Consultation on obtaining evidence in criminal matters from one Member State to another and securing its admissibility (deadline 22/01/2010)

With the launch of a recent Green Paper, The European Commission invites Member States and all concerned stakeholders to define a European strategy concerning the collection of admissible evidence in criminal matters in a cross-border context.

 The Commission Communication recalls that already with the Tampere Conclusions in 1999 the European Council clearly set out the necessity to facilitate mutual trust and recognition of national decisions to overcome the obstacles derived from the differences between national legal systems and promote the fight against cross-border criminality.

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Data protection: At last published the revision of the “E-Privacy” Directive

By updating its regulatory framework for electronic communications networks and services the EU has notably amended the Directives 2002/22/EC (Universal Service Directive) and 2002/58/EC (Directive on privacy and electronic communications). The final text retain the EP amendments (**) which include:

– adaptation of universal service to market and technological developments, including allowing Member States to upgrade universal service obligations to broadband services;

– strengthened access to e-communications for disabled people, in particular via the inclusion of terminal equipment in the scope of the Directive; increased access to and choice of services for the disabled, strengthened right to emergency services in the EU;

– improved contract conditions and greater information to consumers on services, including increased comparability of prices and greater power to the National Regulatory Authorities (NRAs) on tariff information for consumers;

– information to users on the most common uses of e-communications services to engage in unlawful activities or to disseminate harmful content;

– strengthened provisions on access to emergency services, including inter alia a stronger obligation to pass caller location information to the emergency authorities, improved citizens awareness of  ‘112′ number; and introduction of comitology powers for the Commission on access to ‘112’ services;

– facilitating citizens’ access to services starting with “116” for certain services of social value such as reporting missing children, and implementing powers for the Commission to ensure the effective implementation of 116 numbering ranges;

– facilitation of change of provider, including a time limit for number activation after porting; reinforcement of NRAs’ powers to monitor and enforce porting; creation of comitology powers for the modernisation of porting obligations;

– measures to be taken by providers in order to safeguard the security of their services; 
obligation for providers of electronic communications services to notify security breaches affecting personal data to authorities and (in some cases) to subscribers or individuals concerned and introduction of implementing powers for the Commission on the modalities of breach notifications;

– strengthened provisions on protection against spyware and placing of cookies on users’ devices.

The Justice and Home Affairs Council presented to the European Council the priorities for the Area of Freedom, Security and Justice (Stockholm Programme 2010-2014)

During a meeting that started under the Nice regime and finished under Lisbon, the Council of Justice and Home Affairs has adopted the proposal for the multi-annual 2010-14 strategic work programme in the area of freedom, security and justice which has already been addressed by the European Parliament and that should be adopted during the European Council of 10 December in Stockholm.

Following the Tampere Programme (1999) and that of the Hague (2004) the 82 pages of the new programme should define, under article 68 of the Treaty on the Functioning of the European Union “[…] the strategic guidelines for legislative and operational planning within the area of freedom, security and justice”.

A rather arduous exercise given that article 67 of the same Treaty establishes that this “area” should be carried out “[…] with respect for fundamental rights and the different legal systems and traditions of the Member States”.

Now, a glance through the many suggestions of the documents highlights the existing strains between European perspectives and national resistances. This becomes apparent by analysing the ambiguity of the formulation used, the silences and the rhetorical – rather than concrete – calls to the protection of rights and fight against discrimination at the European level. 

The institutional perspective which was pretty much absent in the master proposal of the Commission (with the Irish referendum still pending at that point) as well as in the proposals prepared by the Future Group, finally peeps out with some unrehearsed recalls to the role of the European and national parliaments.

This democratic control visibly frightens the authors of these kind of document especially in relation to sensible domains such as judicial and police cooperation. This is because diplomats and civil servants with wide cultural, experience and technical skills, often perceive any openness to political dialogue as if they were taking a leapt into the unknown, even when they are genuine pro-Europeans.

A further demonstration of the persistence of these resistances comes from the almost desperate and then failed attempt to conclude a transatlantic agreement on a very sensible issues such as the exchange of financial data to fight terrorism, which took place during the last hours in force of the Treaty of Nice on the 30 November.

Nevertheless, the phase has now been ridden out and the actors of the three institutions should come to terms with this and increase their mutual trust, as it has already happened in other even more sensible domains for the European development, such as the internal market.

Establishment of a Joint EU Resettlement Programme

The EU Council of Ministers of Justice and Internal Affairs welcomed the European Commission’s proposal on the establishment of a Joint EU Resettlement Program (COM(2009) 447 final) and the correlated proposal to amend the Decision No 573/2007/EC establishing the European Refugee Fund for the period 2008-2013 (COM(2009) 456 final) on 21 September 2009.

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The outlook of Transatlantic cooperation after the Treaty of Lisbon

Among the most promising, albeit less debated consequences linked to the entry into force of the Treaty of Lisbon, is the new role played by the European Parliament in relation to the conclusions of international agreements in the field of police and judicial cooperation in criminal matters.

Until now the European Parliament has undeniably been a mere observer. Indeed, since the entry into force of the Treaty of Amsterdam in 1999, the European Council has never consulted the European Parliament on the basis of Articles 24 and 38 of the Treaty on the European Union which compels such a consultation only when strategic aspects for the Union are involved. By contrast, with the entry into force of the Treaty of Lisbon, the European Parliament shall become a decisive actor given that international agreements will be subject to approval by Parliament.

It may be considered that the European Parliament did not play an enhanced role in the agreements recently concluded on 28 October with the United States in the field of mutual recognition and judicial cooperation in criminal matters. However, the Parliament will, due to the Treaty of Lisbon, be involved in the conclusion of agreements such as Passenger Name Records (PNR) concerning the exchange of passengers’ data, the access to financial data handled by the inter-banking transfer system SWIFT as well as the exchange of data linked to security checks when dealing with the extension of the United States Visa Waiver Programme to European citizens belonging to countries which are not yet part of this programme.

This working programme will then be completed by the opening of the negotiations on the future transatlantic agreement in the field of data protection which will provide the framework for these complex relations. 

The pressure on the European Parliament has already started with the approval of a Ministerial Declaration in Washington on 28 October which already defines the objectives that need to be reached in this field.  The same declaration has been re-launched by the Conclusions of the European Union/United States Summit which took place on 3 November and will be also be part of the key themes of the Stockholm Programme which the European Council should adopt on 10 December defining the priorities of the area of freedom, security and justice for the next five years.

Will the European Parliament be capable of getting back in the running and engage, with an original dialogue, with the European Council, the European Commission and the Administration of the United States?

It is still too early to answer; however there are clear signs pointing towards a strong willingness of the Strasbourg Assembly to adequately carry out its monitoring and propulsive role acknowledged by the Treaty, rather than being a simple observer.

The proof is that in tandem with the Inter-ministerial Troika, a delegation of the parliamentary Committee on Civil Liberties met high representatives of the United States Administration as well as members of the Congress to have first hand experience of the above-mentioned issues as well as of future agreements.

The initiative has been taken into serious account by the US Administration to the extent that on the 6 November Ms. Janet Napolitano, the third United States Secretary of Homeland Security, attended a hearing in Brussels held by the LIBE Committee to present the results and perspectives of the first year of the Obama Administration in relation to this delicate domain and underwent a barrage of questions that the MEPs had collated during the previous weeks.

Evidently this is not yet an original form of ‘diplomacy’ but it is getting closer to it. Within the next few months it will be possible to see the extent to which all this is just rhetoric or on the contrary -as has happened in the past- a clear position of the European Parliament will paradoxically reinforce both the negotiating role of the European Union and support a greater openness towards European needs not just by the US Administration but also by Congress.

 Emilio De Capitani

Moving forward towards the protection of unaccompanied minors

On September 21, the Justice and Home Affairs Ministers of the EU agreed on the usefulness of “developing common approaches and greater cooperation with the countries of origin, including facilitating minors’ return”. They will have to provide protection for unaccompanied minors in the context of combating trafficking in human beings.

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Visa Waiver: published the fifth report of the Commission

The European Commission has adopted its Fifth Report from the Commission to the European Council on certain third countries’ maintenance of visa requirements in breach of the principle of reciprocity and ad-hoc Report from the Commission to the Council on the re-introduction of the visa requirement by Canada for citizens of the Czech Republic.

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Pilot Project for Malta and strengthening of Frontex

During the JHA Council held on 22 September ministers have had an exchange of views related to a Relation of the Commission regarding the implementation of the conclusions of the European Council of 18 and 19 June 2009. This exchange concerned a proposal for a pilot project for Malta on the internal redistribution of beneficiaries of international protection, as well as on the developments related to the activities of Frontex, particularly focusing on the Mediterranean region. 

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