Frontex – A Rising Star of Declining Europe? Frontex and the Duty to Respect and Protect Human Rights (Verfassungsblog)

by Constantin Hruschka (Fr 7 Feb 2020)

The discussion on human rights obligations and potential human rights violations has been part of the history of Frontex ever since the agency´s foundation in 2004. Yet, the focus of the human rights discourse on Frontex is on the protection against human rights violations ‘committed by Frontex’. Much less attention, though, is paid to the duty of Frontex to respect and protect human rights in its operations. The call for streamlining fundamental rights protection into all Frontex operations is, obviously, less likely to gain public attention than a law suit against an EU agency. Mindful of this important gap in the current human rights debate surrounding Frontex, this blogpost will look at both levels of human rights protection and suggest a way forward in light of the agency’s extended tasks and competencies.

I. The tension between human rights and efficient border controls

As its name suggests, the main aim of Frontex is to avoid irregular border crossings of the external borders. At the same time, the mandate of Frontex clearly states that ‘it is necessary to act in full respect of fundamental rights’ (Recital 1 of the 2019 Regulation). There is thus an obvious tension between a control logic and a human rights based approach to the European migration policy (see also Recital 1 of the 2011 Regulation). This tension became especially visible with regard to Frontex operations in the Mediterranean Sea. In 2008, the former Frontex director, Ilka Laitinen, stated that Operation Nautilus had failed, because it actually facilitated irregular entries of persons rescued at sea. By its mere presence (and adherence to human rights standards) Frontex was portrayed as a smuggler agency by its own director. Nevertheless, Laitinen admitted in 2013 that Frontex had been involved in push backs at the external borders. Against this backdrop, fundamental rights protection became a topical issue regarding the work of Frontex as a whole.

II. Embedded of fundamental rights protection?

II. 1. Enhanced fundamental rights protection over time

Looking at the question both from a temporal and a numerical point of view, the protection of fundamental rights plays an increasing role in the legal basis for the work of Frontex. In 2004, only Recital 22 of Regulation No. 2007/2004 referred to fundamental rights protection in an affirmative way when stating the (politically) necessary, namely that ‘[t]his Regulation respects the fundamental rights and observes the principles recognized by Article 6(2) of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union.’ In contrast, the 2011 amendment called in its Recital 1 more generally for the ‘development of a forward-looking and comprehensive European migration policy based on human rights’ and made reference to ‘fundamental rights’ over 30 times. More substantially, the 2011 overhaul introduced the obligation of Frontex to develop a Fundamental Rights Strategy and a Code of Conduct as well as to install a Fundamental Rights Officer and a respective Consultative Forum. Moreover, the 2011 mandate revision foresaw a possibility to cooperate with the Fundamental Rights Agency (FRA) and ordered that the first evaluation report on the new Regulation includes ‘a specific analysis on the way the Charter of Fundamental Rights was complied with in the application of this Regulation.’ Following the trend, in the 2016 Regulation the term ‘fundamental rights’ is used over 100 times and in the Regulation (EU) 2019/1896 the term features over 230 times. This development shows increased attention for the protection of fundamental rights but also hints to the fact that this protection remains an unsolved issue within the work of Frontex.

II. 2. Challenging role and the need for control

The importance and relevance of human rights for Frontex’s mandate was highlighted by the CJEU in a judgment of 5 September 2012. The Court annulled Decision 2010/252/EU, which concerned the introduction of additional rules governing border surveillance at the external maritime borders, because it was not taken in accordance with the ordinary legislative procedure. The rules regarding the way Frontex may exercise its powers in such operations were, according to the CJEU, inappropriately labeled as an additional implementing measure under Article 12(5) of the 2006 Schengen Borders Code. Consequently, the CJEU pointed out (in para. 77) ‘that provisions on conferring powers of public authority on border guards […] mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.’

In 2019, reports by the Fundamental Rights Officer (March 2019) and the Consultative Forum (March 2019) still suggest that the mechanisms aiming at safeguarding human rights, including the complaint mechanism as well as the incorporation of a fundamental rights component in the training modules, have not been sufficiently effective to guarantee the respect for fundamental rights in all Frontex operations. The same seems to be less the case for return operations, most probably because of the existing system of forced-return monitors, the specific Code of Conduct for Return Operations, and the implementation of forced return monitoring projects carried out in cooperation with other actors.

In light of the persisting human rights protection deficiencies, the European legislator saw the need to stress underlying legal obligations that are rooted inter aliain Public International Law and EU law including but not limited to the Charter of Fundamental Rights. Consequently, recital 24 of the 2019 Regulation states that ‘[t]he extended tasks and competence of the Agency should be balanced with strengthened fundamental rights safeguards and increased accountability and liability, in particular in terms of the exercise of executive powers by the statutory staff’.

But even if the need for human rights protection is being widely accepted, including by the Frontex Regulation itself, an apparent implementation gap persists, and, what is more, legal remedies often lack effectiveness and efficiency. The complaint mechanism (now Article 111 of the 2019 Regulation) is institutionally weak and seldom used as it does not constitute an independent and effective legal remedy. What is more, the unsettled question of competency and effective control makes it difficult to assess against whom and in which forum to seek redress in the context of operations conducted by Frontex and Member States. The attribution and redress issue might become even more complicated if Frontex cooperates more extensively and out of its own competency with third countries. In order to avoid confusion and ineffectiveness of legal remedies, it would be necessary to establish a clear legal remedy scheme for all types of operations in which Frontex is involved. Lehnert has convincingly argued for a choice of the persons concerned regarding the addressee of a potential lawsuit in order to facilitate the effectiveness of legal remedies ‘against Frontex’, at least as long as the EU has not joined the ECHR.

II. 3. The relevance of human rights protection: returns and border controls

Fundamental rights protection is most acute in relation to returns and border controls. Concerning the first issue, namely returns, two levels are of particular importance: individual protection and independent monitoring. Regarding the former, the protection against refoulement (Article 19 CFR) and the protection of human dignity (Article 1 CFR) form the non-negotiable basis of fundamental rights protection. Yet, other consideration may equally play an important role, including vulnerabilities, the right to family union, or the best interests of children (as stated in Article 5 of the Returns Directive). The issue of return monitoring features prominently in the 2016 and the 2019 Regulations. However, the independence of the return monitoring is at risk given its full incorporation into the legal framework of Frontex and the constitution of the pool of forced-return monitors (Article 51 of the 2019 Regulation). This monitoring task deriving from Article 8(6) of the Returns Directive would be better placed with the Fundamental Rights Agency (FRA) in order to ensure independent monitoring.

When it comes to the second issue, namely border controls, the controls themselves have of course to abide by fundamental rights standards. This includes the dissemination of information on protection procedures and potential immediate returns that might follow a non-application (see also ECHR, Hirsi). Moreover, the surveillance of sea borders may inevitably lead to search and rescue activities. In this context, the agency’s Integrated Border Management (IBM) gains increasing attention including regarding the cooperation with and work in third countries. From a human rights perspective, the extraterritorial dimension of IBM lacks clear and workable fundamental rights protection standards. As operations in or with third countries are often coupled with the fight against cross-border crimes (smuggling and trafficking of human beings feature prominently in this area), information is mostly not readily available. In a relatively deferential judgment, the CJEU has on 27 November 2019 declined access to such information for security reasons (Case T-31/18), which makes it even more complicated to assess and address fundamental rights concerns in these operations.

Moreover, the respect for and protection of fundamental rights should be included into Frontex’s work related to risk management, migration management at large, all training activities (not only in specialized courses), and data exchange. As a matter of fact, data protection considerations are heavily underdeveloped in Frontex operations.

III. What Frontex has to say about fundamental rights protection

The 2018 activity report of Frontex suggests that fundamental rights protection is key to the agency’s work: Fundamental rights play an important role in the agency’s training curriculum and are currently also one of the 14 strategic action areas of Frontex. Yet, the main reference to the protection of fundamental rights and sensitivity towards potential human rights violations is efficiency: Protecting fundamental rights is presented as a means to enhance efficiency in the fight against cross border crimes as it facilitates the detection and identification of victims of trafficking.

Another observation concerns the language used by Frontex in its reports. The aim of respecting fundamental rights is presented as a balancing act between efficiency and (full) human rights protection. For example, ‘vulnerabilities’ may concern both borders—a ‘vulnerability assessment’ of borders is mandatory according to Article 32 of the 2019 Regulation—and persons—inter alia with the aim of identifying vulnerable persons according to Article 3(1)(a) of the 2019 Regulation. On a more general note, the use of this language appears to provide borders with personality and they also seem to have some kind of ethical standing and a right to be free from the risk of being violated. Moreover, this personalization is embedded into a security rhetoric that suggests a permanent threat by ‘irregular migration and cross-border crimes’ at the external borders and is often used in order to justify the use of technology and force.

The only exception to this efficiency-based approach to human rights protection is the principle of non-refoulement. This principle is presented as a non-negotiable key component of all Frontex measures. In practice, this principle also plays a vital role in shaping Frontex operations. Its relevance is further supported by the fact that in 2018, all three admissible complaints under Article 72 of the 2016 Regulation had at least a non-refoulement component. Looking at the Frontex reports, the main issue brought up by the Consultative Forum seems to be also the main challenge for fundamental rights in the agencies’ daily work: Are fundamental rights (just) one strategic action area or is the protection of fundamental rights a cross-cutting issue that needs to be mainstreamed into all action areas?

IV. Operationalizing fundamental rights protection—the way forward

In order to operationalize the respect for and the protection of fundamental rights the Consultative Forum has put forward some institutional considerations: On the EU level, the Consultative Forum suggests to enhance the involvement of the intra-Frontex human rights protections institutions (like the Fundamental Rights Officer and the Consultative Forum) and the intensification of intra-EU-cooperation, which in turn includes an important role for Fundamental Rights Agency as the competent EU agency in this area. On the international level, enhanced cooperation with IOM and UNHCR is mentioned as an additional safety and potentially supervisory net with regard to the adherence to international human rights standards.

It is argued in this blogpost that this cooperation should be formalized by cooperation agreements with the external institutions, especially in light of the agency’s new remit and geographical scope. From a human rights protection perspective, the cooperation with third countries must be accompanied by a monitoring component as well as a mechanism safeguarding the access to remedies. In a similar vein, it is recommended that impact assessments on fundamental rights should be mandatory for each of these measures as well as for return operations and physical border controls. Yet, formalizing these cooperation schemes requires some profound changes to the way Frontex operates with regard to the independence of monitors, the access to operational data, and the transparency of the operations in general. For the time being, though, strong and functioning legal remedies are underrepresented in most of Frontex activities, as is a fundamental rights friendly mindset.

Therefore, as long as the protection of fundamental rights is seen as an obstacle on the way to efficient and speedy procedures, persons subject to the effective control by Frontex are left with no other choice but to rely on national as well as European courts to bring claims. In the long run, the protection of fundamental rights can only be effectively guaranteed through appropriate procedures if the perceived contradiction of effective border management and rights protection is dissolved and replaced by a different mindset that is less fixated on controls and sanctions.

To conclude, operational practice has significantly enhanced the role of human rights in Frontex operations. While the 2019 Regulation reinforces this development on the regulatory level, the current human rights protection framework remains incomplete, in particular in light of weak or lacking complaint mechanisms. It is difficult to foresee whether the increase of human rights obligations for Frontex keeps up with the agency’s ever stronger institutional independence. Currently, the fundamental rights protection framework seems to lack the necessary mechanism for enforcement on different levels, in particular monitoring. As monitoring is a key component to supervise and implement human rights protection, it needs to be coupled with an effective and efficient complaint mechanism which is currently not the case: Human rights standards as well as ‘ethical standards’ for Frontex operations are (partly) blurred, and enforceable legal protection is lacking not least because the complaint mechanism of the Frontex Regulation that should provide for enhanced protection of fundamental rights is difficult to access and not fully independent as it is administered by the Frontex Fundamental Rights Officer.

Additionally, and even more importantly, a human rights culture needs to be fully established as outlined in the introduction to Frontex 2019 – in brief: ‘We also aim for Frontex to comply with the best EU standards for sound administrative and financial management and EU legal and ethical standards, which include fundamental rights.’ While strengthening the complaint mechanism to further the role of human rights may serve as a crutch for the distressed protection of fundamental rights, it will never be more than a lame duck if this protection is not fully embedded in the agency’s working culture. So although structural changes remain key to the (future) protection of fundamental rights, a mentality shift within Frontex will make all the difference.

Refugee camps at EU external borders, the question of the Union’s responsibility, and the potential of EU public liability law (Verfassungsblog)

by Catharina Ziebritzki Mi 5 Feb 2020

‘The EU hotspot approach as implemented in Greece is the single most worrying fundamental rights issue that we are confronting anywhere in the European Union’. This quote by the head of the EU Agency for Fundamental Rights (FRA) might sound drastic. Yet, it is not far-fetched. EU bodiesnational institutionsinternational organisations including the Council of Europe, and NGOs, have, during the past four years, continuously documented that the asylum processing centres at the EU external borders lead to fundamental rights violations on a daily basis. The EU hotspot administration indeed jeopardises the respect for fundamental rights and the rule of law as enshrined in Article 2 TEU.

Usually, when something is going wrong, a first step towards improvement is to ask: who is responsible? And yet, with regard to EU hotspots, this question is still subject to debate. Responsibilities are effectively blurred by the sheer number of actors operating in those centres combined with a lack of legal clarity. On the political level, this leads to responsibility-shifting between the European Commission, Greece and local municipalities. On the legal level, so far, only Greece as the host Member State is considered responsible, namely under the ECHR. The considerable involvement of the Commission and EU agencies—in particular Frontex and the European Asylum Support Office (EASO)— however suggests to look to EU law and to examine whether and to what extent the European Union is legally responsible.

It is argued here that EU public liability law—more specifically: an action for damages against the Union or its agencies Frontex and EASO—has a particular potential in this context. First, it would help secure the right to an effective remedy to concerned individuals. Second, it would thereby serve to address systemic deficiencies in the EU hotspot administration. Third, it could ultimately provide an answer to the crucial question of whether the Union is responsible for fundamental rights violations in EU hotspots.

1 – The violation of fundamental rights in EU hotspots—systemic deficiencies

In 2015, the Commission put forward the EU hotspot approach as part of the European Agenda on Migration. While the approach is implemented both in Italy and Greece, this contribution focuses on the latter. Each of the five EU hotspots in Greece, located on Aegean islands, consist of a refugee camp, an administrative complex, and, in some cases, a pre-removal detention facility. In March 2016, with the implementation of the EU-Turkey Statement, the EU hotspots were transformed into return centres meaning that the asylum procedure and the reception conditions were adapted to the aim of return. Currently, about 41,000 persons are staying in those camps.

The approach of ‘processing asylum claims at borders, particularly when these centres are located in relatively remote locations, creates fundamental rights challenges that appear almost unsurmountable’. This assessment by FRA seems plausible given the empirical evidence provided by the already four-years long ‘hotspot experiment’. More specifically, FRA finds fundamental rights risks with regard to, inter alia, Articles 1, 4, 5(3), 6, 7, 18 and 19, 20 and 21, 24, 25 and 26, 41 and 47 of the EU Charter on Fundamental Rights (ChFR). Two aspects deserve particular attention.

First, the reception conditions are far from complying with any standard of EU secondary law and wholly inadequate for human beings: Shelter is insufficient (if there is any), there exists exposure to extreme weather conditions, a high risk of sexual, gender-based and other forms of violence, a lack of medical services despite widespread physical and severe psychological health issues, insufficient and inadequate sanitary facilities, and a lack of access to education or social services. Taken as a whole, the reception conditions arguably amount to a violation of Article 4 ChFR prohibiting inhuman or degrading treatment, at least insofar as vulnerable persons are concerned. This follows from the standards established by the CJEU from N.S. to Jawo, taking into account the case law of the ECtHR from M.S.S. to Tarakhel. Concerning EU hotspots specifically, the ECtHR seems to slowly change its jurisprudence: In contrast to earlier decisions concerning the situation in March 2016, a violation of Article 3 ECHR was found in more recent interim measures concerning vulnerable persons. Even if one assumes that a violation of Article 4 ChFR can be found only for vulnerable persons, this still affects a considerable number of people.

Second, a deportation to Turkey, at least in the vast majority of cases, would be in breach of the Asylum Procedures Directive, since Turkey cannot be considered as safe third country or first country of asylum. This is, despite the differing decision of the Greek Council of State, in line with the view of the Greek administration (and the Administrative Court of Munich). Considering the situation in Turkey, it seems that, at least for the vast majority of persons, the deportation would amount to a violation of the non-refoulement principle as enshrined in Articles 4, 18, 19(2) ChFR. This follows from the minimum standards established by the ECtHR in Ilias and Ahmad with regard to Article 3 ECHR. (The CJEU has not yet established the constitutional standards following from Articles 4, 18, 19(2) ChFR: The decision in Alheto concerns a specific case, and the decision in LH  remains to be awaited). With regard to the situation in Turkey specifically, an individual complaint before the ECtHR is pending.

Those two aspects speak in favour of describing the implementation of the EU hotspot as systemically deficient. Both a breach of Article 4 ChFR as well as breach of the non-refoulement principle as enshrined in Article 4, 18, 19(2) ChFR meet the threshold of being relevant for Article 2 TEU. Further, both breaches are systemic in the sense of widespread or inherent to the situation: An arguable limitation to the sub-group of vulnerable persons does not hinder the qualification as systemic. Due to the design of EU hotspots as return centres, the question whether deportations to Turkey violate the non-refoulement principle is, despite the relatively low numbers of returns, of structural relevance.

2 – The considerable involvement of the Union in the EU hotspot administration

Against this background, it is worthwhile to have a closer look at the involvement of the Union in the EU hotspot administration. From the perspective of EU administrative law, the distinctive characteristic of EU hotspots, in comparison to other asylum processing centres at EU external borders, is the close administrative cooperation between Union bodies and national authorities. This becomes clear already from Article 2(23) Frontex Regulation defining a ‘hotspot area’ as an area ‘in which the host Member State, the Commission, relevant Union agencies and participating Member States cooperate, with the aim of managing an existing or potential disproportionate migratory challenge characterised by a significant increase in the number of migrants arriving at the external borders’.

The EU hotspot administration can hence be described as the paradigm example for advanced vertical administrative cooperation within the integrated European asylum administration. This means that several EU agencies—such as Frontex, EASO, Europol, and Eurojust—cooperate with several national authorities—such as asylum service, reception service, police, and army. In practice, international organisations such as UNHCR and IOM, several NGOs, and a private security company operate in those centres in addition.

The operational level—the role of Frontex and EASO

On the operational level, migration management support teams (MMST) deployed by the EU agencies support the Greek authorities. The distinctive feature of the MMST lies, inter alia, in the close inter-agency cooperation. While Frontex supports in particular by registering applicants and escorting deportations to TurkeyEASO supports notably by conducting asylum interviews and drafting legal opinions recommending the acceptance or rejection of the concerned individual’s claim for international protection.

With a view to EU public liability law, it should be kept in mind that the responsibility to issue administrative decisions lies with the host Member State. The role of Frontex and EASO is to provide non-formally binding administrative support. However, the line between formally-binding and non-formally binding is not that easy to draw: Non-formally binding administrative conduct can have de facto binding effects on national authorities, as illustrated by EASO’s involvement in the assessment of asylum claims. And non-formally binding administrative conduct can have quite significant effects on individuals, in particular since the reformed Frontex Regulation does not exclude the use of force by Frontex MMST staff.

The coordination and monitoring level—the role of the Commission and the EURTF

On the coordination and monitoring level, responsibility lies with the European Commission, who is supported by Frontex, EASO, and the other relevant EU agencies in this respect. Article 40(3) Frontex Regulation provides that the ‘Commission, in cooperation with the host Member State and the relevant Union bodies, offices and agencies (…) shall be responsible for the coordination of the activities of the migration management support teams.’ The Commission performs this task within the framework of the EU Regional Task Force (EURTF). The EURTF is a coordination structure which has been established without a clear legal basis and operates under non-public ‘terms of cooperation’ and ‘rules of procedure’.

With a view to EU public liability law, it should be noted that the Commission’s mandate includes the supervisory obligation to ensure that the EU hotspot approach is implemented in line with EU law. This becomes clear already from Article 40(3) Frontex Regulation, read in light of its Article 1 and recitals. Further, and more importantly, this follows from Article 17(1) TEU, as interpreted by the CJEU in Ledra, as well as from Article 51 ChFR.

3 – The Potential of EU Public Liability Law—enforcing EU law from below

The Commission, Frontex, and EASO are hence closely involved in the EU hotspot administration which is systemically deficient, and leads to fundamental rights violations in individual cases. This gives rise to the crucial question: Can the Union be held responsible? A legal regime which could provide an answer to this question would ideally grant the right to an effective remedy to the concerned individual and enforce the rule of EU law more generally, while at the same time allowing for the attribution of responsibility among the involved actors.

It is argued here that EU public liability law has a particular potential in this context due to its subjective and objective legal protection function combined with its attribution function. More specifically, the particular potential lies in the action for damages against the Union or its agencies—as codified in Article 340(2) TFEU respectively Article 97(4), 98 Frontex Regulation, and Article 45(3) EASO Regulation. In the latter case, the agency would be liable under its founding Regulation in a first degree, and the Union, since it cannot exclude its liability under Article 340(2) TFEU by adopting secondary law, in a second degree.

To begin with, it seems that, among the approaches addressing systemic deficiencies by enforcing EU law, one can distinguish between top-down procedures, initiated by the Commission as guardian of the treaties, and bottom-up procedures, initiated by individuals. Both the preliminary reference procedure, as the standard mechanism in the internal market, as well as procedures in which individuals claim their rights directly before the CJEU, as standard mechanism in competition or state aid law, form part of the latter.

In the case of EU hotspots, any procedure depending on the Commission’s initiative seems unsuitable to enforce EU law due to the Commission’s involvement in the EU hotspot administration. The preliminary reference procedure is moreover of little use already because an action for damages against the Union cannot be brought before national courts. What remains are the procedures granting the individual direct access to the CJEU.

The action for damages is the most suitable procedure in this context. Notably, it could grant the right to an effective remedy, enshrined in Article 47 ChFR, in a particularly challenging context. The increasingly integrated European administration more generally raises challenges as to how to guarantee the right to an effective remedy. In the case of EU hotspots, the challenge arises, inter alia, because the relevant administrative conduct is of non-formally binding nature and consists in omissions to comply with supervisory obligations. While the action for annulment does not provide a remedy in those cases, the action for damages does. This is indeed the reason why the action of damages has become the main action ensuring the right to an effective remedy—as examined in particular by Timo Rademacher, and as analysed with regard to Frontex in particular by Melanie Fink. Finally, EU public liability law has an attribution function: an action for damages against the Union would not exclude liability of the host Member State or the other Member States under the case law following Francovich. Quite to the contrary, EU public liability law allows to assess each contribution, and the Union and the Member States can be held jointly liable.

Against this background, one might wonder: If the situation in the EU hotspots is really so bad, and if EU public liability law really has such potential, why did nobody file an action for damages against the Union yet? To be sure, the CJEU’s dismissal of the action for annulment against the EU-Turkey Statement, which was in essence directed against the implementation of the return policy in the EU Hotspots, does not preclude an action for damages against the Union based on the systemically deficient EU hotspot administration: The CJEU’s finding, namely that the Union did not conclude the EU Turkey Statement, is not relevant to the question of whether the Union is liable due to its administrative involvement in the EU hotspot administration. Rather, practical obstacles such as insufficient capacity of legal aid may provide the reasons: The few lawyers working under extreme pressure in the EU hotspots might come to the conclusion that it is simply not feasible to invest a considerable amount of time and resources in a procedure with uncertain outcome.

4 – The critical question of who is responsible—holding the Union liable?

Now, assumed that a person succeeded in filing an action against the Union before the CJEU, and that he or she claimed damages invoking the dire living conditions in the EU hotspot or his or her deportation to Turkey: Would the Union indeed be held liable?

Finding an answer to this question requires a close analysis of the extensive case law on EU public liability law. According to the CJEU’s jurisprudence, non-contractual liability under Article 340(2) TFEU arises if unlawful conduct of a Union body, qualifying as a sufficiently serious breach of a rule conferring rights on individuals, has caused a damage. Liability under Articles 97(4), 98 Frontex Regulation and respectively Article 45(3) EASO Regulation arises under the same conditions. Given the scope of this post, the argument here is limited to considering on the basis of which administrative conduct liability might arise, and shortly outlining two crucial legal issues.

Frontex could incur liability based on its registration of applicants in the EU hotspots and based on its escorting of deportations to Turkey. The former contributes, at least insofar as vulnerable persons are concerned, to keeping applicants in conditions incompatible with Article 4 ChFR, and the latter, at least in most cases, to a violation of the non-refoulement principle as enshrined in Articles 4, 18, 19(2) ChFR. Both could be in breach of Frontex’s obligation to respect fundamental rights under Articles 1, 36(2), 44(3), 48 Frontex Regulation, Article 51 ChFR. Further, the conclusion of the relevant Operating Plan, or the omission to withdraw from the administrative cooperation despite knowledge about systemic fundamental rights violations could be in breach of Articles 1, 36(2), 46(4) Frontex Regulation, Article 51 ChFR. (On supervisory obligations conferring rights upon individuals see the CJEU’s case law, notably Ledra.) In the same vein, EASO could incur liability based on its conducting of asylum interviews, drafting legal opinions, and adopting the relevant Operating Plan and the Standard Operating Procedures, which could be in breach of EASO’s obligations to respect fundamental rights. Finally, the Commission could incur liability based on its failure to adequately exercise its supervisory obligations. The failure to ensure the implementation of the EU hotspot approach in compliance with EU law could amount to a breach of Article 40(3) Frontex Regulation, Article 17(1) TEU, Article 51 ChFR. (On administrative omission see the CJEU’s case law, Kampffmeyer, and more recently Ledra, which confirms that the Commission’s omission to effectively ensure that Member States act in compliance with EU law may incur liability.)

To be sure, several legal issues would need to be resolved. Notably, the question arises to which entity administrative conduct of staff seconded to the EU agencies must be attributed. To give an example, the question is whether the conduct of a German officer seconded to Frontex and deployed to Greece as part of an MMST is to be considered as an act of Germany, of Greece, or of Frontex. Existing doctrinal analysis mainly suggests attribution to the host Member State due to the internal decision-making structure. However, one could also argue that the external appearance of the conduct towards a reasonable addressee must be taken into account in addition—which means that the appearance of the seconded staff’s conduct as conduct of the agency speaks in favour of attribution to the latter. The CJEU’s decision in A.G.M.-COS.MET as well as the right to a remedy, which cannot be effectively exercised if the individual is required to analyse the agency’s internal decision-making structure in order to know against whom to file an action, suggest such a reading.

Another legal issue arises in the context of causation, namely: whether non-formally binding administrative conduct may incur liability. The question is whether the ‘sufficiently direct link’ required for causation is ‘broken’ by the administrative decision of the host Member State. In contrast to its earlier jurisprudence, the CJEU in KYDEP and similar cases acknowledged that even a telefax by the Commission may, in principle, incur liability of the Union. It remains to be discussed whether later case law again overturned the KYDEP doctrine. Another approach, proposed by Melanie Fink, is to transfer the differentiation between primary and attributed responsibility, based on the Draft Articles on State Responsibility, into EU public liability law. A further discussion of those issues would go far beyond the scope of this contribution.

Whether the Union actually is liable for fundamental rights violations in EU hotspots hence remains to be answered. In other words, the potential of EU public liability law in the context of EU hotspots remains to be unfolded. And this, to begin with, requires a closer doctrinal analysis of the CJEU’s case law.

5 – EU public liability law as a limit to externalisation policies

Current EU migration and asylum policy relies, not fully, but to an important extent, on externalising the challenge of dealing with enhanced forced migration towards Europe. The challenge is often either put on third countries, or, where this is not possible, on Member States located at the EU external border. This approach leads to large scale fundamental rights violations—despite the difficulties of ECHR and EU law to address situations characterised by extraterritorialisation and outsourcing.

EU hotspots can be described as a paradigm example in this regard. As externalisation has an ‘out of sight, out of mind’ effect, it seems possible to forget about daily fundamental rights violations at the EU’s external borders. EU constitutional law however calls into question whether mere externalisation to Member States located at the EU external border is really sufficient to wash the Union’s and the other Member States’ hands of responsibility. This would indeed be quite strange, not only in light of the noble values enshrined in Article 2 TEU, but also given that the European Asylum System is conceived as a Common one.

Brexit and its consequences for cooperation in criminal matters (European Law Blog)

3 FEBRUARY 2020/ BY CHLOÉ BRIÈRE

On January 31st, 2020, the United Kingdom withdrew from the European Union, and their mutual relationship entered in a phase of transition. After 47 years of membership, the withdrawal led to a series of changes in various policy areas, in which the UK, as an EU Member State, cooperated with its counterparts. This notably concerns police and judicial cooperation in criminal matters, and the consequences of Brexit in this particular field will be our focus.

Police and judicial cooperation in criminal matters is not necessarily the most discussed areas of mutual cooperation between EU Member States. Yet the instruments elaborated in this field are often relied upon in the background of highly visible cases, among which the emission of European arrest warrants (EAWs) against Catalan politicians, like Carlos Puigdemont, or the creation of a joint investigation team between France and Belgium after the Paris attacks in November 2015. These instruments are also frequently relied upon by British authorities, such as in the course of the investigations that were launched after the macabre discovery of 39 bodies in the “Essex Lorry”. The investigators retraced its movement from Bulgaria to the UK, through Belgium, notably with the assistance of one of the EU specialized agencies, Europol, and EAWs were issued against a person residing in Ireland suspected to have been involved in the criminal operation.

The UK’s withdrawal from the EU will have an impact on its participation in such cooperation. To understand the consequences of Brexit in this field, the present contribution will retrace the role of the UK in the development of the EU area of criminal justice (1). It will then discuss the regime applicable during the transition period, and pinpoint some of the identifiable shortcomings (2). It will finally address the possible future modalities of cooperation between the UK and the EU (3).

  1. The role of the United Kingdom in the development of the EU area of criminal justice

The role of the United Kingdom in this field is inextricably linked to its attitude towards an increased cooperation between EU Member States in criminal justice, a field very close to the powers of the State to ensure and preserve national security, and thus also very close to the States’ sovereignty. The UK’s attitude in this regard would be best summarized as “it’s complicated”.

At first, the United Kingdom may have appeared as a state with a certain reluctance to develop EU instruments supporting cooperation in criminal matters. With the entry into force of the Lisbon Treaty the country extended the specific opt-out regime that applied previously to measures regarding visa, asylum and immigration. By virtue of this opt-out, provided for in Protocol No 21, the UK, together with Ireland, was not bound by measures adopted in the framework of the Area of Freedom, Security and Justice, nor by international agreements concluded in this field, or by judgments of the Court of justice of the EU. This opt-out regime was accompanied with a discretionary opt-in, which offered to the country the possibility to participate in new EU instruments whenever this was considered relevant. The UK exercised that possibility regularly, either from the moment an instrument was proposed, like for the Directive on the European Investigation Order (EIO), or after its adoption, like for the Europol Regulation.

In addition of this opt-out / opt-in regime, the UK also obtained a specific transitional regime concerning the 130 EU criminal justice instruments adopted before the entry into force of the Lisbon Treaty. Among these, were included for instance the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), or Framework Decisions on the Transfer of Prisoners (2008/909/JHA) or on the recognition of probation measures and alternative sanctions (2008/9457/JHA). The Lisbon Treaty foresaw a specific legal regime for these instruments (Protocol No 36, Article 10), which remain in force and are for some still applicable today. From 2009 to 2014, their previous regime would continue to apply (optional jurisdiction of the CJEU and no infringement proceedings) and since December 2014, these instruments would be subject to the ordinary EU law regime (full jurisdictions of the CJEU and infringement proceedings). The United Kingdom was the only Member State that was recognized the possibility to withdraw from these instruments before the end of the transitional period, and the possibility to notify its intention to participate again in these instruments. In application of this Protocol, in 2014, a first cliff-edge scenario took place, as the UK withdrew from all these 130 instruments, and only chose to “opt-back-in” in 35 of them.

This specific regimes allowed for the UK’s participation “à la carte” in the EU area of criminal justice, and this was particularly noticeable when comparing the UK’s participation in instruments favouring a more effective cooperation, like the EIO Directive, and the UK’s non-participation in other key instruments, such as the Directive on the right of access to a lawyer.

Yet, the United Kingdom has also been a driving force in the establishment of the EU area of criminal justice. The principle of mutual recognition was first put forward by Home Secretary Jack Straw at the Cardiff European Council in 1998, and later proclaimed in the Tampere European Council conclusions of 1999. This principle is since then considered as the cornerstone for judicial cooperation in criminal matters, and it constitutes the basis of many instruments of judicial cooperation. The UK has also strongly supported and used very frequently certain EU criminal law instruments, such as the EAW. As an illustration, according to the National Crime Agency, from 2004 to 2016, the the UK surrendered almost 10,000 individuals to other EU Member States and more than 1,400 requested people were returned to the UK. Furthermore, the United Kingdom has had a significant weight in the development of Europol and Eurojust, the two European agencies, competent to support and assist cross-border cooperation between police and judicial authorities. The United Kingdom is for instance known as the second largest contributor to Europol information systems, and British nationals have exercised strategic positions in these agencies. Two out of the five presidents of Eurojust were British, and Sir Rob Wainwright has been the director of Europol from 2009 to 2018.

The United Kingdom has thus played a contrasted but essential role in the development of the EU area of criminal justice. The specific regimes it obtained did not prevent it from becoming a key partner, with whom EU Member States developed a strong and well-established cooperation in criminal matters.

  1. The regime applicable during the transition period

With the UK’s withdrawal from the EU, the modalities of its cooperation with other EU Member States in criminal matters are bound to change. In this section, we will focus on the Withdrawal Agreement, which defines the legal regime governing police and judicial cooperation in criminal matters during the transition period. The relevant provisions were marginally modified during the negotiations which led to the conclusion of a revised withdrawal agreement on October 17th, 2019.

The agreement foresees various scenarios regarding the UK’s participation in the EU area of criminal justice. In sum, the Withdrawal Agreement allows for the preservation of most of the modalities of cooperation in criminal matters between the EU and the UK for the duration of the transition period.

The general provisions have an impact on the UK’s participation in the work of the two EU criminal justice agencies. As from February 1st, as EU law remains applicable until the end of the transition period, the UK remains an active participant to the activities of Europol and Eurojust, but it does no longer participate in their management bodies (Art. 7). The UK also retains until the end of the transition period its access to the databases, networks and databases managed by Europol and Eurojust (Art. 8). In other areas of criminal justice cooperation, the UK’s withdrawal has a limited  impact, provided that the requests for cooperation are made before the end of the transition period. This is for instance the case regarding ongoing judicial cooperation proceedings. According to Article 63 of the Withdrawal Agreement, only a series of instruments of judicial cooperation, 12 in total, continue to apply. As the UK had previously tailored its participation in pre- and post-Lisbon EU criminal law instruments, these 12 instruments represent the main ones for judicial cooperation in criminal matters. Are for instance included the Framework Decision on the EAW, or the EIO Directive. The same can be said regarding instruments on law enforcement cooperation and exchange of information, as the main ones will remain applicable (Art. 63). The UK authorities also retain the possibility to continue their participation in joint investigation teams, and to share and request information from Eurojust. The main change concerns the participation in new EU criminal law measures, in respect of which two options apply. For proposals amending, replacing or building upon measures in which the UK previously opted in, the UK has the possibility to opt in. However, for new proposals, the UK does not have the right to opt in, and it may only be invited to cooperate with the EU Member States under the modalities foreseen for third countries.

However, already in this legal regime, doubts arise, especially regarding the continuous execution of EAWs issued by the United Kingdom. Prior to the UK’s withdrawal from the EU, a person subjected to an EAW issued by UK authorities attempted to use a “Brexit argument” to prevent his surrender to the UK. He argued that the uncertainty of the law applicable in the UK after its withdrawal from the EU could not guarantee that he continues to benefit from the right he enjoys under EU law. The CJEU had the opportunity in the case RO (C-327/18 PPU, 18 September 2018) to dismiss this argument. The Court considered that there was a presumption that the UK will apply the substantive content of the rights derived from the EAW Framework Decision, relying notably on the incorporation into British national law of provisions of the European Convention on Human Rights and the European Convention on Extradition (para. 61). The Court nevertheless indicated the possibility to refuse to execute an EAW only if there is concrete evidence to the contrary (ibid.), in line with its case law since its judgment in the case Aranyosi and Căldăraru (Joined Cases C‑404/15 and C‑659/15 PPU, 5 April 2016),regarding the risk of fundamental rights’ violations in the execution of EAWs. This judgment is to keep in mind when considering the execution of EAWs during the transition period, which would continue, unless a real and individual risk of violation can be demonstrated.

Furthermore, some Member States decided to make use of the possibility provided for in Article 185 of the Withdrawal Agreement. This provision allows Member States, due to reasons related to fundamental principles of their national law, to declare that, during the transition period, their national executing judicial authorities may refuse to surrender its nationals to the United Kingdom pursuant to an EAW. This refers to the constitutional limits regarding the extradition to nationals outside the EU, which is for instance foreseen in Germany, where the Constitution limits the extradition of nationals to situations in which the request comes from an EU Member State and/or an international court. Only three Member States, namely Germany, Austria and Slovenia, made such notification by January 28th, and the United Kingdom has now one month to notify whether its executing judicial authorities may refuse to surrender its nationals to those Members States. The practical impact of such notifications may be limited, considering that Germany, Austria and Slovenia are not, according to the National Crime Agency’s statistics, the EU Member States sending the highest numbers of EAWs to the UK. These notifications are nonetheless particularly symbolic, and mark as of February 1st, a decrease in the intensity of cooperation in criminal matters between the UK and the EU.

  1. Possible future modalities of cooperation between the UK and the EU

As in many other policy areas, the discussions regarding the future relationship between the UK and the EU will be crucial in the coming months, and this is also true for their cooperation in criminal matters.

Both parties share a mutual interest in maintaining a close cooperation. This was already mentioned in the negotiating guidelines adopted by the European Council in March 2018, and it was taken on in the revised Political Declaration of  October 17th, 2019. The future ambitious, broad, deep and flexible partnership between the EU and the UK “will provide for comprehensive, close, balanced and reciprocal law enforcement and judicial cooperation in criminal matters” (para. 80). The latter should notably be “underpinned by long-standing commitments to the fundamental rights of individuals, including continued adherence and giving effect to the ECHR, and adequate protection of personal data, (…) and to the transnational ne bis in idem principle and procedural rights” (para. 81). However, these elements of the Political Declaration remain vague and their concrete substance is left to the negotiations between the UK and the EU. As of February 1st, a lot of uncertainty remains. The European Commission has still to present its recommendation for a negotiating mandate, which shall be released on Monday 3rd February, and adopted on February 25th, 2020.  The British Prime Minister Boris Johnson is also expected to make on February 3rd, a speech setting out his red lines on the future EU-UK relationship. This would outline the positions of the two parties before the first round of negotiations scheduled for early March. These events would allow us to know more about the envisaged future relationship between the UK and the EU, including regarding their cooperation in criminal matters.

In that field, the main point of discussion would most probably be whether the UK should be treated like other third countries which are not part of the Schengen area and do not apply free movement of persons; or whether it should, as a former EU Member State and a privileged partner, benefit from specific arrangements. From the perspective of the European Commission (and as further supported by the slides released in January 2020), existing forms of cooperation in criminal matters with Denmark and third countries participating to the Schengen area constitute the basis (and the potential limit) for developing the future cooperation between the UK and the EU. As an example, regarding the access to Europol’s databases after the end of the transition period, the cooperation agreement signed between Denmark and the agency has been referred to as a form of cooperation that the future EU-UK cooperation would not be able to provide for. Under this text, Denmark benefits from the most advanced cooperation agreement, but under a regime which is not equivalent to that of a Member State. The country has an observer status, which is subject to a series of conditions, including the jurisdiction of the CJEU. Danish authorities have no direct access to Europol databases and liaison officers only have indirect access to the data. A future cooperation agreement between the UK and Europol will most likely contain lesser forms of cooperation (e.g. access to Secure Information Exchange Network Application (SIENA, a secure platform for the exchange of sensitive and restricted data), but not to the databases managed by Europol, etc.).

More generally, the possibility remains that by the end of the transition period, and without an extension, an agreement with detailed provisions on cooperation in criminal matters may not yet be finalised or ratified. It is important to stress that even in the absence of agreement, the cooperation in criminal matters between the EU and the UK would not be interrupted overnight. Rather, such cooperation would be conducted on alternative basis, such as regional instruments elaborated within the Council of Europe. This was notably foreseen in case of a no-deal Brexit, in preparation of which transitional arrangements were elaborated for existing EAWs, in order to ensure continuity in proceedings for cases where an arrest has been made prior to exit day. It was also provided that EAWs issued by EU Member States would be treated as requests for extradition under the 1957 European Convention on Extradition, which may have potentially resulted in longer procedures, but not necessarily in refusals to extradite the person requested.

To conclude, the future of cooperation in criminal matters between the UK and the EU will be as complex to build and analyze as their future cooperation in other policy areas. Common standards, notably on data protection and procedural safeguards for suspects and accused persons, will be an essential pre-requisite, and past experiences with third countries demonstrate their importance. The EU may keep as a reference point the modalities of cooperation elaborated with third countries, especially those which have accepted to participate in the Schengen area.  Flexibility and the possibility to design specific arrangements might then be limited.TOPICS:AFSJ / BREXIT

UPDATE : New EU Guidelines on the European Area of Freedom, Security, and Justice (2020-2024)

Foreword (by Emilio DE CAPITANI )

According to art.67.1 TFEU “The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States”. This objective is very high in the EU agenda as, since the entry into force of the Lisbon treaty, it is second only to the main EU aim of promoting peace, EU values and the well-being of EU peoples. According to art.3.2 of the TEU :“The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.”. Last but not least, the Preamble of the Charter of fundamental riughts hammers the same objective by stating that :“…the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice”.

Notwithstanding all these big words, ten years after the entry into force of the Lisbon Treaty it is fair to say that we are still far from reaching this objective. The increasing tension with some Member States on the very issue of the EU founding values, the lack of solidarity which still jeopardise the EU asylum and migration policies, the persisting lack of trust in police and judicial cooperation in criminal matters, the increasing pressure on EU fundamental freedom of movement are all signs that the EU is losing his compass and in some cases has even taken the wrong direction.

The fact is that more than twenty years after the first Freedom Security and Justice Agenda adopted by the European Council in Tampere we have no more the same agenda . Also at the level of the EU Institutions it is increasingly difficult to hide the different approach followed by the Member States inside the Council, the different General Directorates of the Commission and the different political groups in the European Parliament itself. Looking from outside , if there was a Treaties’ “Google Maps” you may find the European Court of Justice in Lisbon the European Parliament in Amsterdam, the Council still in Maastricht (with some Member States willing to come back to the pre-Schengen era..) and the Commission still lost in between all these ..cities. Jokes apart it is quite obvious that the policies linked to the trasnformation of the EU in a Freedom, Security and Justice Area are the most difficult to manage also at national level so that it is not easy to build at suparanational level a consistent agenda where at the same time you may bring together a political vision, a solid legal framework, an efficient supranational administration, enough financial ressources, and a strong support by the european citizens.

The latest occasion when the EU has tried to square this circle was with the Amsterdam Programme adopted immediately after the entry into force of the Lisbon treaty on December 10th 2009. Unfortunately this courage disappeared five years later in 2014 when the European Council was unable in managing at the same time the financial crisis , the new wave of terrosist attacks and the emerging pressure on the EU external borders.. For this reason it limited itself to the very simple objective of .. implementing the decisions already taken and evaluate their impact. In the following years the emphasis was then turned to the operational aspects of the cooperation between Member States so that the main developments have been on the side of the European Agencies such as Frontex (now deemed to become an Agency with 10.000 officials!), or the creation of the first European Public Prosecutor and the creatoin of impressive interoperable networks managing a vast amount of data. In a way, fostered mainly by the pressure of the Interior Ministers and of the Commission it has been a massive investment on the creation of a supranational nervous system, on building some muscles but, unfortunately without a true…brain.

It is then to be welcome that now the Council is dealing with the next steps to be made to transform the EU in a freedom and Security and justice area . This is very timely as it happens at the same time when,

  • on one side the BREXIT has taken place and, there are no more the limits which obliged the EU to establish the Schengen Area formally as an enhanced cooperation as well as to conclude specific protocols answering to the specific requests of the UK. Needless to say it will remain the position of DK and IRL but these two countries may at any moment switch to the “ordinary regime” by so crating the conditions of a common stauts (in the FSJA) for all the EU citizens and the same level playing field for the national administrations;
  • on the other side the EU is launching an European Conference on the future of Europe which will inevitably require also to overcome the deadlock in the most sensitive FSJA policies (Asylum, Migration, Internal and external security…)

In this perspective it is quite unfortunate that the current definition of new “Guidelines” has been conducted until now by stealth under closed doors and without an honest and transparent assesment of the problems and weaknesses which have prevented until now a sound transformation of the EU in a Freedom Security and Justice Area. Moreover everything has been done without any exchange with the civil society as well as with the European and national parliaments. This sounds very strange in a period when the same European Council claim to search a dialogue with the EU Citizens and praise the sincere cooperation between the EU institutions and the national parliaments … This very fact alone can question the credibility, legitimacy and even the binding nature of the Guidelines if they not comply with the obligations arising from the Treaties and linked, on one side to the principles of participative democracy (artt. 10-12 TEU) and on the other side of implementing the principle of sincere cooperation between the EU institutions (notably when this “strategy” will require the adoption of legislative and budgetary measures…).

For the time being these Guidelines are deemed to be a corollary of gthe eneral Strategic Agenda 2019-2024 adopted in June 2019 to guide the European Union’s work in the next five yearsn. After a reflection process initiated by the Romanian Presidency and continued during the Finnish Presidency, which was wrapped up in December 2019.

The document below is the outcome of a first (not public) debate at the informal Justice and Home affairs Council on January 23rd/24th and will be again on the Coreper table on February 5th. It will then be submitted for endorsement to the Council (Justice and Home Affairs) on 12-13 March 2020 in view of the European Council meeting on 26-27 March 2020. The latter will probably adopt these “Guidelines” as required by the art.68 of the TFEU which states “The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.” (continue)

Emilio DE CAPITANI (02-02-20)

Draft Strategic Guidelines for legislative and operational planning within the area of freedom, security and justice

In the last five years, the EU was confronted with a serious migration and asylum crisis, a brutal wave of terrorist attacks and increased foreign interference.  We rose to these challenges as a Union, by putting together a solid set of initiatives and tools.  We also had our differences, often related to geographical or historical specificities.  Diverging views emerged that have an impact on mutual trust and hamper the Union’s ability to meet expectations.

Looking ahead, we need to overcome our differences on what to do, but we also have to focus our attention on how to organise our work, tools and structures to achieve our common objectives.

Values and rule of law

  1. As stated in Article 2. of the Treaty on European Union, the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. The respect for those values, and for the rule of law in particular, is key for the good functioning of the Union and its internal market, for the area of freedom, security and justice and for the protection of the fundamental rights of European citizens.
  2. EU institutions and Member States have a shared responsibility to ensure that respect for the rule of law is guaranteed and that effective tools are used and, as necessary, developed to this aim.
  3. In the Council, Justice Ministers will continue to deal with issues related to the rule of law.  The respect for the rule of law in all Member States will be examined by the General Affairs Council, through a yearly stocktaking exercise closely involving Member States.  This dialogue will help EU institutions and Member States identifying best practices that are worth disseminating, but also issues that deserve attention and demand corrective actions, including adequate support where capacity building is needed. This, in turn, will reinforce mutual trust.

Mutual trust

  • Mutual trust between Member States is the basis for the development of many policies in the field of justice and home affairs which rely on mutual recognition.  More attention should be devoted to ways in which mutual trust can be reinforced.

Implementing EU law

  • Time and again, the European Parliament, the Council and the Commission have stressed the need for EU legislation to be properly applied.  Yet, it is debatable whether enough resources are secured both at national and EU levels for turning these repeated calls into reality – starting, perhaps, with a critical examination of existing legislation to improve its quality and consistency.  For instance, as regards judicial cooperation in civil matters, clear added-value for citizens and businesses needs to be demonstrated before new legislative initiatives are presented that would affect well-functioning national legal frameworks.
  • Rather crucially, the Union lacks aggregated information on how key pieces of EU acquis are being applied by Member States, including whether Member States actually make use of some of those instruments.  This situation is not optimal when it comes to adapting EU legislation or producing new obligations.  The work led by the Commission for evaluating the Schengen acquis and by the Council for mutual evaluations on the implementation of criminal law, such as, quite recently, on environmental crime and now on legal instruments such as the European Arrest Warrant, clearly serves to improve efficiency in the implementation of those policies and related legislation.
  • To reinforce mutual trust, we need to do more by developing systematic and effective joint evaluation schemes as provided for by Article 70 TFEU.  And more resources at central level, including expertise, have to be made available to support Member States.  The support given by the Commission to encourage the implementation of the passenger name record directive (PNR) is a good practice that needs to be replicated in other areas, also to address uneven financial and absorption capacities in different Member States.

Encouraging convergence of law enforcement and judicial culture

  • Law enforcement and judicial communities operate in different environments, developing different cultures within and among Member States in a way which is not always adequate for consistent implementation of EU law across the EU.  Digitalisation offers opportunities for overcoming administrative divisions, but also challenges if departments reproduce and consolidate those divisions in the organisation of information.  At EU level, digitalisation can enhance trust between Member States through joint law enforcement and judicial training schemes that could be developed for instance with Erasmus-like training modules for law enforcement and judicial communities.  The Commission, EU JHA agencies and the European Judicial Training Network are uniquely placed to foster such developments.

The Schengen area – a matter of trust

  • As stated in the Strategic Agenda, we must ensure the integrity of our territory, also as a means of reaching the objective of the Treaty as regards the absence of internal border controls.
  • Control over who enters and travels in the European Union and the Schengen area will be reinforced through the full implementation of the rules recently adopted on systematic controls at the external Schengen borders, and through the greatest possible use of existing systems (SIS, VIS, EURODAC, PNR, Prüm, ECRIS, EIS), fed with quality data, and the rapid deployment of new systems (ETIAS, EES, ECRIS-TCN).
  • The effective implementation of interoperability solutions, opening the way for the integration of decentralised systems, customs databases and financial investigation tools, will also strengthen mutual trust – as will control over secondary movements of migrants and asylum seekers.

One Europe, One Space

  1. What the EU policies should be as regards border checks, asylum and immigration is well defined in the Treaties and has been widely debated over the last five years, in meetings of working parties, special committees, Coreper, Council and European Council.  Divergences have appeared over the reform of the common European asylum system but there is also a broad measure of agreement over the objectives of our common policies – including on the necessity to streamline the operation of our asylum system, from entry to either integration or return, so that decisions are taken in the most efficient and expedient way in the interest of all persons involved.  In developing a new pact on Migration and Asylum as announced by its President, the Commission will address all these issues.  To deliver on our objectives, however, organisation also matters.

Reaching out to third countries with appropriate means and resources

  1. The EU’s efforts to strengthen cooperation with countries of origin and transit have produced some results. But more needs to be done to prevent irregular migration, to protect refugees close to their homes, encourage returns, readmission and reintegration, and to offer legal pathways.  Incentives and leverages, with appropriate financial support, should be brought to bear in a reversible manner and with a thorough understanding of the difficulties faced by each country – whether through structured partnerships or more flexible arrangements.  The role of Member States is essential in reaching out to partners, building upon existing relations and making sure the messages conveyed by EU actors and by those Member States that are most involved are coherent.
  1. Expanding efforts towards third countries means bringing interaction between Member States and EU structures to a whole new level.  To engage properly with third countries in our complex institutional set-up, we need to identify much more clearly who is in charge of what on the basis of which information and with what leverage.  Securing returns of migrants who have no claim to remain on European soil is a difficult task, for which support from EU structures and institutions could make a real difference if conducted in a coordinated way, with appropriate consideration for the situation of countries of origin and with proper alignment of several policy areas, including visas, legal migration possibilities, development and trade.
  2. Streamlining the EU’s efforts in this manner, with political steer from the Council to define positions to be adopted towards third countries on migration issues, would help convince Member States to engage their political capital in a common approach, to be conveyed with adequate commitment and firmness by all EU institutions and services.

Facing migration and asylum crises – lessons learned

  1. Over these last years, much has been done to address difficult situations in Member States most affected by disproportionate migratory and asylum pressure.  The EU’s empirical response, developed with those Member States by the Commission and EU agencies, has yielded important results. This know-how will help the EU to deal with similar situations of various intensity which will occur in the future.  Hence the call for a structured migration management mechanism, with real-time monitoring, early warning and a single point of coordination and decision-making across the EU to mobilise structures, tools, human and financial resources as needed, across EU institutions and agencies and in cooperation with Member States. Robust intelligence coming from all actors, supported by adequate technology, can provide accurate situational pictures, with risk and threat assessments leading to preventive action to avert crisis situations before they arrive at the EU’s external borders or to handle such situations should they nevertheless occur.

From prevention to sentencing – strengthening the security chain

  1. Because of their importance or their geographical coverage, many security threats have to be addressed also at EU level – such as corruption or organised crime, which is a growing concern in all its dimensions.  A truly integrated approach to security means covering the entire security chain, with enhanced operational and interagency cooperation between police, border guards, customs, judiciary, immigration and asylum authorities.  Appropriate action at EU level, through the integration of tools and operational frameworks, would help overcome deep-rooted administrative divisions at national level, encouraging cooperation and synergies.  EU JHA agencies have an important role to play in an enhanced interagency approach and priority should be given to pooling and sharing equipment, specialised technical solutions, resources and expertise in areas where Member States lack sufficient capacities.
  1. Information management is a key enabler for these developments. Implementing properly EU legislation on interoperability requires a lot of attention at national and EU level, as demonstrated by the Commission’s current support to Member States in managing change.  At practical level, priority should also be given to the quality of data fed into EU information systems and to improving data analysis capacities, supported by common standards, structures, and technological tools. Developing artificial intelligence solutions and further automation in full compliance with data protection rules could help address the challenges posed by the processing of large data sets.
  2. In this context of digitalisation, it is not clear that the mandates and resources of relevant JHA agencies adequately cover current and future needs.  Adequate funding has to be secured for all JHA agencies and offices so that sound financial management can be combined with correct allocation of resources in view of the tasks they have to perform.  This evaluation will have to be made, also as regards the mandate of Europol and the possible extension of the mandate of eu-LISA to customs and judicial systems.

Mastering new technologies and artificial intelligence

  • The Strategic Agenda recalls that the EU must work on all aspects of the digital revolution and artificial intelligence, in a manner that embodies our societal values, promotes inclusiveness and remains compatible with our way of life.  This technological revolution calls for an ethical and regulatory framework to ensure the sound integration of new technologies – thereby making choices, ethical, political, economic and legal, to define the place of such technologies in human society.  Industry, professionals and citizens expect clarity, legal certainty and structured knowledge, including risk awareness.
  • This means developing standards and certification procedures for agents and systems based on, or integrating artificial intelligence, with protocols including ethical considerations, statistical validation and risk assessment.  There is also a need to deal with some specific characteristics of artificial intelligence, such as the opacity of the systems, to ensure the effective enforcement of existing laws and the protection of fundamental rights, and to avoid discrimination.  Current concepts of “civil liability” and “criminal liability” would need to be further developed.
  • Our regulatory framework has to address data protection issues in a big data environment, as well as security concerns related to automated decision-making and, more generally, to digital transformation.  This raises the issue of impact assessments, which, when available, do not seem to give enough priority to the implications of technological developments for internal security.
  • More generally, new technologies currently emerge in a loose regulatory environment, which is an issue in view of the disruption they are apt to cause to representative democracies.  One way of addressing this concern upfront is to encourage at EU level a preventive approach, involving dialogues with industry, research and academia and taking an active part in standard-setting instances. Synergies with relevant developments in defence industry should also be exploited to avoid duplications and optimise the use of resources.
  • All in all, the cross-cutting nature of these challenges calls for new ways of working between policy departments, both at national and EU levels.  Within the Council, presidencies will have to devote time and resources to ensure that the development of common policies is properly coordinated.

*

The implementation of those guidelines will be regularly monitored by the Council to ensure that, in particular, organisational issues are addressed in order to deliver on the priorities of the Strategic Agenda 2019-2024.


[1]             Article 68 TFEU reads as follows: “The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice”.

Evaluation of the General Data Protection Regulation

by EIAD – European Academy for Freedom of Information and Data Protection. Europaische Akademie fur Informationsfreiheit und Datenschutz Academie europeenne pour la liberie d’information et la protection des donnees

Berlin, 27 January 2020

A. General remarks

Article 8 of the EU Charter of Fundamental Rights (EUCFR) guarantees the protection of personal data and requires independent data protection oversight. With the General Data Protection Regulation (GDPR), there has been one EU data protection law directly applicable in all Member States since 25 May 2018. The extent to which the goals of the GDPR have been achieved cannot yet be seriously assessed after only 18 months. According to Art. 97 GDPR, the European Commission is required to continuously review the application and effectiveness of the Regulation and to report on this for the first time on 25 May 2020 and, if necessary, to submit proposals for amending and further developing the Regulation.

There is no denying that the GDPR has advanced the harmonisation of European data protection law and its application compared to the largely fragmented previous legal situation. The regulation has also strengthened the data protection rights of individuals subject to the processing of their data. The GDPR also provided data protection supervisory authorities with effective means of enforcement. However, it has become apparent that there are still shortcomings in the areas described above which need to be remedied.

The GDPR has had a significant impact on the global debate on data protection issues.

Several non-European countries and federal states have now passed laws based on the model of the GDPR. Examples include the Californian Consumer Privacy Act (CCPA), which came into force on January 1, 2020, and the new Thai Data Protection Act. The US Congress has received several drafts for a federal data protection act. It is currently discussing them on a bipartisan basis.

In addition, the data protection agreement concluded between the European Union and Japan in early 2019 has created the world’s largest zone with a uniformly high level of data protection. This has improved the opportunities for the European economy to remain competitive in the face of ongoing digitization.

The present opinion is based on the experience gained so far and is therefore provisional in nature. It is focused on key areas of action in which further development of the legal framework already appears appropriate.

B. Proposals

1.     Harmonisation

The large number of opening and concretisation clauses in the GDPR urgently needs to be reviewed with a view to reducing them. As a result of the fact that the Member States have made use of national options in very different ways, a regulatory patchwork of the most diverse provisions continues to exist in many areas. This severely compromises the goal of harmonising data protection law in the EU as far as possible and the associated free movement of data. Moreover, fragmentation causes considerable practical and legal problems for legal practitioners.

1.1.     The opening clauses of the GDPR for processing by public authorities allow not only for more precise regulations in the law of the Member States, but also for clarification by Union law.

The legal requirements for such regulations, such as those in Article 6 (3) GDPR and Article 9 (2) GDPR, should be specified with regard to the particular relevance of data processing by public authorities to fundamental rights in such a way that the guarantees specified in the GDPR may only be deviated from in favour of the persons concerned. In addition, so far there are Europe-wide references, the EU legislator should make greater use of its power to specify in order to further develop the principles of the GDPR in a harmonised manner for the public sector.

1.2. The diversity of regulations is particularly serious in the research field. The application of the provisions on scientific research has shown the need for more integrated rules on processing for scientific purposes, in particular for European cross-border research. Art. 89 GDPR should be revised accordingly in order to ensure a uniformly high level of data protection throughout the EU.

1.3. A higher degree of harmonisation is also needed for the processing of personal data in the employment context. The requirements for employee data protection of Art. 88 GDPR should be designed as binding guidelines for the processing of employee data and not merely as an option for national legislators. Nevertheless, it should still be possible to specify the requirements in national law and collective agreements.

1.4. In view of the increasing importance of interactive, cross-border media, more binding and concrete criteria are needed for weighing up the relationship between data protection, free speech and freedom of information. Art. 85 GDPR should be further developed accordingly.

1.5. The cooperation of DPAs is crucial for the uniform application of data protection law. The principles set out in Chapter VII (Art. 60-78) GDPR must be made more effective. There is a need for legal remedies if a supervisory authority fails to take a decision pursuant to Art. 58 in cases of cross-border importance, delays it, or intends to refrain from taking a formal measure pursuant to Art. 58 (2) GDPR with a view to amicably resolving a dispute with the company. It must be ensured by corresponding changes in Art. 64-66 GDPR that the provisions on the coherence procedure also apply to such cases.

2. Profiling / Automated decisions

Greater attention must be paid to automated systems which make or prepare decisions important for the individual or for society. Of particular relevance in terms of data protection law is the compilation and evaluation of data for the purpose of assessing individuals (profiling) and the use of algorithmic decision making systems, for example in connection with the use of “artificial intelligence” (AI).

2.1.    Art. 22 GDPR should be adapted to cover all cases where the rights and freedoms of natural persons are significantly affected. Profiling must be regulated as such (and not just decisions based on it). It should be clarified that the rules for automated decision-making also apply to decisions that are essentially based on algorithmic systems (algorithmic decisions). In this respect, absolute limits must be defined, admissibility requirements must be standardised and the principle of proportionality must be specified. In doing so, the specific requirements for the use of sensitive data and for the use of data relating to children shall be taken into account. The transparency requirements of Art. 12 et seqq. for profiling and automated decisions should be formulated more specific. Persons affected must always be informed when profiling is carried out and what the consequences are. In the case of algorithmic and algorithm-based decision-making systems, the underlying data and their weighting for the specific case must be disclosed in a comprehensible form.

2.2.    With regard to the functioning and effects of algorithmic and algorithm-based decision systems, in particular to avoid discrimination effects, mechanisms of algorithm control should be implemented. The requirements for data protection impact assessment formulated in Art. 35 (7) GDPR should be specified accordingly.

3.     Data protection technology

In addition to written law, ensuring effective data protection is largely determined by the design of technical systems. The statement “Code is Law” (Lessig) applies more than ever in view of increasingly powerful IT systems and global processing. It is therefore all the more important to ensure that technical systems are designed in a way compatible with data protection, especially with regard to limiting the scope of personal data processed (data avoidance, data minimisation).

Anonymisation and the use of pseudonyms are effective techniques for limiting risks to the fundamental rights and freedoms of natural persons, without unduly restricting the knowledge that can be gained from the data processing. In view of the high speed of innovation, it is necessary to examine to what extent the legal requirements guarantee adequate protection.

3.1. The provisions on technological data protection (Art. 25 GDPR) should take into account the particular risks arising from the use of new technologies and business models (in particular artificial intelligence, data mining, platforms). Corresponding specifications for the design of such systems should be specified by the European Data Protection Board.

3.2. In view of the rapid technological development, the requirements for anonymisation and pseudonymisation in Art. 25 GDPR and for the use of anonymised data should be made more specific. This should be supplemented by prohibitions of de-anonymisation and the unauthorised dissolution of pseudonyms, with the possibility of criminal prosecution.

3.3.     The responsibility of the manufacturers of hardware and software should be increased, for example by extending the definition of the responsible person to include the natural or legal person, public authority, agency or other body marketing file systems or personal data processing services.

At the very least, they should be included as addressees of the rules on data protection by means of technology design and by means of privacy by default, Article 25, and security of processing, Article 32 GDPR, in addition to the controller and processor, with the consequence that providers of personal data processing systems and services are responsible and liable for the implementation of the requirements at the time of placing on the market. In particular, they are to be legally obliged to provide all information required for a data protection impact assessment prior to the conclusion of a contract and all information and means necessary for the implementation of the rights of the persons concerned, irrespective of company and business secrets. This could also make the provisions on certification under Art. 42 effective. Consideration should also be given to extending the regulations on liability and compensation (Art. 82 GDPR) and on sanctions (Art. 83 f) to manufacturers.

4.     Rights of data subjects / self-determination

Self-determination and the rights of the persons concerned by the processing are at the centre of the fundamental right to data protection and the fundamental right to informational self-determination established by the Federal Constitutional Court. Although the GDPR standardises the central possibilities of influence of the individual on the processing of his or her data and his or her rights vis-à-vis the responsible parties, the actual possibilities of influence of the data subjects are often very limited. This applies in particular to the practice of various powerful companies offering services in which data subjects are trapped by lock-in effects. The rights of those affected should therefore be further strengthened.

4.1. The rules on consent (Art. 7 GDPR) and the right of objection (Art. 21 GDPR) must be supplemented in such a way that the persons concerned can make use of technical systems to determine their data protection preferences when exercising their decision-making powers. Those responsible must be obliged to respect these specifications and the decisions based on them.

4.2. In Art. 12 ff GDPR it must be ensured that the information provided for the data subject relates to data processing actually intended. It should also be clarified that the controller must inform the data subject of all known recipients to whom personal data of the data subject are or have been disclosed. In addition, the person responsible must be obliged to record the transmission of the data and the recipients, so that he cannot evade his obligation to provide information on the grounds of “lack of knowledge”.

4.3. The transparency obligations pursuant to Art. 12 et seq. are to be specified with regard to the use of profiling techniques and algorithmic decision-making procedures (cf. point 1, 2nd indent above).

4.4. The right to restriction of processing (blocking) in Art. 18 GDPR should be extended to those cases in which the necessary deletion is not carried out because the data must be kept only for the purpose of complying with retention periods.

4.5. The right to data portability (Art. 20 GDPR) should be specified in such a way that the data must be made available to the data subject in an interoperable format. It should also be ensured that the right covers all data processed by automated means that the data subject has generated (including metadata) and not only those that he has deliberately entered into a system. Furthermore, companies and platforms with a high market penetration should be obliged to make their offerings interoperable by providing interfaces with open standards.

C. Evaluation of the legal framework

Article 97(1) of the DS-GVO provides for an evaluation of the GDPR after 25 May 2020 at four-year intervals. In view of the rapid technical development in the field of data processing, it appears necessary to shorten this evaluation interval to two years. Even if the legal framework is designed to be technologically neutral, it must react to technical developments as quickly as possible otherwise it will fast become obsolete.

EUROPEAN LAW BLOG : E-Evidence in the EU Parliament: Basic Features of Birgit Sippel’s Draft Report

ORIGINAL PUBLISHED HERE :https://europeanlawblog.eu/2020/01/21/e-evidence-in-the-eu-parliament-basic-features-of-birgit-sippels-draft-report/

21 JANUARY 2020/ BY THEODORE CHRISTAKIS

Discussions on E-Evidence are heating up at the EU Parliament

Taking into consideration the significant legal challenges from the globalization of criminal evidence and considering that traditional instruments for cross-border cooperation such as Mutual Legal Assistance Treaties (MLAT) are too slow and cumbersome, the European Commission proposed, on 17 April 2018, the “E-Evidence” legislative package (E-Evidence), which aims, to streamline cooperation with service providers and supply law enforcement and judicial authorities with expeditious tools to obtain e-evidence.

Despite difficult negotiations among EU Member States, the EU Council of Ministers succeeded in adopting on December 7, 2018 its “general approach” on E-Evidence. This led to a storm of reactions by NGOs, the industry, members of the European Parliament (MEPs) and at least seven EU States, including Germany, who opposed the Council’s draft. The Netherlands, for instance, denounced the Council’s text for being adopted “too fast” and stated that it “opened the way for abuse by EU countries that lack sufficient guarantees over the rule of law and fundamental rights”. In an article published a year ago and entitled E-Evidence in a Nutshell:  Developments in 2018, Relations with the Cloud Act and the Bumpy Road Ahead I presented an overview of the major features of the Council’s draft and the principal points of contention.

The months that followed showed the significant challenges that need to be addressed before a compromise is found at the EU on E-Evidence. The Civil Liberties, Justice and Home Affairs (LIBE) Committee of the European Parliament spent most of the year 2019 in drafting seven working documents on the topic. On 8 November 2019, however, an important development took place: the LIBE Committee’s Rapporteur MEP Birgit Sippel released her draft Report on the E-Evidence draft Regulation.

Sippel’s Report constitutes a huge departure from both the Council’s general approach and from the initial Commission’s proposal. It presents… 267 amendments to the Commission’s proposal aiming to modify not only every single article in the Commission’s and the Council’s drafts, but also some important mechanisms and pillars of these drafts.

While this time the NGOs’ and the industry’s first reactions have been generally positive, Sippel’s Report has provoked a strong reaction by the Commission which led to an unusual institutional confrontation at the EU. More precisely, the Commission was accused of circulating to a selective list of stakeholders and MEPs (but not to the E-Evidence Rapporteur herself) a Non-Paper highly critical of Sippel’s Report and claiming that the amendments suggested by the Rapporteur will have a major impact on the efficiency of E-Evidence. This, in turn, led to a strong reaction by the chairman of the Parliament’s LIBE Committee, Juan Fernando López Aguilar, and Birgit Sippel herself, who wrote to Justice Commissioner Věra Jourová to complain about the Commission’s Non-Paper: “From an EU institutional point of view, such a practice by the Commission … raises serious questions as to the principle of sincere cooperation between the institutions,” their letter read. They also protested about the lack of transparency on the Commission’s side and the inclusion in the Non-Paper of factual errors about the content of Sippel’s Report. Following this, the Rapporteur also addressed a letter to her MEP colleagues intending to “clarify” the “misunderstandings” appearing in the Non-Paper and to defend the efficiency of her approach.

It is against this “electric” background that the different political groups introduced a total of 841 amendments to the E-Evidence proposal and that the first meetings between the shadows and the Rapporteur took place during the month of January. The LIBE Committee is due to vote in February or March on this legislative proposal, but it has not yet been determined whether the vote will take place on a new compromise proposal from the committee or whether there will be a vote amendment-by-amendment. A full plenary vote of the European Parliament should take place afterwards.

The objective of this paper is to present briefly some among the major features and mechanisms of Sippel’s Report. This paper is based in a much longer study that I have just published with the Cross Border Data Forum (CBDF) analyzing in detail the extent to which the legal regime proposed by the Rapporteur could strike the right balance between necessary protections and efficiency (see: “Lost in Notification ? Protective Logic as Compared to Efficiency in the European Parliament’s E-Evidence Draft Report”). The conclusion of this study is that, while there are reasons for a number of modifications and adjustments, Sippel’s Report is the product of much work and thinking and includes important ideas and mechanisms that appear useful for the future negotiations on E-Evidence. Here are some among the basic features of Sippel’s Report.

1) Two in One? Merging the Regulation and the Directive

An important structural amendment is that the Report proposes to merge the two instruments proposed by the Commission (a Regulation and a Directive) into a single one. The Rapporteur advances several arguments to justify this, including the concern that by introducing a separate Directive (which will oblige service providers to designate a legal representative in the Union) the Commission might have the hidden intention to “also use it for other future instruments. “In that regard”, argues the Rapporteur, “the proposed Directive overreaches its goal and raises serious issues with its legal basis, namely the Articles 53 and 62 TFEU” (see Sippel’s Report, at 146).

According to my information, the Commission strongly opposed the suggested suppression of the proposed Directive, considering that this would deprive the whole E-Evidence package of its added value, especially as far as third country service providers are concerned. The Commission emphasized that the legal basis for the Regulation (Art. 82(1)) TFEU cannot be used to compel service providers from third States to designate a legal representative in the Union. As a result, a different legal instrument, with a different legal basis, is necessary.

2) A Double Notification Mechanism

By far the most important change proposed by Sippel’s Report is that it introduces a meaningful notification mechanism permitting EU Member States to exercise their traditional protective functions and ensure the respect of fundamental rights on their territory.

The Report provides for notification to both the “executing State” (i.e. the State of the service provider) and the State of residence (“affected State”), when the latter is known to be different from the “issuing” and the “executing” State.

The Notification mechanism is not toothless anymore (as in the Council’s version). The executing State can object with several grounds of refusal available, including protection of human rights, privileges and immunities.

The Report is not founded in ‘absolute’ mutual trust (as the Commission’s version) but on the idea that efficiency arguments should not override the need to protect fundamental rights. It claims, nonetheless, that efficiency will not be significantly affected because the timeframe proposed by the Commission can be respected with much stronger safeguards if each actor plays its own role.

In my CBDF study I analyze in detail the two proposed notification mechanisms and I assess the extent to which each one of them could strike the right balance between necessary protections and efficiency. My basic conclusions are the following.

A) Notification to the “Affected State”: High Protections with Low Burden

First, the introduction of a notification to the “affected State” (the Member State of permanent residence of the affected person) is undoubtedly the major single improvement introduced by Sippel’s Report. Notification to the “affected State” is highly protective. It has the great merit of bringing the targeted individual back into the equation. The Member State of residence would thus be able to exercise its traditional protective functions concerning the human rights of the targeted individual. It will have much more powerful incentives to proceed to such a control than the enforcing State (where the service provider is based) which, most often, has a weak link to a criminal case. Moreover, such a notification will permit to protect the sovereign prerogatives and fundamental interests of the Member State where the data subjects reside, such as the national security of the Member State of residence (if, for instance, the targeted person is an agent of the receiving Member State), trade secrets (if the target is a business executive) or other essential interests.

It is thus clear that the notification to the affected State will greatly enhance the human rights and other protections of E-Evidence. But what about efficiency? The Commission claimed that the system would be too burdensome. In my CBDF paper I explain in detail why the Commission is wrong, subject to the condition that notification to the affected State should only concern the most intrusive for human rights forms of data, namely content and transactional data. It would, however, be an error to introduce into the notification regime subscriber or access data, as the Rapporteur seems to suggest.

Indeed, notification of the affected State, where applicable, would remain entirely inside the timeframe (10 days) proposed by the Commission and the Council. Efficiency is affected much less than commonly assumed, because in most cases (93%) the investigating/issuing authority seeks data on its own residents. In contrast to a Mutual Legal Assistance Treaty request, which requires notice to a different country in 100 % of cases, the “affected state” provision would thus apply in less than 7% of cases. On the basis of the existing data, it seems reasonable to believe that the 20 smallest EU Member States would be notified as “affected State” no more than a few dozen times per year. The burden should thus be low and manageable for them. If one considers than during the year 2018 Facebook received and examined a total of 53,841 data requests, followed by 47,011 for Google, 43,480 for Apple and 22,919 for Microsoft (see here, at 12), it would be an insult to countries like Sweden or Austria to argue that they would be unable to examine a few dozen notifications per year in order to protect as “affected” States the human rights of their populations and their sovereign interests.

In my CBDF paper I also advance a series of arguments in order to rebut the Commission’s argument that “notification to the affected State will go far beyond what exists under current mutual recognition and legal assistance instruments”. In my view, the introduction in the E-Evidence package of the concept of the “affected State”, as Sippel suggests, will permit to “adapt” in an appropriate way in the digital world protections that already existed traditionally “in the physical world” under MLA systems. As a conclusion, while the burden for affected States should be low and the “protecting human rights/sovereign interests benefit” for them and their populations should be high, law enforcement people involved in the e-evidence negotiations do not always seem to realize the importance of this mechanism and do not necessarily declare themselves willing to ensure this “responsibility to protect” function envisioned for them by Sippel.

B) Notification to the “Executing State”: More Challenging but Could Become Feasible

Things are more challenging concerning the mechanism of notification to the executing State also put forward in Sippel’s Report.

While notification to the “affected State” (if the State of residence of the person whose data is sought is other than the issuing State) makes real sense for the reasons explained above, notification to the executing State seems less compelling. Imagine a crime committed in France. The victim is French, the suspect is a French person and resident. What is the point of obliging France to notify Ireland only because the service provider of the suspect is established in Ireland or has his legal representative there?

Despite the lesser relevance of notification to the executing State, whose link to a criminal case is often very weak, it seems that this idea is strongly imprinted in the mind of different stakeholders.

In Sippel’s Report there is no doubt that notification to the executing State, combined with notification to the “affected State”, offers important additional protections and guarantees. Among other things, such a notification permits to deal with a number of issues such as conflicts of laws concerns or rule of law problems in the issuing State – especially taking into consideration that 93% of all criminal investigations have an entirely “domestic” character and there will thus be no notification to an “affected State” for them. In Sippel’s mind, the involvement of the executing State is absolutely necessary not only in order to resolve such rule of law problems but also in order to give a solid legal basis to E-Evidence (Art. 82 TFEU, based on the notion of cooperation between two judicial authorities). She introduces the concept of the “executing” State (instead of “enforcing” State in the Commission’s draft) which will be automatically involved in all European Production Orders (EPOs) thanks to this system of notification and which will be considered as having recognized automatically the EPO Certificate unless if it raises a ground for refusal.

As I explain in my CBDF paper, there is a strong protective logic behind Sippel’s proposal, but the system, as it was introduced, would undoubtedly create a huge burden for the executing State and might make the future instrument unattractive to law enforcement authorities (LEAs). It seems to me that the only way to make this notification less burdensome would be not only to introduce some necessary amendments exposed in my CBDF paper but also to implement this system on the basis of the understanding that the executing authorities will not need to systematically examine each EPO but will only need to take action in some exceptional circumstances. The whole idea would thus be that there will be a “guardian of the Temple” in case of trouble, but this guardian will not need to check and clear all persons entering the Temple.

3) Enhanced Human Rights Protections

Numbers are not always relevant, but it is interesting to note that Sippel’s Report mentions Human Rights 31 times – up from 17 in the Council’s draft.

The meaningful notification system, explained above, is presented as the major step forward to allow that the rights of affected persons are guaranteed by the executing State and, where applicable, the affected State. Others pro-human rights amendments include:

  • Notice-by-default for persons targeted by orders issued under the Regulation (unless there is a non-disclosure order validated by a court to avoid jeopardizing the specified investigation – see amendment 164). This is in contrast with the downgrade operated by the Council and the lacuna in the Commission’s draft discussed here. It is interesting to note that the non-disclosure Court order is directly influenced by the US system of gag orders.
  • rejection of the new data categories introduced by the Commission (“access” and “transactional” data) and return to what is presented (see Report at 147) as “clear data categories (based on existing EU and national legislation and in line with CJEU case law)”, namely: “subscriber”, “traffic” and “content” data. The Commission, however, insisted that its proposed new category of “access data” (as opposed to traffic or transactional data) is extremely important in order to enable LEAs to identify the subscriber of a service at the early stages of the investigation – and should thus not be deleted as suggested by the Rapporteur.
  • Due regard for issues such as respect of ne bis in idem principledual criminality considerationsprivileges and immunities, including protections for medical and legal professions, freedom of press and freedom of expression.
  • Limitations to the use of data obtained, including rules on (in)admissibility of evidence & erasure of data obtained in breach of Regulation.
  • Much greater concern for effective legal remedies not only in the issuing but also in the executing State in accordance with national law, including the possibility to challenge the legality of the order.

4) A More Appropriate Role for Service Providers

The Report proposes a more appropriate role for service providers. The logic is that the responsibility of protecting human rights should not be shifted from States to service providers, but recognizes that the latter may be able to provide critical information relevant to the assessment of the necessity and proportionality of orders as long as they are not solely responsible for this process.

While logically providing for sanctions if service providers do not cooperate, the Report abandons the hugely punitive sanctions of the Council (“2% yearly turnover”) which could have a chilling effect on providers’ incentive to challenge abusive orders.

The Report also introduces an immunity from liability provision for service providers for any consequences resulting from compliance with an EPO, subject to other data protection obligations.

The Report seems to partially resolve a concern raised by service providers, academics and others, regarding when an EPO should be used instead of domestic procedures. Both the Commission and Council’s approaches created uncertainty and raised the possibility that Member States could resort to the use of domestic measures, potentially in cross-border scenarios, but Sippel’s Report seems to clarify that Union measures should always be used in cross-border scenarios. Service providers have expressed concern that, without clarifying language, the Commission and Council’s approach would have created a backdoor, allowing Member States the opportunity to simply ignore the E-evidence legislation altogether and use domestic measures which could lead to fragmentation and conflicts of law. Sippel’s amendment 83 would delete language preserving use of a domestic backdoor (“without prejudice to the powers of national authorities to compel service providers established or represented on their territory to comply with similar national measures”). However, there is no affirmative requirement that would require Member States to use the E-Evidence mechanisms over national measures in cross-border cases.

5) Other Features

At least four other important features of Sippel’s Report need to be mentioned:

  • Conflict of laws -– On conflict of laws, interestingly, the Report does not go back to the elaborated mechanism proposed by Commission and abandoned by the Council (explained here) but provides for a reasonable mechanism based on the appreciation of both the issuing and the executing State’s authorities.
  • A higher threshold for issuing production orders – Sippel’s report provides that European Production Orders requiring production of content or “traffic” data (which includes the “access” data category introduced by the Commission) “may only be issued for criminal offences punishable in the issuing State by a custodial sentence of a maximum of at least 5 years”. This is 2 years more than the threshold in the Commission’s and Council’s drafts (“3 years”) and means that, for these categories of data, EPOs can only be issued for the most serious crimes. It would be surprising if LEAs around Europe accepted such a high threshold.
  • Extension of timeline for application of the Regulation – Sippel’s Report extends the timeline for application of the draft Regulation from six months after its entry into force (provided in the Commission’s proposal) to three years. This means that, in the best case, E-Evidence will not be applicable until the end of 2023. While it makes a lot of sense to provide for the necessary time in order to implement a new and complex system as E-Evidence (the Council itself proposed a deadline of 24 months in its general approach), three years might appear too long for law enforcement people. This, in turn, raises the risks that some Member States might enact in the meantime national laws to enable access of their LEAs to e-evidence (through extraterritorial or data-localisation measures) leading to fragmentation and unwelcome complications.
  • “Independent” Prosecutors – The Report proposes to systematically replace the term “prosecutor” in the draft Regulation by the term “independent prosecutor”, defined as not be “exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the adoption of a decision”. This was done in order to reflect recent CJEU case law (see eg Minister for Justice and Equality v OG and PI, discussed in this Blog here). This means, in practice, that prosecutors that have been found by the CJEU not to respond to these “independent” requirements (such as German prosecutors) would not be able under the draft E-Evidence Regulation to request the production of subscriber data and the preservation of data. This would be a limitation to what these prosecutors can already do under domestic law. It would thus be surprising if LEAs all over Europe accepted such limitation. More generally, it should be important to think if CJEU (or European Court of Human Rights) judgments adopted under different circumstances are automatically transposable to other situations. The above-mentioned CJEU cases concerned the sensitive issue of which bodies are “issuing judicial authorities” capable of issuing European Arrest Warrants with a view to the arrest and surrender, by another Member State, of a requested person. One could argue that the particularly high threshold of independence of prosecutors required by the CJEU when the very right to liberty is at stake, should not necessarily be transposed automatically to the E-Evidence context, in relation with the bodies authorized to issue requests for the production of subscriber data and the preservation of data which are less intrusive measures for human rights than the ones envisioned by the original judgment.

Conclusion

Sippel’s version of E-Evidence is far more protective for human rights than the Commission’s or the Council’s drafts. Thanks to this protective approach Sippel succeeded in making the “paradigm shift” introduced by E-Evidence acceptable to fundamental rights experts (and likely very hard to challenge tomorrow in European courts).  NGOs and other stakeholders who were firmly opposed to E-Evidence, pleading instead for an improvement of MLA mechanisms (such as the European Investigation Order), suddenly seem to consider that E-Evidence could be compatible with strong human rights protections. “Has Sippel MEP been successful at repairing the unrepairable?”, asks for instance EDRi.

There is also little doubt about the fact that Sippel’s version of E-Evidence is much better for service providers than the Council’s or the Commission’s drafts. Sippel’s report provides a workable regime for service providers and legal certainty while relieving them from liability issues. Without transforming them to legal assessors of fundamental rights (as the Commission did), Sippel’s system gives the possibility to service providers to protect their customers and users and to flag eventual problems to States who remain, nonetheless, the traditional guardians of human rights. When the Council of the EU adopted its draft, the Business Software Alliance denounced a “disappointing text” that “risks undermining the protection of citizens and enterprise data across Europe”. In contrast, the BSA “welcomed” the European Parliament’s E-Evidence draft report, considering that it “introduces much clearer liability rules for companies complying with the Regulation, strengthens the fundamental rights protections of EU citizens, and ensures that cooperation between law enforcement agencies and technology providers is fostered and balanced”. Similarly, a recent joint industry/NGOs statement offered strong support to Sippel’s Report.

If Sippel’s Report is “good for human rights” and “good for service providers”, the big question is whether it might also become acceptable for law enforcement authorities. The double notification mechanism introduced by Sippel does not affect the timeframes proposed initially by the Commission and the Council for the production of data (10 days in normal situations, 6 hours – extended to 24h by Sippel – in cases of emergency). These notification mechanisms create nonetheless a bureaucratic burden and additional responsibilities for the issuing State, the executing State and the affected State. Some modifications and adjustments will be necessary in order to make this system less burdensome for the States concerned, and especially for the executing State. Still, it remains to be seen if these States will accept to play the “responsibility to protect” role envisioned for them by Sippel.

The author will like to thank all the persons who contributed comments to a previous draft of this article, and especially Karine Bannelier, Vanessa Franssen, Ken Propp and Peter Swire. The views expressed in this article are entirely the author’s.

VERFASSUNGSBLOG : 1460 Days Later: Rule of Law in Poland R.I.P. (Part I and II) Laurent Pech, Patryk Wachowiec Mi Jan 2020

SEE : Pech, Laurent; Wachowiec, Patryk: 1460 Days Later: Rule of Law in Poland R.I.P. (Part II), VerfBlog, 2020/1/15, https://verfassungsblog.de/1460-days-later-rule-of-law-in-poland-r-i-p-part-ii/.

On 13 January 2016, exactly four years ago today, the Commission activated its rule of law framework for the very first time with respect to Poland (for our previous 2-part post assessing the situation as of 13 January 2019 see here).

During this time, Poland has become the first EU Member State:

  • to be threatened with the payment of a penalty payment of at least €100,000 per day should it continue to ignore an interim order adopted by the ECJ in July 2017;
  • to be subject to the exceptional procedure laid down in Article 7(1) TEU in December 2017;
  • to have seen its newly “redesigned” National Council of the Judiciary suspended from the European Networks of Councils for the Judiciary for its lack of independence in August 2018;
  • to have seen its self-described “judicial reforms” provisionally suspended by the Court of Justice via two interim orders in October and December 2018;
  • to have been found by the Court of Justice to have failed to fulfil its Treaty obligations under the second subparagraph of Article 19(1) TEU not once but twice in June and November 2019;
  • to have been referred to the Court of Justice by the Commission for making it possible to subject ordinary court judges to disciplinary investigations, procedures and sanctions on the basis of the content of their judicial decisions, including the exercise of their right under Article 267 TFEU to request preliminary rulings from the Court of Justice.

As if to outdo itself when it comes to annihilating judicial independence, Poland’s ruling party has rushed an unprecedented piece of legislation last month. This bill “raises the question of whether Poland wants to remain in the EU” by forcing non-compliance with EU rule of law requirements and strengthening an arbitrary disciplinary regime which has already enabled a multitude of kangaroo disciplinary proceedings against any judge at any point in time for as long as needed from the point of view of the ruling party.

As recently and accurately observed, “no member state in the history of the EU has ever gone as far in subjugating its courts to executive control as the current Polish government. The Polish case has become a test whether it is possible to create a Soviet-style justice system in an EU member state; a system where the control of courts, prosecutors and judges lies with the executive and a single party”.

This (two-part) post will highlight the main developments, primarily from the point of view of EU law, which took place in 2019. The most noteworthy one is the Court of Justice’s two infringements rulings which have found Poland to have violated the principles of the irremovability of judges and judicial independence and the Court of Justice’s first preliminary ruling regarding the so-called “Disciplinary Chamber” of Poland’s Supreme Court. The latter ruling has proved particularly impactful as it has directly led a not-yet-captured chamber of Poland’s Supreme Court to find the Disciplinary Chamber not to constitute a court within the meaning of EU and Polish Law. These two rulings have led in turn Polish authorities to put forward what may be described as a “de facto Polexit bill”.

This means that the warning addressed to the new President of the European Commission last month by multiple NGOs and scholars remains more valid than ever: “The attacks on judicial independence we are witnessing in Poland are unprecedented in the history of the EU and legal chaos is bound to ensue and spread because Polish authorities are openly and purposefully ignoring their duties and obligations as a matter of Polish as well as EU law. If not promptly addressed through interim measures, we have no doubt this will mark the beginning of the end of the EU’s common and interconnected legal order.”

It is time for European and national actors to WAKE UP and realise we may soon reach a tipping point, with the EU’s interconnected legal ecosystem facing a medium-term risk of collapse due to the premeditated and ongoing “destruction of the independence of the judiciary” we are witnessing in Poland, a process which seems to be inspiring an increasing number of national governments with exhibit A being Orbán’s Hungary.

1. Going M.I.A. in 2019: The Council

Before outlining the Court of Justice’s decisive contribution in 2019, one may note the Council’s failure to organise any Article 7(1) TEU hearing in respect of Poland since it held one in December 2018. One should not understand the lack of any Article 7(1) hearing as meaning that the Commission’s Article 7(1) recommendations have been met. Indeed, not a single one of them has been fully implemented by Polish authorities. In fact, the situation is worse than ever, which is why the Commission had no choice but to conclude in February 2019 that due to “the cumulative effect of the recent changes affecting the judiciary”, which “are limiting its independence” and “infringing upon the separation of powers”, the executive and legislative powers can now “interfere throughout the entire structure and output of the justice system”.

You have read this correctly: Poland’s executive and legislative powers, de facto controlled by Poland’s de facto Great Leader, can now interfere at will with the functioning and outputs of Polish courts (one may note in passing that the Commission’s diagnosis confirms the ill-advised nature of the so-called Celmer test devised by the ECJ as we noted last year). This interference is now happening openly, through disciplinary charges or administrative measures, such as early dismissals from secondment or temporary suspension by captured presidents of courts, but also more indirectly by putting pressure on judges not to adjudicate in a certain way whenever the interests of the ruling party demand it.

What has the Council done to address the situation? Not much or rather, as little as possible. Two explanations may be advanced: the Romanian government, in charge of the rotating presidency of the Council, was too busy undermining the rule of law in Romania to organise a hearing while the otherwise very active Finnish Presidency did not want to be seen as interfering with Poland’s parliamentary elections of October 2019, which is why it prioritised the organisation of the first Article 7(1) TEU hearing held in respect of Hungary in September 2019 followed by another one in December 2019.

In concrete terms, this means we only saw the Commission give a few updates on the rule of law situation in Poland during the past 12 months: 

18 February 2019: The Commission provided the Council with an update on the latest developments regarding judicial reform in Poland. Member states considered that recent legislative changes concerning the Supreme Court law were a positive development and encouraged the Polish authorities to address the remaining issues raised by the Commission.

9 April 2019: The Commission provided an update on the state of play in relation to Poland.

18 July 2019: The Council took stock of the state of play as regards the rule of law in Poland in the light of recent developments, in particular the judgment of the European Court of Justice on Poland’s Supreme Court law.

16 September: The Commission updated ministers on the developments regarding the rule of law in Poland following the meeting of the General Affairs Council in July.

10 December 2019: The Commission updated ministers on the latest developments, including the recent judgments of the European Court of Justice concerning Polish rules on the retirement age of judges and public prosecutors and the new Disciplinary Chamber of the Polish Supreme Court.

Beyond the issue of the two rotating presidencies of the Council’s own priorities, it would appear that an additional pretext was used by some EU governments to justify their not untypical torpor: the alleged need to wait to see how Polish authorities would comply (or not) with the Court of Justice’s forthcoming infringement and preliminary rulings considering the increasing number of pending cases before the Court, and which directly or indirectly raise most of the issues highlighted in the Commission’s Article 7(1) reasoned proposal.

As we shall now see, Polish authorities have only publicly accepted to comply with the Court’s two infringement rulings to date primarily because these rulings did not prevent them from progressively capturing the Supreme Court from within. As soon as the Court of Justice provided an interpretation of EU law which led a not-yet-captured chamber of Poland’s Supreme Court to find unlawful two of the sham bodies established or captured by the ruling party (i.e. the “Disciplinary Chamber” of the Supreme Court and the ENCJ-suspended National Council of the Judiciary), a new bill was put forward to organise and legalise non-compliance with the judicial independence requirements established in EU law, in obvious breach of both the Polish Constitution and the EU Treaties.

2. The Court of Justice’s entrée en piste

As of today, two infringement rulings – Case C-192/18 and Case C-619/18 – and one preliminary ruling – joined Cases C-585/18, C-624/18 and C-625/18 – have been issued by the Court of Justice. In addition, one infringement case regarding Poland’s new disciplinary regime for judges (C-791/19) and, to the best of our knowledge, eighteen requests for a preliminary ruling raising judicial independence issues, are now pending before the Court.

The two infringement rulings previously mentioned went against Poland, which was not in the slightest surprising considering the obvious arbitrary nature of the changes pushed by Polish authorities regarding the retirement regime of Polish Supreme Court judges, Polish ordinary court judges and public prosecutors. These infringement rulings having been analysed elsewhere (see e.g. here and here), let us just emphasise how they show the lack of good faith of Polish authorities when it comes to the real reasons underlying their so-called “reforms”. Indeed, while members of Poland’s ruling party have been keen to constantly emphasise the need to “decommunise” the judiciary (even claiming that younger judges educated post 1989 would allegedly follow the behavioural patterns of their older, allegedly “communist”, colleagues), the justifications put forward before the Court to justify the retirement “reforms” were of a different nature. For instance, the lowering of the retirement age of Supreme Court judges to 65 was allegedly needed to standardise their regime “with the general retirement age applicable to all workers in Poland” while in the case of female ordinary court judges, Polish authorities explained the lowering of their retirement age to 60 (from 67) “on account of their particular social role connected with motherhood and child raising”.

With respect to the Supreme Court, the Court observed, in a highly unusual fashion but commensurate to the Polish government’s bad faith, that the “explanatory memorandum to the draft New Law on the Supreme Court contains information that is such as to raise serious doubts [our emphasis] as to whether the reform of the retirement age of serving judges of the Sąd Najwyższy (Supreme Court) was made in pursuance of such objectives, and not with the aim of side-lining a certain group of judges of that court [our emphasis]”. The Court therefore had no choice but to conclude that Polish authorities did not pursue a legitimate objective when they sought to lower the retirement age of the Supreme Court judges in post prior to the adoption of the law in dispute. Similarly, the Court of Justice found the new Polish rules relating to the retirement age of judges of ordinary courts and public prosecutors, adopted in July 2017, to be in violation inter alia of the principle of irremovability of judges, which is inherent in judicial independence.

In another seminal (preliminary) ruling (analysed e.g. here and here), the Court of Justice meticulously explained how the referring chamber of Poland’s Supreme Court can ascertain whether the so-called Disciplinary Chamber (hereinafter: DC) – which is also one of the problems highlighted by the Commission in its Article 7(1) reasoned proposal –  is sufficiently independent to constitute a court within the meaning of EU law. In the same preliminary ruling, the Court also explains how to ascertain the independence (or lack thereof) of the new National Council of the Judiciary (hereinafter: NCJ) – another body which has been highlighted as problematic by the Commission and many other organisations. Overall, the ECJ’s interpretation makes it implicitly obvious that neither the DC nor the NCJ satisfy the basic requirements of independence established by EU law, as previously made explicitly clear by Advocate General Tanchev.

Unsurprisingly, therefore, the referring court (the Labour and Social Security Chamber of the Supreme Court) subsequently found on 5 December 2019, on the basis of a meticulous and compellingly argued judgment, that the neo-NCJ does not offer a sufficient guarantee of independence from the legislative and executive authorities before ruling that the “Disciplinary Chamber” does not constitute a “court” within the meaning of EU law and therefore not a court within the meaning of Polish law as well.

With respect to the neo-NCJ, one may recall that it has been suspended from the ENCJ since August 2018 and that it was not merely established in breach of the Polish Constitution but also most likely unlawfully constituted on the basis of the 2017 (unconstitutional) law which changed the appointment procedure for the judicial members of the NCJ while also providing “for the early termination of the mandate of all judicial members on the Council”. To put it simply, it is likely that the judicial members of the NCJ were not supported by the required number of judges provided by the new (unconstitutional) law and/or only supported by each other or judges seconded to the Ministry of Justice. This is likely the reason why national authorities have openly ignored (you read that correctly) a final ruling from the Supreme Administrative Court ordering the Sejm to disclose the names of the judges supporting the NCJ candidates.

This blatant but far from unique violation of the most basic understanding of the rule of law by Polish authorities was rightly deplored by the Supreme Court in its judgment of 5 December 2019 which applied the ECJ preliminary ruling of 19 November 2019.

3. Problems left unaddressed by the Court of Justice’s rulings to date

Notwithstanding the seminal and welcome rulings issued this year by the Court of Justice, a number of important and urgent issues have been left unaddressed. This is not to say, however, that the Court of Justice is necessarily at fault as e.g. the Court cannot approve interim measures if it does not receive an application from the Commission as it did in the case relating to the independence of Poland’s Supreme Court and most recently in the case relating to the Disciplinary Chamber.

To begin with, the situation has not improved one iota as far as the (captured) Constitutional Tribunal (hereinafter: CT) is concerned. Despite a sharp decline in the number of cases submitted to it due to the widespread concerns about its lack of independence, the CT is fully operating and continuing to pretend to be a court. Last October, it even acted like a truly “European” court by declaring, for the first time, that a statute is not consistent with the TFEU (case P 1/18). This may be viewed positively at first sight but it should not be. Indeed, what we have here is a body masquerading as a court enforcing EU law (but only when it suits the ruling party) whereas according to the Commission itself, there is no longer any effective constitutional review in Poland following the failure of Polish authorities to take any steps with the view of restoring the independence of the CT. In addition to this damning diagnosis, one may refer to a series of letters to the (unlawfully appointed) “President” of the CT by a fellow judge. These letters offer multiple examples of obvious abuse of power such as an arbitrary allocation of cases to please the ruling party, an arbitrary make-up of judicial panels as well as an arbitrary (and unconstitutional) prohibition of dissenting opinions. To put it concisely, the time for an infringement action directly targeting the captured CT has come considering the damage it has done and its role when it comes to giving a veneer of legality to fellow sham bodies such as the Disciplinary Chamber (DC) and the National Council of the Judiciary (NCJ).

Speaking of the NCJ, people may be surprised (or not) to learn that it is continuing to function in a “business as usual” fashion notwithstanding the ruling of the Supreme Court of 5 December 2019 finding it to lack sufficient independence from legislative and executive authorities. In addition, some of its members have been busy spreading falsehoods about the content and binding nature of the ECJ preliminary ruling of 19 November 2019. Since its (unconstitutional) establishment on the back of the premature termination of the four-year term of office of its previous members, the neo-NCJ has recommended more than 650 individuals to be appointed as judges or for promotion. Its enthusiastic participation in the (unconstitutional) attempted purge and simultaneous court-packing of the Supreme Court has been well documented, not least by the European Commission. Furthermore, it was revealed last August that some NCJ members secretly took part in a smear campaign targeting judges, including the First President of the Supreme Court (alleged members of what has been described as a “troll form” have of course denied the allegations). As of today, we are still waiting for meaningful investigations and sanctions but how can one hope for any given that “it is clear that the alleged smear campaign was organised from within the Ministry, with the involvement of high ranking officials in the Ministry and National Council of Justice”, with the investigations undertaken by the NCJ and the prosecution service which is controlled by the Minister of Justice, the alleged main guilty party.

Similarly, the two captured chambers of Poland’s Supreme Court – the DC and the Extraordinary Control and Public Affairs Chamber – continue to function and continue to pretend to be independent judicial bodies. To give a veneer of legality to their existence, they have involved the captured CT by requesting it confirm the constitutionality of their status and deliberately referring cases to extended panels within them (7 “judges” or the whole chamber) in order to make their “judgments” more difficult to overrule as other benches, composed of 3 judges, normally need to refer cases to even bigger formation should they wish to override it. The “judges” belonging to the Disciplinary Chamber also did not shy away from self-certifying themselves. In April 2019, they adopted a resolution proclaiming that their appointment is lawful and that the ENCJ-suspended NCJ was similarly established in a lawful manner as confirmed by the ruling of the (unlawfully composed) panel of the CT. They must not be aware of the nemo judex in causa sua principle among other basic legal principles.

To complete our brief outline of the yet to be addressed issues by the ECJ (but a third infringement action is now pending before it), the overall operation of the new disciplinary system needs to be mentioned. While an alleged involvement in a smear campaign organised by the Ministry of Justice will not cause you any major inconvenience (disciplinary or otherwise), multiple judges have faced disciplinary charges for such “major crimes” as seeking to implement the Court of Justice ruling of 19 November 2019, being publicly critical about the so-called “judicial reforms” and “their effect on judicial independence”, or, even more alarmingly, for the content of the “decisions they have taken when adjudicating cases”. Yes, we are talking about a Member State of the EU in 2019 and not the Soviet Union. This is why, one may note in passing, that the analysis of Advocate General Tanchev in Miasto Łowicz and Others (C-558/18 and C-563/18) may appear excessively formalistic and disconnected from the reality on the ground. As noted in a recent and worth reading report by two members of the Council of Europe’s Parliamentary Assembly:

A key issue of concern is the fact that after prosecutors and judges have been informed by the Disciplinary Inspectors that a disciplinary investigation has been started against them, these investigations often continue indefinitely without formal disciplinary charges being brought [our emphasis] before the relevant disciplinary chambers … The Chairperson of the National Council of the Judiciary informed us that, in the last year and a half, 1174 disciplinary investigations were started. Only in 71 instances had disciplinary cases been opened … Irrespective of the small number of actual disciplinary cases opened, the large number of investigations started by disciplinary officers directly accountable to the Minster of Justice, and the time it takes to close these investigations, if at all, clearly has a chilling effect on the judiciary and affects their independence.

This is now the reality of the state of the rule of law in Poland. It is to be hoped that the ECJ will not exclusively focus on whether formal disciplinary charges have been brought but instead take full account of the overall context and the impact of the multiple (kangaroo) disciplinary investigations leaving judges and prosecutors the ruling party has targeted in a “precarious limbo” as they are being investigated without “being able to defend themselves”.

4. Going for broke: The “de facto Polexit” bill

Having initially reacted positively to the Court of Justice’s ruling of 19 November 2019 – according to the Minister of Justice/Prosecutor General, the Court’s ruling was a “great defeat for the extraordinary caste” – representatives of the ruling party and members of the bodies concerned by the Court’s judgment (the DC and NCJ) quickly changed tack when they finally understood that the Court’s reasoning had to lead the referring court to find both the DC and NCJ as lacking basic guarantees of independence.

Another important aspect of the Court of Justice’s ruling, not widely noted, is that “the EU test for the ‘appearances’ of independence can now be applied by ‘old’ Supreme Court judges also to assess the independence of the Chamber for Extraordinary Control and Public Affairs, the second chamber set up in the same way, from scratch, by the ruling parliamentary majority”.

This led the ruling party, following their usual modus operandi, to rush a new piece of legislation via some acquiescent MPs although the wording of the bill and the explanatory memorandum attached to it make it obvious that the bill was drafted in the Ministry of Justice. The purpose of this modus operandi is evident: to circumvent public consultation and prevent a meaningful parliamentary and public debate.

According to the initial version of the bill, it would be a disciplinary offence inter alia to disregard a provision of Polish law in a situation where its non-compliance with the Constitution (which has been violated on multiple occasions by members of the ruling party, not least the Polish President) has not been not confirmed by the (captured) CT. To put it bluntly, the ruling party “wants to force judges not to assess the conformity of the laws passed by the current authority on their own or through legal questions to the Supreme Court or the CJEU, with the Constitution or European law, under the threat of a penalty”.

Other provisions of the bill are similarly alarming. For instance, the proposal aims to prohibit judges from discussing “political matters” or engaging in activities or omissions which would allegedly undermine the functioning of the judiciary or more generally the functioning of Polish authorities and Poland’s constitutional bodies. This was defended inter alia on the ground that French law would similarly restrict the freedoms of expression and of association of French judges. As demonstrated here, this is pure, and deliberately misleading nonsense.

Another worth noting provision, which is so typical of the institutional capture strategy pursued by Poland’s ruling party, aims to secure the speedy replacement of the current First President of Poland’s Supreme Court when her term of office expires next April. According to the contemplated new three-step procedure, the General Assembly of Supreme Court judges, whose task is to present candidates for this post to the President of the Republic, must consist of at least 84 out of 110 judges. If this quorum is not met, the second meeting must be held with a presence of 75 judges while the third must include not less than 32 of them. The bill also gives each judge of the Supreme Court a right to propose one candidate for the said position.

Bearing in mind that at least 43 nominees of the (unlawfully operating) neo-NCJ are members of the Supreme Court, the new procedure virtually guarantees that the post will fall to one of (the ruling party’s) chosen ones. And should the said procedure fail, which is unlikely but better safe than sorry as the saying goes, the President of the Republic will be given an exclusive right to appoint an interim First President. In other words, it is only a matter of time before the ruling party captures the Supreme Court as a whole as it has already captured the CT and the NCJ, but also the Supreme Administrative Court. Indeed, and for the first time since the beginning of the rule of law crisis, the bill also targets the Supreme Administrative Court with the Polish President being given once again the exorbitant power to decide the new rules of procedure of that court.

The bill contains so many outrageous provisions and laughable claims – for instance the bill claims to be mindful of the need to protect the principle of irremovability of judges by which one should of course understand the irremovability of individuals whose appointments are legally tainted due to the unlawful character of the NCJ – it is difficult to be concise. Space constraints precluding further details here, we will refer readers to Professor Marcisz’s analysis:

The provisions in the bill are all designed as an assault on judicial independence. They aim at crushing the opposition against previous illegal reforms among the judiciary. No need to discuss their details: res ipsa loquitur. The bill is blatantly unconstitutional but without a functioning Constitutional Court it does not matter much. It is also contrary to EU law. Not only does it infringe the judicial independence … but also the principle of primacy of EU law.

It was good therefore to see Vice-President Jourová making clear her multiple concerns in a letter to the Polish authorities on 19 December 2019. However, if there is anything the last four years should have taught the Commission is that Polish authorities are never acting in good faith and will not shy away from deliberately and repeatedly violating the principle of loyal cooperation in order to create faits accomplis. The Commission should face up to this unfortunate reality and stop wasting time by repeatedly trying to “engage in a constructive dialogue” with a repeated offender.

What is needed from the Commission is strong leadership via concrete deeds. In this respect, European Commission Vice President Věra Jourová and the European Commissioner for Justice Didier Reynders must be commended for their leadership. The Commission’s decision “to ask the Court of Justice to impose interim measures on Poland, ordering it to suspend the functioning of the Disciplinary Chamber of the Supreme Court” on the back of the pending infringement case 791/19 was an absolutely essential step to take at this point in time. As accurately noted by the Commission, Polish authorities’ refusal to comply with the ECJ ruling of 19 November 2019 and the subsequent ruling of the Supreme Court of 5 December 2019 has created “a risk of irreparable damage for Polish judges and increasing the chilling effect on the Polish judiciary”.

In addition, the Commission should stand ready to launch a fourth infringement action modelled on the infringement action initiated against the attempted purge of the Supreme Court as soon as the pending bill is adopted (and to shorten pre-litigation stage as much as possible so as not to let Polish authorities capture the Supreme Court in the meantime). As for national governments who care about the rule of law, they should systematically join pending proceedings and should the Commission fail to act promptly, they should stand ready to put their money where their mouth is and initiate rule of law infringement actions on the basis of Article 259 TFEU.

5. A fictional country or an EU Member State in 2020?

Imagine a country where national authorities (non-exhaustive list below):

This country is not a fictional one. This country is now Poland under the Soviet-style moniker of the mislabelled “Law and Justice” party.

As accurately observed on 16 October 2019 by the First President of Poland’s Supreme Court: “The end result is that the rule of law in Poland is not simply at risk: it is being erased.” 

Writing a year ago, we warned that the situation in Poland “has deteriorated further to the point of threatening the functioning of the whole EU legal order and therefore, the future of the EU’s internal market itself.” This is no longer a mere threat but a clear and present danger. Poland should now be considered, to borrow an expression from the financial world, as a country in default from a rule of law point of view. EU institutions and EU Member States will soon have to decide on the nature of their losses: Sacrifice their good relations with Polish national authorities or sacrifice the EU legal order.

Stalling for time would be irresponsible. On current trajectory, it is only a matter of time before Poland’s rule of law default eventually triggers a knock-on process of legal disintegration.