACA-Europe is composed of the Court of Justice of the EU and the Councils of State or the Supreme administrative jurisdictions of each EU Member State: http://www.juradmin.eu/index.php/en/
(10) ECN has been established as a forum for discussion and cooperation of European competition authorities in cases where Articles 101 and 102 of the TFEU are applied. The ECN is the framework for the close cooperation mechanisms of Council Regulation 1/2003. Through the European Competition Network, the Commission and the national competition authorities in all EU Member States cooperate with each other: http://ec.europa.eu/competition/ecn/index_en.html
(11) COCOM is composed of representatives of EU Member States. Its main role is to provide an opinion on the draft measures that the Commission intends to adopt: https://ec.europa.eu/digital-single-market/en/communications-committee
(12) The European Observatory on Infringements of Intellectual Property Rights is a network of experts and specialist stakeholders. It is composed of public- and private-sector representatives, who collaborate in active working groups. https://euipo.europa.eu/ohimportal/en/web/observatory/home
(13) CPC is a network of national authorities responsible for enforcing EU consumer protection laws in EU and EEA countries: http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/consumer_protection_cooperation_network/index_en.htm
(14) EGMLTF meets regularly to share views and help the Commission define policy and draft new legislation: http://ec.europa.eu/justice/civil/financial-crime/index_en.htm
(15) Eurostat is the statistical office of the EU: http://ec.europa.eu/eurostat/about/overview
(16) EJTN is the principal platform and promoter for the training and exchange of knowledge of the European judiciary. It develops training standards and curricula, coordinates judicial training exchanges and programmes, disseminates training expertise and promotes cooperation between EU judicial training institutions. EJTN has some 34 members representing EU states as well as EU transnational bodies. http://www.ejtn.eu/
(17) CCBE is an international non-profit association which represents European bars and law societies. CCBE membership includes the bars and law societies of 45 countries from the EU, the EEA, and wider Europe: http://www.ccbe.eu/
(18) WEF is an International Organisation for Public-Private Cooperation, whose members are companies: https://www.weforum.org/
(19) The reasons for country-specific recommendations and the progress on the implementation of such recommendations are presented on an annual basis by the Commission in individual country reports in the form of Staff Working Documents: https://ec.europa.eu/info/publications/2017-european-semester-country-reports_en
(20) The information has been collected in cooperation with the group of contact persons on national justice systems for 25 Member States. PL and UK did not submit information. DE explained that a number of reforms are under way as regards judiciary, where the scope and scale of the reform process can vary within the 16 federal states.
(21) BG, HR, IT, CY, PT, SK; see Council Recommendation of 12 July 2016 on the 2016 National Reform Programme of Bulgaria and delivering a Council opinion on the 2016 Convergence Programme of Bulgaria, (2016/C 299/08); Council Recommendation of 12 July 2016 on the 2016 National Reform Programme of Croatia and delivering a Council opinion on the 2016 Convergence Programme of Croatia (2016/C 299/23); Council Recommendation of 12 July 2016 on the 2016 National Reform Programme of Italy and delivering a Council opinion on the 2016 Stability Programme of Italy, (2016/C 299/01); Council Recommendation of 12 July 2016 on the 2016 National Reform Programme of Cyprus and delivering a Council opinion on the 2016 Stability Programme of Cyprus, (2016/C 299/07); Council Recommendation of 12 July 2016 on the 2016 National Reform Programme of Portugal and delivering a Council opinion on the 2016 Stability Programme of Portugal, (2016/C 299/26); Council Recommendation of 12 July 2016 on the 2016 National Reform Programme of Slovakia and delivering a Council opinion on the 2016 Stability Programme of Slovakia, (2016/C 299/15).
(22) LV and SI.
(23) BE, ES, LV, MT, PL, RO, SI. These challenges have been reflected in the recitals of the Country-Specific Recommendations and the country reports relating to these Member States. The country reports are available at: https://ec.europa.eu/info/publications/2017-european-semester-country-reports_en. Furthermore, justice reforms in EL are closely being monitored in the context of the Economic Adjustment Programme for Greece.
(24) Report on progress in Bulgaria under the Cooperation and Verification Mechanism, COM(2017) 43 final; Report on progress in Romania under the Cooperation and Verification Mechanism COM(2017) 44 final.
(25) COM(2014) 158 final/2.
(26) Commission Recommendation (EU) 2016/1374 of 27 July 2016 regarding the rule of law in Poland, OJ L 217, 12.8.2016, p. 53; Commission Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland, OJ L 22, 27.1.2017, p. 65. See also IP/16/2643 and IP/16/4476.
(27) BG, EL, HR, CY, SI.
(28) ‘The judicial system and economic development across EU Member States’, JRC (forthcoming).
(29) See references in the 2016 EU Justice Scoreboard.

PARLIAMENTARY TRACKER : THE NEW PROPOSAL ON SYSTEMATIC CONTROLS AT EU EXTERNAL BORDERS

by Beatrice FRAGASSO (*)

On Friday 7 April,   Regulation (EU) 2017/458  reinforcing of checks against relevant databases at external borders for all travellers crossing the external Schengen borders, including European nationals, has entered into force. It is the latest  but not the last amendment to the Schengen Border Code (Regulation (EC) 562/2006 ): other amendments are currently negotiated in the framework of the so called Smart Border Package (and others will follow in the coming months) such as

-the two proposals on the ENTRY-EXIT System (issues currently debated are i) the scope of the EES; ii) the optimal choice and use of biometric identifiers; iii) the calculation of the 90/180 day- timeframe regarding Member States which do not yet apply the Schengen acquis in full; iv) the conditions under which stamps will still be used on travel documents; v) the transfer of data to third countries and other third parties; vi)the interaction between the EES and the bilateral agreements under which a Member State extends the stay of the third country national concerned for a period longer than 90 days).

-the proposal to create a European Travel Information and Authorisation System (ETIAS) in order for the visa-exempt third country nationals to be authorised to travel to the Schengen Area for short-stay visits following a pre-screening prior to their trip. Such pre-screening should allow the competent authorities to assess whether such travel poses a security or migration risk. However, it should be noted that this authorisation would not grant entry to the Schengen Area, which remains to be decided by the border guards. ETIAS would cover all external border types (air, land and sea).

– the establishment of additional functionalities for the SIS such as the creation of SIS alerts on irregular migrants who are the subject of return decisions; the use of facial images for biometric identification, in addition to fingerprints; the automatic transmission of information on a hit following a check; the storing of hit information on discreet and specific check alerts in the SIS Central System; the creation of a new alert category on ‘Wanted Unknown Persons’ for which forensic data may exist in national databases (e.g. a latent print left behind at a crime scene) and the extension of the scope of SIS for immigration purposes.  (SEE 7644/16 – Communication from the Commission to the European Parliament and to the Council Stronger and Smarter Information Systems for Borders and Security)

PROCEDURAL ASPECTS :

This latest reform  reinforcing of checks against relevant databases at external borders (Legislative PROCEDURE COD(2015)0307) was proposed by the European Commission (see COM(2015)0670) at the end of 2015 following the Paris terrorists attacks. The Council adopted a “general approach” already on February 25 , 2016 as a basis for a trilogue with the European Parliament and the Commission.

On his side the EP LIBE Committee adopted its Report on 21 June 2016 (A8-0218/2016) . Since then, several technical meetings  and at least three trilogues meetings , (on 13 July 2016, 11 October 2016 and 5 December 2016 ) have taken place. As usual there is no transparency on this kind of legislative negotiations from June 2016 to February 2017 and the only accessible reference is a multicolumn document leaked by Statewatch (dated 8 July 2016). According to that document and other informal sources the main issues debated between the Parliament and the Council were : i) regarding air borders, the extent of the transitional period during which it will be possible to derogate from the systematic checks; ii) the question whether reference should be made in the text to consultation of national data bases to verify that there is no threat to the internal security, etc.; iii) the question whether the scope of cases to be exempted from systematic checks under certain conditions shall be limited to the disproportionate delays (and if allowed by the relevant risk analysis) or would be broaden; iv) The sunset clause which the Parliament wants to be included in the text in order to have the application of this Regulation terminated after a given time.

The Member States pressure on the European Parliament has been particularly strong after  the “informal” meeting of the Heads of State or Government at Bratislava on 16 September 2016 and the result of it (and of the trilogues) has been a compromise wich has been endorsed by LIBE has submitted and submitted to the  European Parliament.

The latter has adopted its position on 16 February 2017 and this  text  is particularly interesting because it shows clearly all the amendments agreed on by the Co-legislator (European Parliament and Council) on the original Commission proposal.. Needless to say, the Council unanimously endorsed the text on Tuesday 7 March, with the only exception of UK, IRL (which can decide to join later) and of DK.

However Slovenia while approving the text confirmed in a separate statement its strong concerns because  “.. checks carried out systematically on all persons crossing the external borders, including those enjoying the right of free movement under Union Law, without targeted checks as a basic principle for efficient border checks and without taking into consideration justified exemptions, is a disproportionate measure in relation to the pursued objective of the change….Additional doubts to the efficiency of the new provisions of Article 7(2) of the Code are related to the possible transitional period for border checks at air borders that are especially vulnerable part of the external borders. The implementation on the scale as specified in Article 7 (2) of the Code will have an adverse effect on passenger flows at external borders as it will also have financial implications for Member States. Slovenia cannot be held ultimately accountable for such outcomes.”

These concerns have been echoed also in a statement of Croatia. The latter is formally a member of the Schengen cooperation but has still to obtain (like Romania and Bulgaria) the Council decision which states that  all the technical tests have been past and internal controls can be suppressed. In practice Croatia is considered still outside the Schengen area and the internal borders controls with Slovenia and Hungary will continue until the Council gives its green light.  For this reason “..the Republic of Croatia regrets that these measures are to be implemented not only at the European Union’s external borders but also at internal borders between Member States fully applying the Schengen acquis and Member States not yet fully applying the Schengen acquis. The title of the Regulation itself implies its application at the European Union’s external borders, not at Schengen borders. For that precise reason, all Member States should have been treated equally. Such a regime will constitute a significant additional burden on the national resources of the Republic of Croatia in terms of the required level of technical and personnel capacities, which could have negative implications for the Croatian economy and the efficient flow of passenger and goods traffic. The Republic of Croatia considers that not even at a symbolic level does such a regime at internal borders contribute to unity in achieving the objectives of this Regulation….”

SOME HIGHLIGHTS OF THE NEW REGULATION AND ECHOES OF THE EP DEBATE 

To have an idea of the impact of the new regulation suffice to remember that in 2014 there has been 60.906.914 Schengen external borders crossings of those 48.792.665 EU citizens.  In the first half of 2016: 26.842.855 passengers, of those 21.385.972 EU citizens.

The new Regulation concerns in particular the Article 7 of Regulation 562/2006, that rules the border checks on persons. Reinforcing the checks against databases at external borders is a response, in particular, to the increased threat of terrorism, and it aims to guarantee the proper functioning of the Schengen area. The new regulation introduces the obligation of systematic checking of all citizens (also EU citizens) at air, sea and land borders on the basis of police databases, such as the Schengen Information System (SIS) or the Interpol database of stolen or missing documents, in view of tracking journeys possibly made for terrorist purposes.

While third-country nationals are already subject to systematic document and security checks against relevant databases upon entry, according to the current legislation EU citizens were subjects to a minimum control based on a rapid and straightforward verification of the validity of the travel document for crossing the border.

The phenomenon of foreign terrorist fighters, many of whom are Union citizens, has generated the need to reinforce checks at external borders with regard to persons enjoying the right of free movement under Union law (i.e. EU citizens and members of their families who are not EU citizens). These new provisions try to face the risks posed by returning terrorist foreign fighters, who have returned to the EU from non-EU countries, exercising their right of free movement.

The regulation introduces a new ordinary procedure for border checking.

The travel documents of persons enjoying the right of free movement under Union law should be checked systematically, on entry into and on exit from the territory of Member States, against SIS and Interpol databases for stolen, misappropriated, lost and invalidated travel documents in order to ensure that such persons do not hide their real identity.

Border guards should conduct systematically checks using data provided by the SIS, Interpol database on stolen and lost travel documents, national databases. To that end, the Member States should ensure that their border guards have access at external border crossing points to the national and Union databases.

The EP rapporteur Monica Macovei (ECR – Romania) at the plenary (on 15 February 2017) gave an example of how the control system is supposed to work: the passport will be scanned and, if one of the databases shows information about that person, further analysis will be done on that traveller. She underlined that it will be a fast verification, because border guards will utilise only one interface, that gather all the databases. According to the regulation, such systematic checks of course should be carried out in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union and should fully respect human dignity.

As an exception to the systematic controls, Member States will be allowed to carry out “targeted” (non-systematic) control to particular cases in which systematic checks at the border would have a disproportionate impact on the flow of the traffic. In these cases, a Member State may decide to carry out those checks on a targeted basis at specified border crossing points. This exemption is allowed just if, on the basis of a risk assessment, it is determined that such a relaxation would not lead to a security risk. Such a risk assessment should be transmitted to the European Border and Coast Guard Agency.  In cases where there are doubts about the travel document or where there are indications that such a person could represent a threat to the public policy, internal security, public health or international relations of the Member States, the border guard should consult all named databases.

The regulation provides for adaptations to take account of the problems, mostly of a technical nature, raised by certain member states: at the air borders, for instance, the Member States will be allowed to carry out “targeted” controls over a six-month transition period, once the new regulation enters into force. This timeframe could then be extended for a maximum 18-month period in exceptional circumstances, for instance if airports need to adapt because they do not have the infrastructure to enable them to carry out the systematic controls.

The rapporteur Monica Macovei (ECR – Romania) at the plenary (on 15 February 2017) highlighted the main changes to the Schengen Borders Code. Since now EU citizens have not been checked on entering and leaving the Schengen area and the citizens from third countries are checked only at the entrance, and not in exit. This will change with the regulation: everyone, EU citizens, and non-EU citizens, will be checked both at entry and exit of the EU external border (and not only of the Schengen Area). The rapporteur underlined also the important responsibility of Member States in the regulation’s implementation: Member States should enter data into the EU databases and ensure that the data are accurate and up-to-date and that they are obtained and entered lawfully.

However, the first days of implementation showed some difficulties and inadequacies of the Regulation. As the deputy Tanja Fajon (S&D, Slovenia) had already predicted in her intervention at the plenary (15 february 2017), the first days of implementation produced traffic chaos on some borders, especially on the Slovenia-Croatia one (Slovenia is a member of the Schengen Area, Croatia not yet). Many holidaymakers from Austria, Germany and Switzerland spent hours in queues and during Easter break and summer holidays it will probably get worst.

Tanja Fajon stated that border guards would not have been able to handle the new provisions and that border states would have dealt with queues at the borders. She pointed out that the new rules are characterized by an excessive inflexibility and that they are too unbalanced: they increase security but at the expense of measures user-friendly for all passengers.

And that’s what happened the last weekend on the Slovenia-Croatia borders. Late on Friday Slovenian police suspended the systematic checks of all passengers and continued checking only those from third countries, as the Regulation allows in particular cases in which systematic checks have a disproportionate impact on the flow of the traffic. Slovenian Prime Minister Miro Cerar said that Slovenian police would continue with a “softer” implementation of the new regime until the normalisation of conditions at the border. He stated that the new Regulation is “unacceptable” and the Croatian Prime Minister Andrej Plenkovic agreed with him: Slovenia and Croatia will present proposals to the European Commission to change the Regulation as soon as possible.

The debate at the plenary that took place on 15 February shows also other controversial elements in the Regulation, criticized by MEPs.

Sophia in t’ Veld, on behalf of the Alde Group, criticized the lack of impact assessment, as also Ulrike Lunacek (on behalf of Verts/ALE Group) did: they criticized the fact that the Commission didn’t give any proof that the regulation will make EU more secure. In second place, both the groups find it strange that the Commission use as justification for the proposal the Paris attacks, because one of the main shortcomings emerged in that case was that Member States were not sharing information and terrorists were able to cross internal borders without problems.

Then, with regard with legislative text, Alde group would have preferred a risk-based system, proportional and necessary, rather than the default setting of systematic checks. They also would have liked risk assessment at the European level, based on common European criteria.

Furthermore, they pushed for an equal treatment of land, air and sea borders, with no results. It would therefore have been logical to introduce this equivalence, because if everybody is submitted to systematic checks at airports, but there can be exceptions for land and sea borders, obviously a person who wants to escape control will take the car.

However, Alde group is satisfied for the introduction of the limitation of compulsory checks to well-defined databases, rather than the general reference that was included initially (all relevant databases).

Marie-Christine Vergiat, on behalf of the GUE/NGL group, affirmed that her group firmly oppose the regulation, because it represents another stage in the building of Europe as a security state. GUE/NGL affirm that controls will be random because databases will be consulted just in case of doubt about the validity of travel documents and certain categories of person may also be exempted. They consider that this regulation will affect fundamental rights, without the right to the safety being strengthened.

Laurențiu Rebega, on behalf of ENF group, pointed out that under the justification of security they are building huge databases which are beyond any democratic control. Furthermore, they consider unfair and humiliating that States that are not in Schengen will have the same obligations of Schengen States, but without enjoying the same rights.

All the interventions, anyway, highlighted that the Regulation will be useless if Member States keep ignore the system in place and if Member States do not feed information into it and do not check it. Member States should accept that there is an obligation to use the existing system. The parliamentary debate shows also the shared need to improve dialogue between the databases, and interconnectivity between them and the infrastructure responsible for management of external borders, in full respect of the rules on data protection and fundamental rights.

(*) FREE Group Trainee

  1. Statement by SloveniaThe Republic of Slovenia reaffirms its commitment to implement the provisions of the Schengen Border Code (hereinafter the Code) introducing strengthened checks on persons crossing the external borders of Member States, also on those enjoying the right of free movement under Union law. While the purpose of exercising border checks in this manner is expected to deliver an improvement to control of external borders, to increase Member States’ internal security and to prevent terrorism, this will also have other consequences.By this declaration, Slovenia wishes to draw attention to the potential consequences that will follow from consistent implementation of Article 7(2) of the Code.
    The Republic of Slovenia, as a country whose territory is one of the most heavily burdened entry and exit areas enabling access to Member States1, is fully aware of its responsibility of carrying out border control in the interest of all Member States. In Slovenia’s view, checks carried out systematically on all persons crossing the external borders, including those enjoying the right of free movement under Union Law, without targeted checks as a basic principle for efficient border checks and without taking into consideration justified exemptions, is a disproportionate measure in relation to the pursued objective of the change. Additional doubts to the efficiency of the new provisions of Article 7(2) of the Code are related to the possible transitional period for border checks at air borders that are especially vulnerable part of the external borders. The implementation on the scale as specified in Article 7 (2) of the Code will have an adverse effect on passenger flows at external borders as it will also have financial implications for Member States. Slovenia cannot be held ultimately accountable for such outcomes.

    Slovenia also welcomes the intention of the European Commission to assess regularly the implementation of the Code, including the consequences of amended provisions, and propose relevant amendments if necessary.

    Statement by Croatia

    The Republic of Croatia supports the objective of this Regulation. It is of the opinion that implementing the mechanisms established thereunder will help to strengthen and maintain security throughout the territory of the European Union and the Schengen area, and also contribute to the overall control of our border, that is the external border of the European Union. At the same time, the Republic of Croatia regrets that these measures are to be implemented not only at the European Union’s external borders but also at internal borders between Member States fully applying the Schengen acquis and Member States not yet fully applying the Schengen acquis. The title of the Regulation itself implies its application at the European Union’s external borders, not at Schengen borders. For that precise reason, all Member States should have been treated equally. Such a regime will constitute a significant additional burden on the national resources of the Republic of Croatia in terms of the required level of technical and personnel capacities, which could have negative implications for the Croatian economy and the efficient flow of passenger and goods traffic. The Republic of Croatia considers that not even at a symbolic level does such a regime at internal borders contribute to unity in achieving the objectives of this Regulation.

    Nevertheless, the Republic of Croatia remains fully committed to consistent compliance with and implementation of the Regulation, and welcomes the European Commission’s intention to regularly monitor its implementation and propose relevant amendments whenever it deems this possible.

    With a view to ensuring efficient implementation, the Republic of Croatia also recalls the specific situations of certain Member States and invites the European Commission to take steps, in consultation with stakeholders and further to the European Council conclusions of December 2016, to find appropriate solutions to address those specific situations.

    The Republic of Croatia therefore has an interest and is actively engaged in finding ways to mitigate the undesired consequences of the measures introduced on the flow of passenger and goods traffic both at its external border and at its internal land border with the Republic of Slovenia and Hungary. Bearing in mind the Regulation’s objective and benefits for the European Union as a whole and the fact that it enjoys the broad support of Member States, the Republic of Croatia, as a constructive Member State, supports its adoption.

     

The Return of the Sovereign: A Look at the Rule of Law in Hungary – and in Europe

ORIGINAL PUBLISHED ON VERFASSUNGSBLOG ( 5 Apr 2017 )

by Renáta Uitz (*)

Spring arrived in Budapest with sunshine, magnolias in full bloom, hordes of stag partiers from the U.K. – and a sovereign ready to fight against foreign invaders by legal means. After a lengthy media and political campaign against migrants, foreign influence and George Soros, the Hungarian government resorted to a surgical strike via lawmaking. The first bills of the spring seek to regulate foreign universities and civil society organizations receiving foreign funds with new-found vigor and persistence. This regulatory campaign is launched in the spirit of reclaiming national sovereignty. Were the Hungarian government to succeed in its recent efforts, it may well seriously shatter whatever is left from the rule of law in Europe.

A new law and an alleged bill

On Sunday, April 2, 2017 thousands of Hungarians spent their afternoon demonstrating against the impending amendment of the national higher education law (Act no. 204 of 2011). The amendment became law with the speed of light: the bill was tabled on March 28, 2017 and was passed by the Hungarian Parliament in a procedure of exceptional urgency on April 4, 2017 amidst intense international and domestic protest.

The disputed amendment sought to introduce brand new conditions for the operation of universities accredited outside the EU (foreign universities in the terminology of the bill) in Hungary. According to the reasoning of the Minister of Education who tabled the bill, the amendment aims to regulate third-country (non-EU) universities, as their operation is significant for Hungary’s international relations, and because the movement of scholars and students presents a genuine national security concern.

Among several other conditions the amended law requires foreign universities to maintain a campus in the jurisdiction which has accredited them. The Hungarian government’s concern is that without a campus in the accrediting company, the foreign accreditation agency does not continue to exercise quality control over these institutions. Also, a foreign university may be established solely on the basis of an international agreement concluded by the Hungarian government and the jurisdiction which accredited the institution.

By the time the protesters got home on Sunday, they found out from a news portal that the government appears to have a bill ready to discipline civil society organizations receiving foreign funds. The leaked document which very clearly resemble a bill has not yet been tabled. The idea is to have NGOs which receive more than 7.2M HUF (approx. 24.800 USD / 23.200 EUR) to register themselves with the government as “foreign funded” NGOs. The measure is justified in the name of the fight against money laundering and international terrorism, and is placed in the legal framework of existing rules against money-laundering. According to the preamble of the bill, civil society organizations may be used in Hungary by unknown foreign interest groups to influence Hungarian politics against the interests of the Hungarian people and thus endanger the “influence free operation” of legal institutions.

In the meantime, the self-defending sovereign seeks to gain support to warding off foreign influence in a freshly launched National Consultation. A National Consultation is a direct mailing campaign surveying Hungarian citizens on “important national questions.” (It is not to be mistaken for a referendum or plebiscite.) In this round the government seeks to stop Brussels from abolishing the reduction of utility fees and imposing illegal migrants on Hungary, while it also seeks to enhance the financing of civil society organizations. According to the secretary of state announcing the latest survey“[p]articipating in the national consultation is a strong manifestation of support for Hungary’s independence.”

The legal measures launched in April clearly fit in this rhetoric and mental framework of defending national independence and sovereignty from unwanted foreign influence. But what does this have to do with the rule of law? And why should anyone in Europe care?

Rule of law – rule by law?

The measures discussed in this post fail to meet even the most basic features of how legal rules are envisioned in a rule of law framework. The rules are not general or neutral: they target particular legal entities under the guise of general norms. Although the measures are justified by the need to control harmful foreign influence, they are hardly necessary or proportionate to the aims to be achieved. The manner and speed with which the amendment of the higher education law was passed is antithetical to the most basic premises of legal certainty. These rules single out particular legal entities chosen on the basis of political (in)convenience and subject these target organizations to special treatment serving arbitrary political aims.

The targets of the recent legal measures are organizations which are not government-funded (thus, not government-controlled) and appear to have a  public presence which the government views to be harmful or at least dangerous to Hungarian national identity.

The amendment of the higher education law affects 28 institutions of higher education, out of which 27 do not meet the newly introduced conditions of operation. From the public discourse it transpired very quickly that the primary target of this legislative measure was Central European University, a private graduate university founded by George Soros. Sources in the ruling party regularly referred to CEU in the media as the Soros-university. The parliamentary debate on the bill made it evident that CEU indeed was the target of the measure.

The government’s own communication has made it crystal clear that the leaked NGO bill fits in the Hungarian government’s efforts to rid Hungary of Mr Soros’s philanthropy. In the past few days voices in the ruling party called on the Hungarian government to refuse to pay the Hungarian Helsinki Committee (sic) which had won a major case before the ECtHR challenging the core of ideas of the Hungarian government’s border control measures. This is a mild gesture compared to the political test balloons which suggested that Hungary should exit the European Convention on Human Rights.

In light of the above it would be hard to claim that the newly enacted or the leaked bill contain legal norms of general application. Despite the carefully crafted language of these bills and the conditions they set, it is clear for an observer familiar with the local context that these bills are political instruments targeting very specific legal entities. This is not to suggest that it is per se illegitimate for a government to re-regulate a market sector inhabited by a handful of actors. It is at least curious that e.g. the foreign universities affected by the newly adopted amendment had not been involved in the preparation of the bill, nor had they been invited to participate in the legislative process.

As for the necessity and proportionality of the legal measures against the foreign universities, it is important to note that the operation of these institutions has been well-familiar to the Hungarian authorities. In the heat of the protest against the bill, the Education Authority confirmed that CEU had met the conditions of operation in Hungary under the existing legal framework. Thus, the regulatory impetus and especially the special emergency procedure with which the bill was passed in Parliament are hard to justify even at first sight.

As for the conditions in the amended higher education law, one cannot help but notice that the overwhelming majority of the affected institutions do not meet them at the time of their adoption and would also find it most challenging to comply with them in the immediate future. Under the newly passed amendment they would need to broker an international agreement and open a campus in a second country where they are not present at the moment. This is hardly a coincidence in the case of a bill which affects roughly two dozen institutions which are well-familiar to the very ministry which prepared the bill to re-regulate foreign actors in the education sector.

As for the conditions themselves, the idea that foreign universities can only operate in Hungary based on an international agreement deserves special attention. This condition in and of itself introduces the sovereign to the picture with its might and doubles its weight. It is not only that the sovereign sets a condition, but it also takes the sovereign’s benevolence for a foreign university to be able to meet this condition. If the Hungarian government were not in the mood to compromise with a foreign government on the principles of establishing a university, this statutory condition cannot be met by the organization to which it applies.

Furthermore, a last minute rider to the bill further specified this requirement: for federal entities the Hungarian government is expected to conclude an international agreement with the federal unit in which the university had been accredited, based on the prior approval of the respective federal government. Now, in case such a legal construct (i.e. a state-level treaty with prior federal consent) does not exist in the foreign jurisdiction in question, the condition for the operation of a foreign university set by Hungarian law simply cannot be met.

In brief, these adopted and planned laws are best seen as the decisions of a free-roaming sovereign striking its subjects at will, with the force of the law. This strategy is familiar in Hungary: when a new law on churches was enacted in 2011 to divest hundreds of religious organizations of their legal entity status, the reasons were clearly disclosed in the legislative debate: it is for Parliament, as the representative of the sovereign will of the people, to decide who is a church and who is not. All the Hungarian government learnt since 2011 is that when selecting friends from foes, the sovereign is better off disguising its naked will and political preferences as a national security consideration or a counter-terror measure. Picking on universities and civil society organizations was certainly a smart move: unlike churches the legal entity status of which is considered to be part and parcel of freedom of religion in international and European human rights law, the jurisprudence on academic freedom or the freedom of association is much less developed. As a result, the sovereign may have a broader margin of appreciation to discipline unwanted organizations even in the eyes of a well-meaning regional court.

Why should the EU care?

Recent developments in Hungary have grave relevance for the EU, symbolic and political, as well as constitutional.

It is true that the Hungarian-born U.S. financier and philanthropist George Soros has been the favorite villain of the Hungarian government for years, but he is not the only one. The EU comes as a close second. Civil society organizations partly funded by Mr Soros’ Open Society Foundations have received ample criticism as unpatriotic and destructive. The fact that the same NGOs would also accept funds in the EEA scheme (commonly known as Norwegian funds in Hungary) has singled them out for continued governmental harassment for years.

The draft NGO bill comes one step closer to vilifying EU money: when calculating the 7.2M HUF base-line, EU funding which is not distributed by Hungarian public institutions counts as funding of unknown origin. Thus, if an NGO receives funding from EU institutions directly, it is treated as potentially being under the influence of unknown foreign sources (draft NGO bill, Article 1(3)).

The symbolic and political relevance of recent Hungarian events was put succinctly by the German President Frank-Walter Steinmeier to the European Parliament on April 4, 2017:

“… if we want to be a lighthouse in the world for the rule of law and for human rights, then we cannot ignore, when these foundations are shaken in the midst of Europe. Europe, then, must not be silent, when civil society, even academia – as now at Central European University, Budapest – are deprived of the air to breathe.”

These are important words at a time when European political leaders are still indebted to the Hungarian Prime Minister for putting his weight behind Donald Tusk as the president of the European Council. Prime Minister Orbán, as a true European citizen, said that his priority was Europe’s operability, despite the Polish government’s disapproval. It is in this light that the leaders and the members of the European People’s Party (as well as their voters) may wish to consider President Steinmeier’s words.

On the constitutional level, one may see the awakening of the Hungarian sovereign as a testing of the limits of the European constitutional construct, using the leeway given to the member states to define and defend their national identities under TEU Article 4(2). Article 4(2) as part of the script on subsidiarity, a foundational premise of the EU. Foundational as it may be, it competes with forces which pull towards defining and defending a European constitutional core.

So far much ink has been spilled on reconciling national constitutional identity with the premises of the common European constitutional project. It is time to pay closer attention to the national security exception, which Article 4(2) makes the “sole responsibility” of the member states. If used lightly and carelessly, the national security exception can be a much stronger centrifugal force in Europe than cries of constitutional identity could ever be.

It is hardly by accident that these new Hungarian legal measures are phrased in terms of national security and courter-terrorism. They appeal to the constitutional exception in Article 4(2) as well as to the sentiments of those governments which have been targeted by terrorist attacks. Foreign observers and their governments will be sympathetic to such reasons in the age of global terror and will not be ready to suspect foul play when the sovereign speaks the language of the law. After all, many such observers live in countries where charities and private foundations are used by the supporters of global terrorism to channel funds. From there it may be hard to fathom that in other countries the unwanted foreign influence is the one which defends such ideals as the rule of law and fundamental rights from invasions by its very own government. Therefore, it is all the more important that European constitutional and political actors realize: The carefully crafted new Hungarian laws use the cloak of national security to stab the rule of law, as understood in Europe, in the heart.

(*) Renáta Uitz is professor of comparative constitutional law, chair of the Comparative Constitutional Law program and co-director (with Károly Bárd) of the clinical specialization at CEU Legal Studies. She obtained her Doctor iuris degree (with summa cum laude) at Eotvos Lorant University, Faculty of Law in 1996 and received an LLM in Comparative Constitutional Law at CEU Legal studies in the following year. Her S.J.D. (summa cum laude) in comparative constitutional law earned in 2001 is also from CEU Legal Studies. She started teaching at CEU in 2001, and became chair of the Comparative Constitutional Law program in 2007. Her teaching covers subjects in comparative constitutional law in Europe and North America, transitional justice and human rights protection with special emphasis on the enforcement of constitutional rights and on issues of bodily privacy and sexuality. Theories and practices of good governance in and after democratic transition, and the role of courts in constructing the constitutional subject are at the center of her research interests. “Constitutions, Courts and History” (2004) was her first book, while her most recent is “Freedom of Religion in European Constitutional and International Case Law” (2007). In addition she is the author of over 30 articles and book chapters which appeared mainly in English, Hungarian and Russian. She regularly speaks at international conferences on comparative constitutional subjects.