Category: 1.1 News from the Area of Freedom, Security and Justice

Daily news from the Area of Freedom, Security and Justice.

Mostly Found via:
Statewatch – http://statewatch.org
Eu Logos Athena – http://eu-logos.org/
Euobserver – http://euobserver.com/
Presseurop – http://presseurop.eu
Euractiv – http://euractiv.com/
European Media Monitor – http://emm.newsbrief.eu/overview.html
Réseau Universitaire Européen Droit de l’Espace de Liberté, Sécurité et Justice – http://gdr-elsj.eu/

The UK, the EU and a British Bill of Rights

SUMMARY and CONCLUSIONS OF THE HOUSE OF LORDS 12th REPORT .

FULL REPORT ACCESSIBLE HERE

SUMMARY

This inquiry was timed to coincide with the Government’s public consultation on a British Bill of Rights. The consultation was due to be launched in December last year, but in the event was delayed, and has still not been published. The Secretary of State for Justice’s evidence to us in the course of this inquiry was thus the first public statement in any detail of why the Government thinks a British Bill of Rights is necessary and of what it might contain.

This report assesses that statement, and considers the likely impact of a British Bill of Rights on three areas: on human rights litigation in national courts under the EU Charter of Fundamental Rights; on the UK’s EU legal obligations and international standing; and on the devolved settlements. A broad range of expert witnesses gave evidence to us, including two former Attorneys General, and our views are informed by that evidence.

The Secretary of State said in evidence that the Government’s two main objectives in introducing a British Bill of Rights were to restore national faith in human rights, and to give human rights greater national identity. The reforms the Secretary of State outlined were not extensive, however, and his evidence left us unsure why a British Bill of Rights was really necessary.

Doubts about the wisdom of introducing a British Bill of Rights grew with each evidence session we held. Many witnesses thought the current Human Rights Act incorporated the European Convention on Human Rights into national law in a peculiarly British way, and doubted more needed to be done to put human rights in a national context. Many thought that any restriction of the existing scope of rights under the Human Rights Act would lead to greater reliance on the EU Charter in national courts—a perverse consequence of a Bill of Rights that is intended to stamp national identity on human rights, particularly in view of the greater enforcement powers of the EU Charter. Many of our witnesses were deeply concerned about the effect of departing from the rights provided for in the Convention on the UK’s international standing, particularly among EU Member States, and on the UK’s ability to participate effectively in EU policies on fighting international crime.

We also heard a range of views on whether the Court of Justice of the European Union could be accused of extending the scope of EU law over national law through its judgments on the EU Charter. The weight of expert evidence was clear, and did not support such a conclusion.

The evidence we received from the devolved nations showed strong opposition to a British Bill of Rights and a belief that the repeal of the Human Rights Act would require the consent of the devolved legislatures before a Bill of Rights could come into force. Without this the Government might be left with an English Bill of Rights. The importance of the role of the Human Rights Act in Northern Ireland’s peace process was brought home to us in evidence we received from both north and south of the border.

Taken individually, the views expressed by witnesses to this inquiry raise serious questions over the feasibility and value of a British Bill of Rights of the sort described by the Secretary of State; taken together, they make a forceful case for the Government to think again before continuing with this policy. (….)

SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

The Government’s case for a British Bill of Rights

  1. The British Bill of Rights as outlined by the Secretary of State appeared a far less ambitious proposal than the one outlined in the Conservative Party manifesto, which we set out at the beginning of this report. He made no mention, for example, of reversing the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society; nor of stopping serious criminals from using spurious human rights arguments to prevent deportation. (Paragraph 45)
  2. The proposals the Secretary of State outlined did not appear to depart significantly from the Human Rights Act—we note in particular that all the rights contained within the ECHR are likely to be affirmed in any British Bill of Rights. His evidence left us unsure why a British Bill of Rights was really necessary. (Paragraph 46)
  3. If a Bill of Rights is not intended to change significantly the protection of human rights in the UK, we recommend the Government give careful thought before proceeding with this policy. As the former Lord Chief Justice Rt Hon Lord Woolf CH told us, the repeal of the Human Rights Act and its replacement by a Bill of Rights would be a constitutional change of the greatest significance. (Paragraph 47)
  4. In Chapter 8 we outline the evidence we received on the attitude to human rights in the devolved nations, which reveals a far more positive outlook than the view expressed by the Secretary of State. (Paragraph 48)
  5. We call on the Government to explain its grounds for concluding that, as the Secretary of State expressed it, the UK public sees human rights as a “foreign intervention”, and how a Bill of Rights would address this concern any more than the Human Rights Act does. Many of our witnesses considered that the Human Rights Act gave effect to the ECHR in national law in a way that respected Parliamentary sovereignty. The Welsh Government, for example, thought this a uniquely British approach. (Paragraph 49)

The relative scope of the ECHR and the EU Charter

  1. The main strength of domestic human rights protection under the European
    Convention on Human Rights is its scope. By virtue of section 6 of the
    Human Rights Act, every decision of every public body, including courts,
    must be compatible with the Convention. That is not the case with the EU
    Charter. The EU Charter applies only to public bodies making decisions
    within the scope of EU law. (Paragraph 54)

7 . The application of the EU Charter is narrower than that of the European Convention on Human Rights for two main reasons: not all of its provisions have direct effect, and so they cannot be relied on directly by individuals in national courts; and it applies to Member States “only when they are implementing Union law”. (Paragraph 71)

  1. Understanding the meaning of “only when they are implementing EU law” is central to assessing the scope of the EU Charter’s application in EU Member States. (Paragraph 72)
  1. We found Professor Dougan’s evidence particularly helpful, and draw the following conclusions from it. The expression “implementing Union law” can be equated to “acting within the scope of EU law”, the test used by the Court of Justice before the advent of the EU Charter. A Member State can be said to be acting within the scope of EU law when it either implements EU law through national legislation, or it acts on the basis of EU law, whether implemented or not, or it derogates from EU law. While the test for acting within the scope of EU law is case-specific, and often legally complex, Professor Dougan concluded that the Court of Justice’s approach had been relatively predictable, and surprisingly consistent. (Paragraph 73)
  2. We heard a range of views on this issue, but the weight of evidence we received does not support a conclusion that the Court of Justice has sought to expand the reach of EU law over Member States through its judgments on the scope of the EU Charter. (Paragraph 74)

11 . That said, the inherent difficulty in defining the scope of EU law has given rise to considerable litigation. We think it is likely to continue to do so in the future. (Paragraph 75)

  1. The weight of evidence demonstrates that, were a Bill of Rights to restrict victims’ rights to bring legal challenges under the Human Rights Act, more challenges under the EU Charter in domestic courts would be likely. This, in turn, is likely to give rise to more references from UK courts to the Court of Justice seeking guidance on the scope of EU law and the provisions of the EU Charter. (Paragraph 80)
  2. The Government should give careful consideration to this likely consequence in deciding whether to introduce a British Bill of Rights. (Paragraph 81)

The enforcement of the ECHR and EU Charter in national law

14 . The common law would be unlikely to fill the gaps in human rights protection were the Human Rights Act to be replaced by legislation providing a lower level of protection. (Paragraph 83)

  1. The evidence we received is clear: the power of national courts under the European Communities Act to disapply a provision of national legislation that is inconsistent with the EU Charter is a more effective remedy than a declaration of incompatibility under the Human Rights Act. (Paragraph 95)
  2. A litigant can get compensatory damages for breach of EU law as of right; under the Human Rights Act damages are discretionary. (Paragraph 96)
  3. A challenge under the Human Rights Act may have to be litigated all the way to the European Court of Human Rights, in which case a significant delay will ensue. (Paragraph 97)

18 . We agree with the majority of our witnesses who said that the case of Delvigne is likely to lead to the UK ban on prisoner voting again being challenged, in relation to European Parliament elections. (Paragraph 113)

Would a British Bill of Rights be subject to EU law?

  1. The traditional view is that EU law has primacy over national law, and therefore that the EU Charter would have primacy over the Bill of Rights. (Paragraph 122)
  1. Several witnesses doubted this, however, citing instances in which courts
    have made it clear that there might not be an obligation to follow EU law
    if it conflicted with a significant constitutional principle of national law.
    (Paragraph 122)
  2. The model of the German Federal Constitutional Court, advocated by the
    Secretary of State as one our own Supreme Court could follow, appears ill-
    suited to the UK’s constitutional context. First, the German Basic Law gives
    primacy to EU law. Secondly, even though EU law can be overridden if
    inconsistent with the Basic Law, the German Federal Constitutional Court
    has yet to strike down EU legislation on this ground. Thirdly, the German
    Federal Constitutional Court has the power to strike down the legislation of
    the German Parliament if it considers it to be contrary to the Basic Law. We
    question whether this is a model the UK, with its constitutional principle of
    Parliamentary sovereignty, would want to follow. (Paragraph 123)

The impact of a British Bill of Rights on European Cooperation and the UK’s international standing

  1. We heard concerns that a British Bill of Rights that reduced the UK’s explicit commitment to the ECHR would undermine the UK’s standing within the Council of Europe and more widely. It could also put the effective operation of the European Convention on Human Rights, which requires all contracting States to respect its obligations, in jeopardy. The evidence of two former Attorneys General to this effect was compelling. (Paragraph 129)
  2. These concerns are heightened by the lack of clarity from the Government about whether the UK will remain a contracting State of the European Convention on Human Rights. We call on the Government to state explicitly whether or not it intends that the UK should remain a signatory to the ECHR. (Paragraph 130)
  3. We recognise that there is no formal legal obligation on an EU Member State to remain a party to the European Convention on Human Rights, but our evidence clearly suggests that any attempts by the UK to depart from its standards, or to withdraw from it entirely, would severely strain the UK’s relations and cooperation with other EU States. (Paragraph 138)
  4. The evidence suggests that, were the UK to depart from the standards of human rights currently recognised within the EU, the system of mutual recognition which underpins EU Justice and Home Affairs cooperation would be hampered by legal arguments over its application to the UK. (Paragraph 144)
  5. We urge the Government not to introduce domestic human rights legislation that would jeopardise the UK’s participation in this important area of EU cooperation in the fight against international crime. (Paragraph 145)

The impact of repealing the Human Rights Act in the devolved nations

2 7 . Human rights are entrenched in the devolution settlements of Scotland, Wales and Northern Ireland in a way that they are not under the UK’s constitution: acts of the devolved legislatures can, for example, be quashed by courts for non-compliance with the European Convention on Human Rights or the EU Charter. (Paragraph 180)

  1. The evidence we received from the Scottish and Welsh Governments demonstrates strong support for the role of the European Convention on Human Rights and the EU Charter to be preserved in those nations. The evidence we received from the Government of the Republic of Ireland and Professors Anthony and McCrudden went somewhat further in emphasising the vital role being played by the European Convention on Human Rights and the Human Rights Act in implementing the Good Friday Agreement. (Paragraph 181)
  2. The evidence demonstrates that the Scottish Parliament and Northern Ireland Assembly are unlikely to give consent to a Bill of Rights which repealed the Human Rights Act (we did not receive evidence on this point from the National Assembly for Wales). Were the UK Government to proceed without such consent, it would be entering into uncharted constitutional ter r itor y. ( Pa r ag r aph 182)
  3. The difficulties the Government faces in implementing a British Bill of Rights in the devolved nations are substantial. Given the seemingly limited aims of the proposed Bill of Rights, the Government should give careful consideration to whether, in the words of the Secretary of State, it means unravelling “the constitutional knitting for very little”. If for no other reason, the possible constitutional disruption involving the devolved administrations should weigh against proceeding with this reform. (Paragraph 183)

 

The fight against terrorism in Europe What the EU does (not do) and what it should do (*)

FondazioneBasso

(*) This was the title of a discussion seminar organised by Fondazione Lelio e Lisli Basso on April 18, 2016, attended by leading criminal judicial cooperation experts as well as by Emilio DE CAPITANI, Executive Director of the FREE Group,at the end of which the following document was drafted, which we submit to the attention of all concerned and in particular those responsible for policyin this sector.

A true EU criminal justice area: proposals for discussion

The Lisbon Treaty has profoundly changed “criminal justice cooperation” in the European Union.First, it provides for the introduction of legislative harmonization measures in the spheres of substantive and procedural law, through directives to be approved by means of ordinary legislative procedures.This creates the necessary legal bases for the extension of Eurojustcompetences,well beyond its present remit,and the creation of a European Public Prosecutor’s Office, whose responsibilities would initially be limited to the prevention of fraud against the EU budget, but which later could be extended to other areas, first and foremost the fight against terrorism and organized crime.

These innovations were not so much due to the initiativeof enlightened lawmakers but rather decades of cooperation between judicial bodies of member countries (starting with Council of Europeconventions), the trialling of horizontal forms of joint work (from the European Judicial Network to the practical implementation of Eurojust), and the obvious fact that in a globalized world,crime – financial, organized and terrorist – knows no boundaries, especially in Europe, which has become a single economic area.

This evolution has been followed by major European legal experts, who have supported this long and continuously evolving process.

However, the innovations introduced by the Lisbon Treaty, which entered into force more than six years ago, have remained largely unimplemented. After a first phase, between 2010 and 2012, positively characterized by the adoption of a number of important directives on the harmonization of a uniform set of minimum rights for the defence in criminal proceedings (the necessary prerequisites for building mutual trust among diverse systems and mutual recognition of decisions), legislative efforts seem to have run aground against the great difficulties of the Council, the inertia of the European Parliament and the substantial paralysis of Commission proposals. The only legislative measure of any importance came into force in 2014, the Directive on the European Investigation Order (EU Directive 2014/41 of 3 April 2014), the result of a proposal made by some Member States dating back to 2010,to be transposed, in the not too distant future, by May 2017.

Meanwhile the Commission’s proposals for a new directive on offenses against the Union’s financial interests (so-called PIF Directive) and regulations for the reform of Eurojust and for the introduction of a European Anti-Fraud Public Ministry have for years been lying on the Council’s table after extenuating negotiations and after undergoing a series of modifications that have greatly weakened the original scheme.

With regard to the anti-fraud prosecutor, the text currently under discussion, if approved, does not provide for a truly European public prosecutor’s office, ie a European judicial organ, but only what, in substance, is just another intergovernmental agency, something quite different from the common organ of investigation and prosecution envisioned in Article 86 of the Treaty. Also the proposal for a Eurojust Regulation (a timid rewriting of existing provisions rather than any real consideration of the new possibilities offered by article 85 of the TFEU), at present languishes in an apparent dead end. But what is most striking is that not even in the field of minimum criminal legislation for the protection of the Union’s financial interests, that is to say the defence of public assets that entirely belong to the Union and not to single member states, have we succeeded, in almost four years of negotiations, in reaching agreement in the Council and Parliament. The risk is that, at the end of the negotiations, we shall end up with a diluted version not only of the original 2012 proposal but also the 1995 Convention that the directive is meant to replace. This would represent the first time that a step back has been taken in the process of forming European criminal law and, to some extent, of European integration itself.

Another very serious matter is what appears to be the Council’s substantial closure towards any real discussions of major policy guidelines for the area of freedom, security and justice, with a view to drafting a general document that can replace the Stockholm Program, which expired in December 2014, a document which can continue the course set by the Tampere and Hague programs of 1999 and 2004 respectively. This document, expressly provided for in Article 68 TFEU, has, for nearly two decades, constituted “the” common agenda in this sector for both European and national institutions, something which can be used to set individual measures into a more general framework, and offer future prospects. Its absence seems to be a clear indication of the European Council’s failure to exercise the prerogatives assigned to it by the Treaty itself.

We believe we need to combat this inertia.

The recent dramatic events in France and Belgium have shown, though this was already more than clear, that serious forms of crime, and among them of course terrorism, take advantage of the freedom of movement between our countries. And it is common knowledge that the sort of terrorism we must fight today is structurally and operationally different from the forms that we have known up to now. It operates beyond national borders and beyond European confines, and to imagine that it can be defeated by national criminal policies is a dangerous illusion.

According to the good intentions that have been expressed on numerous occasions, European leaders are motivated by a desire to achieve a higher level of cooperation in criminal matters. However, fine words do not seem to be have been followed by facts.

What is primarily missing from discussions is a frank, empirical and objective assessment of the state of implementation and operation (and especially non-operation) of existing cooperation instruments. We often hear of the difficulties which have prevented effective, trustworthy and complete exchanges between authorities of different states as regards criminal reports and investigations. National authorities do not always cooperate effectively, as would be expected from the principle of mutual trust. Even the flow of information to Eurojust seems to be insufficient, in the eyes of many national authorities, and accompanied by reticence. We must put an end to these nationalistic jealousies. If a crime has transnational characteristics, an answer must be found at transnational level. This is particularly evident with regard to terrorism, and what is certain is that it will not be the introduction of barriers at borders or the presence of police on trains to stop terrorists.

We are asking for this verification to take place, with the support of the many judges and prosecutors that have already cooperated in good faith, and of the academies and universities that have greatly contributed to the development of a common culture.

Negotiations on the European Public Prosecutor’s Office and the PIF Directive are proceeding wearily and contradictorily, based, moreover, on texts that by no means reflect the proclaimed desire to establish a body that will give added value to investigations in this area. They must be finalised within a reasonable time so that the future Public Prosecutor can have effective and efficacious powers of investigation, overcoming neo-nationalist instincts and obstacles.

We believe that the Commission urgently needs to put forward a proposal for a new “facilitation” directive on fighting criminal activities, which, by taking advantage of situations of war and extreme poverty, speculate on migrants and refugees. There have been too many deaths in the Mediterranean and the Balkans. The absence of an effective policy to combat crimes constitutes a black hole in the Union’s policies.

An answer must be found to the annulment of the Directive on data retention by the Court of Justice, Digital Rights Ireland Ltd(C-293/12)of 8 April 2014, to which no response has so far been given. This has resulted in the absence of common rules, so that each country has returned their own national regulations, which are very different, creating uncertainty and confusion in requests for and exchanges of data.

We hope that the framework of European tools to halt the proceeds of criminal activity may finally be completed through the presentation of the Commission proposals on mutual recognition of confiscation orders, including those that are not conviction based.

The European Union must not give in to the temptation of emergency measures for criminal activities, which may lower the level of freedom and security of its citizens. It should instead focus on harmonization and cooperation, so as to raise the overall efficiency of the system while enhancing individual rights.

Contributing to the drafting of this paper were Ignazio Patrone, Lorenzo Salazar, Eugenio Selvaggi and AndreaVenegoni, judges with extensive experience at European level.

The Orbanisation of EU asylum law: the latest EU asylum proposals

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 

by Steve Peers

There have been a number of EU proposals to deal with the perceived ‘refugee crisis’ in Europe over the last year. The latest batch, issued this week, are perhaps the most significant to date. They concern three related issues: visas (notably a short-term Schengen visa waiver for Turkish nationals); Schengen (partly suspending the open borders rules for six months); and asylum (changing the Dublin system on responsibility for asylum seekers, and creating a new EU asylum agency). Further proposals on legal migration and other EU asylum laws are coming in the months ahead.

Essentially, these proposals amount to the ‘Orbanisation’ of EU asylum law. They copy and entrench across the EU the key elements of the Hungarian government’s policy, which was initially criticized: refusing essentially all asylum-seekers at the external border and treating them as harshly as possible so as to maintain the Schengen open borders system.

Background

The surge in the number of refugees and migrants coming into the EU since 2014 led initially to a discordant response from Member States, with Germany and Sweden initially welcoming the arrivals and Hungary trying to stop them. Last September, in a bid to modestly assist the ‘frontline’ border states of Greece and Italy with the large numbers of asylum-seekers, the EU adopted two Decisions on ‘relocation’ (discussed here), in principle taking up to 160,000 asylum-seekers off those countries’ hands and distributing them among other Member States. However, this ‘Plan A’ was ineffective, as some Member States refused to cooperate (even launching legal action) and the remainder relocated very few people.

So ‘Plan B’ was developed: an EU/Turkey deal whereby Turkey either prevented the large number of refugees on its territory from leaving, or readmitted them back from the EU if they did reach EU territory (which in practice usually means the Greek islands). To implement this, Greece agreed to treat Turkey as a ‘safe third country’ or a ‘first country of asylum’ under EU asylum law, with the result that claims were treated as inadmissible. As discussed earlier on this blog, this is a highly dubious interpretation of the law. To induce Turkey to cooperate, the EU agreed to spend money on the welfare of Syrian refugees in Turkey, and to drop the short-term visa requirement for Turkish citizens to visit the EU countries in the Schengen system. (It also agreed to open one more ‘negotiating chapter’ relating to Turkish accession to the EU, but this is a trivial concession: only one of these 35 chapters has been agreed to date, in 11 years of accession negotiations).

In the meantime, many Member States became concerned about the numbers of migrants and refugees reaching their territories, and so resumed checks on the previously open borders between Schengen states. However, under the relevant Schengen rules dating from 2013 (on which, see my thinktank report on the Schengen system here), the authority to do this will soon expire, unless the EU as a whole agrees to suspend the Schengen system for one or more periods of six months. This prospect has been mooted since December 2015 (as discussed in detail here).

So this week’s proposals aim to implement and entrench these policy developments: waiving the visa requirement for Turkey; allowing a limited suspension of Schengen; and amending the Dublin system to reflect the EU/Turkey agreement, to deter asylum-seekers from moving between Member States (allowing Schengen to be fully reinstated) and to incorporate a new version of the failing relocation rules.  All of these measures are related, but I will examine each of them in turn.

Visas

There are three separate proposals to amend the EU visa list. All of them need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  The proposals, if adopted, would not apply to the UK and Ireland, which have their own laws on visa requirements (or waivers) for non-EU countries, due to an opt-out from the EU’s visa laws. That opt-out forms part of those countries’ overall opt-out from the Schengen system, which allows the UK to check people at its borders and refuse entry to non-EU citizens based (mostly) on UK law. It is therefore dishonest to suggest that the proposals would lead to an increased migrant influx into the UK. Indeed the UK’s withdrawal from the EU would not change the rules at all as regards non-EU citizens seeking to enter the UK from (the rest of) the EU – other than the small minority who apply for asylum or who are family members of EU citizens.

These proposals would, in turn: a) waive visa requirements for Turkish citizens; b) waive visa requirements for Kosovo; and c) make it easier to reimpose visa requirements in the event of immigration control issues. It should be noted that the Commission also recently proposed to waive visa requirements for Ukraine and Georgia; those proposals are still under discussion. All these proposals would, if adopted, amend the EU’s main law on visa lists, which dates initially from 2001. That law has been amended many times since, without any official codification of those amendments, but I have codified it unofficially here. Note that the visa waiver would apply to Turkish citizens, not to Turkish residents like the refugees from other countries living there.

The visa waiver for Kosovo is not linked to the overall refugee crisis, but rather to the policy of strengthening relations with EU neighbours, in part as an incentive for them to settle their own disputes. The Commission report on Kosovo fulfilling the requirements for visa waivers refers in particular to a recent border agreement between Kosovo and Montenegro. It also refers to meeting the requirements as regards readmission, reintegration, document security and organised crime.

As for Turkey, there is obviously a direct link with the EU/Turkey refugee deal. A fast-track visa waiver was promised to Turkey as part of that deal. But it is still subject to Turkey meeting the EU’s conditions. According to the Commission’s report, Turkey meets all but 7 of 72 requirements: the exceptions relate to issues like readmission, corruption, terrorism and document security, and the Commission believes that they will be fulfilled by the time the visa waiver is granted. In any event, the document security point is addressed by limiting the visa waiver to those with biometric passports.

A longer staff working document elaborates on this assessment, but it is not convincing on several points. As regards asylum issues, it states that the obligation to lift the geographical limitation on the Geneva Refugee Convention (which means that Turkey only fully recognises Europeans as refugees) is met by Turkey because that country treats non-Europeans just as well as if they are refugees. But it skips over the lack of work permits for refugees who are not Syrians. It also concludes that Turkey does not refoule refugees to dangerous countries (as alleged by NGOs) simply by accepting Turkey’s word to the contrary. The Commission also waives the obligation for Turkey to ratify Protocol 7 to the European Convention on Human Rights, on the grounds that its national law offers equivalent protection. But if so, why be afraid of the supervision of the European Court of Human Rights on these issues? And it is only clear reading the staff working document that the (unresolved) concerns about ‘terrorism’ laws are actually concerns about misuse of terrorism law to crack down on freedom of expression. The main report does not even flag this as one of the most significant concerns. And the existence of these concerns gives the lie to the Commission’s argument (in an earlier proposal, still under discussion) that human rights in Turkey are so well protected as to classify Turkey as a ‘safe country of origin’ for asylum purposes.

The proposal to reimpose visa requirements more easily is implicitly linked to the Turkish visa waiver proposal, although in fact it could apply to any State on the visa waiver list (the ‘white list’). The current rules, dating from 2013, allow ‘emergency’ reimposition of a visa requirement by the EU Commission for a six-month period, renewable for another six months if the Commission proposes to amend the law to make this permanent. This temporary Commission decision can be blocked by Member States, but does not need the approval of the European Parliament. The grounds for it are ‘sudden and substantial’ increases in irregular migration, rejected asylum applications or rejected readmission applications from the country concerned.

There are some further details of these rules in the preamble to the 2013 law.  A ‘substantial’ increase is an increase above 50%, and a low rate of recognition of asylum applications constitutes 3% or 4%, although in either the Commission could choose to use a different number.  Reimposition of visas is not automatic: there is a diplomatic phase during which the Commission talks to the officials of the other country and warns them to take action in light of the impending threat.  The Commission will only propose reimposition if it is not satisfied with the outcome of these talks. So far it has not done so.

Basically the new proposal would make it easier to reimpose visas in several ways.

First of all, it would no longer be an ‘emergency’ or ‘last resort’ decision, and the increases in irregular migration, rejected asylum applications or rejected readmission applications would no longer have to be ‘sudden’.

Secondly, the reference period for examining the increased irregular migration, etc would no longer be over six months, but over two months.

Third, the increase in asylum applications would no longer have to lead to ‘specific pressure’ on asylum systems; so there would need not be a large absolute number of asylum applicants from the country concerned, just a large relative increase in the number of applications.

Fourth, the rejected readmission applications would relate not only to citizens of the country concerned, but also to citizens of other countries who transited through that State’s territory. This is obviously aimed at enforcing the key feature of the EU/Turkey plan: the readmission of refugees to Turkey.

Fifth, the possibility of triggering reimposition of visas as compared to the period before the visa requirement was dropped would now apply indefinitely, and would no longer expire after seven years. The immediate impact of this change would be on Western Balkans countries, where (apart from Kosovo) the EU waived visa requirements in 2009 and 2010.

Sixth, the Commission can trigger the clause, not just Member States. It could act on the same grounds plus an additional ground of failure to apply a readmission deal with the EU as a whole.

Again, the final point aims at enforcing the EU/Turkey refugee deal. If Turkey does stop readmitting refugees, the EU can swiftly react by reimposing visa requirements. This works both ways, of course: if the EU threatens to reimpose visas on Turkish citizens on some other ground, such as an increase in Turkish citizens overstaying without authorization, then Turkey will likely refuse to take back refugees. Indeed, as discussed above, Turkey is threatening to do this if the EU does not waive the visa requirements in the first place – which accounts for the EU’s haste on this point.

Finally, a side issue (relating only to Turkey) is worth discussing. The EU/Turkey association agreement has a Protocol, signed in 1970, that sets a standstill on the free movement of services and freedom of establishment. That means the EU and its Member States can’t make the rules on these issues stricter than they were when the Protocol was signed. The CJEU has also ruled that if the rules are made more liberal than when the Protocol was signed, they can’t be made less liberal after that point without violating the standstill (Toprak and Oguz). While the standstill rule doesn’t apply to tourist visas (Demirkan), it does apply to visas for short-term economic activity (Soysal).

So would the standstill rule in the association agreement prevent the EU from reimposing visas for economic activity by Turkish citizens? In its case law (see most recently Genc, discussed here), the CJEU has said that the standstill rule can be overridden on public interest grounds. So far the case law on this point has concerned integration of family members, although it could also be argued that the objective of preventing irregular migration is also a valid ground to override the standstill. In fact, the CJEU has been asked whether migration control objectives can override it, in the pending case of Tekdemir. However, this case won’t be decided until well after June (when Turkey wants the visa waiver in place); and like the earlier cases, it concerns legal migration.

Schengen

The idea of suspending Schengen for up to two years was originally mooted back in December – as I discussed in detail at the time. The mechanics of the process, as I detailed there, have been grinding away for some time. Now we have nearly reached the final stage: a Commission Recommendation for a Council Recommendation to suspend Schengen. Once the Council adopts this (by a qualified majority of Schengen states), the suspension can go ahead.

However, the Commission has tried to limit this suspension in time and in space. It would only apply to Germany, Austria, Sweden, Denmark and Norway (where the unilateral authority to suspend border controls is about to expire), and only for an initial period of six months. The Commission argues that the tightening of EU immigration and asylum law should have had sufficient effect by then, so a further suspension would not be justified. Time will tell if this is true: the Schengen rules allow for three six-month extensions of the initial suspension.

For legal reasons, as I discussed in the earlier blog post, the suspension has to be based on blaming a Member State for insufficient control of its external borders. Obviously, the Commission has named Greece. But it has warm words for Greece’s efforts in the last few months, and flights to and from Greece to the Schengen zone will not be affected. This rather measured and proportionate approach contrasts with the Commission’s asylum proposals – to which we now turn.

Asylum

Again, there are three separate proposals, all of which need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  First of all, the current Dublin III Regulation, which sets out rules determining which Member State is responsible for an asylum application, would be replaced by a new Regulation – which I will call ‘Dublin IV’. Secondly, the current Eurodac Regulation, which supplements the Dublin Regulation by providing for the storage and comparison fingerprints of asylum-seekers and those who crossed the border irregularly, will also be replaced by a new Eurodac Regulation. Thirdly, thecurrent law establishing an EU agency known as EASO (the European Asylum Support Office), would be replaced by a new law creating an EU Agency for Asylum (the ‘EU Asylum Agency’).

This is just one batch of proposals: as the previous Commission communication from April (discussed here) set out, it will also soon propose new laws to amend the existing laws on qualification (definition) of refugees and people needing subsidiary protection status, asylum procedures, and reception conditions for asylum-seekers. In effect, this will amount to a third phase of the Common European Asylum System.

Currently, the UK and Ireland have opted in to the EU laws regarding Dublin, Eurodac and EASO. They opted out of the second-phase asylum Directives, but are covered by the first-phase Directives (except Ireland never opted in to the first-phase reception conditions Directive). Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) participate in these laws on the basis of treaties with the EU. It would be up to the UK and Ireland to decide whether to participate in the new proposals; if not, the current Regulations continue to apply. If they opt out of the discussions on the proposals, they could still opt in later after adoption of the legislation, if they find that the final result is more to their liking than they had feared at the outset. Denmark and the Schengen associates could refuse to participate, but in that case their treaties with the EU will automatically terminate.

In the event of Brexit, the UK would no longer be subject to any of the EU asylum laws it is now participating in, unless the EU and the UK negotiate an agreement to that effect. It should be noted that the EU has in practice only ever been willing to extend the Dublin rules to non-EU States if those States are also Schengen associates. (Indeed in some cases, the Dublin and Schengen association treaties have been negotiated as a package).

The EU Asylum Agency

I will start with the least contentious of the new proposals.

Currently, EASO has a number of practical cooperation tasks. In particular, it must: ‘organise, promote and coordinate’ the exchange of information and identify and pool good practice, as well as activities relating to country-of-origin information (ie, information about conditions in asylum seekers’ countries of origin), including gathering and analysis of that information and drafting reports on that information; assist with the voluntary transfer of persons granted international protection status within the EU; support training for national administrations and courts, including the development of an EU asylum curriculum; and coordinate and exchange information on the operation of EU external asylum measures. For Member States under ‘particular pressure’, the Office must gather information concerning possible emergency measures, set up an early warning system to alert Member States to mass influxes of asylum seekers, help such Member States to analyse asylum applications and establish reception conditions, and set up ‘asylum teams’.

For its contribution to the implementation of the Common European Asylum System, the Office gathers information on national authorities’ application of EU asylum law, as well as national legislation and case law on asylum issues. It also draws up an annual report on the situation regarding asylum in the EU. At the request of the Commission, the Office may draw up ‘technical documents on the implementation of the asylum instruments of the Union, including guidelines and operating manuals.’ The Office can also deploy ‘asylum support teams’ on the territory of a requesting Member State, in order to provide ‘in particular expertise in relation to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases’.

How would the EU Asylum Agency be different? As with the parallel proposal for a European Border Guard (discussed here), the Agency would not replace national administrations, but play a bigger role coordinating them.  The main changes are: an obligation to exchange information with the Agency; a stronger role in analysis of the situation of countries of origin, including advice on alleged ‘safe countries of origin’; the development of guidance on applying EU asylum law; monitoring of the Common European Asylum System, including the capacity of Member States to apply it; and increased operational and technical assistance for Member States. An indication of the bigger role for the Agency as compared to EASO will be the planned increase in staff – from about 150 to around 500.

Eurodac

The current Regulation requires Member States to take the fingerprints of all asylum-seekers and irregular border crossers over 14 years old. This information is then stored in the Eurodac computer system. Every asylum-seeker’s fingerprints are compared with those already in the system, to see if he or she has either applied for asylum already or crossed the border irregularly. This is taken as evidence as regards which Member State is responsible for the asylum application under the Dublin rules.

Eurodac can also be used for other purposes. In 2013, the Eurodac law was revised to give police forces and the EU police agency, Europol, limited access to the fingerprint data for the purposes of criminal investigations. Member States may choose to check the fingerprints of an irregular migrant against the system, for the purposes of identification, without storing that data.

The proposed new Regulation would make some key changes to these rules. First of all, it would significantly enlarge the amount of personal data that will be taken and stored. Member States will have to take information on children from the age of six (rather than fourteen), and facial images as well as fingerprints. Eurodac will also now store data on the names, nationalities, place and date of birth, travel document information. For asylum-seekers, it will store the EU asylum application number (see the Dublin IV proposal), as well as information on the allocated Member State under the Dublin rules, for the first time. For irregular border crossers and irregular migrants, it will store the date of the removal from the territory.

There will no longer be an option merely to check data on irregular migrants; rather Member States will be obliged to take and store this information. While the rules on police and Europol access to Eurodac data will not be changed as such (although the Commission will review those rules soon), there will be more personal data for them to access: they will be able to get facial image information, and more individuals will have their personal data recorded in Eurodac in the first place.

Secondly, it will be possible for fingerprint data to be taken not only by national officials, but also (as regards asylum-seekers and irregular border crossers) by the new EU Border Guard and EU Asylum agencies. Thirdly, while asylum-seekers’ data will still be retained for ten years, data on irregular border crossers will now be retained for five years – up from 18 months at present. Data on irregular migrants will also be retained for five years. The data will be marked if a Member State gives a residence permit to an irregular migrant. Finally, Eurodac data will now be made available to third countries for the purposes of return, on certain conditions, including a refusal to disclose if the person who has applied for asylum. But the non-EU country might guess that the person has applied for asylum; in fact the EU’s procedures Directive requires that country to be informed of this in some cases.

The Commission justifies these changes by the need to strengthen the EU’s return policy as regards irregular migrants, and to keep track of them if they make movements across the EU. It believes that taking fingerprints and photos of young children is justified for child protection reasons. Collecting personal data on facial images is justified because some persons refuse to have their fingerprints taken.

This proposal obviously raises huge data protection issues, and it will be important to see what concerns are raised by national data protection authorities, as well as the EU’s Data Protection Supervisor. The arguments about child safety should be independently assessed by child protection experts. It is conceivable that taking facial images would avoid the need to insist upon taking fingerprints coercively, but it’s not clear why the Commission believes that storing data on names, birthdates et al is justified. The use of Eurodac to underpin EU return policy obviates much need to use or expand the Schengen Information System (which currently contains data on non-EU citizens who are meant to be refused entry) for similar purposes, and raises the question of whether there need to be two different databases addressing the same issue. The choice between the two databases is particularly significant for the UK, since it will have access to the Eurodac returns data (if it opts in to the new proposal), but doesn’t have access to the immigration alerts in the Schengen Information System, and indeed can’t have access to those alerts unless (rather improbably) it fully joins Schengen. (However, the UK does have access to the criminal law alerts in the Schengen Information System, such as alerts on suspected terrorists: see my further discussion here. It could lose that access after Brexit, as I discuss here).

Dublin IV

As noted at the outset, the amendments to the Dublin Regulation essentially aim to entrench the EU/Turkey deal and to save Schengen by deterring secondary movements of asylum-seekers, while also making a fresh attempt to establish relocation rules. To accomplish each of these objectives, the Commission proposes an extreme solution which is probably legally and/or politically unfeasible.

Let’s examine each element in turn. In order to entrench the EU/Turkey deal (and possibly future heinous deals with countries like Libya), the proposal transforms a current rule which gives Member States an option to apply to state that a non-EU state is a ‘safe third country’ for an asylum applicant in accordance with the asylum procedures Directive, rather than send the applicant to another Member State or consider the application after a transfer from another Member State under the Dublin rules. The CJEU recently took a permissive view of this provision (Mirza). In place of this option, there would be an obligation to assess the inadmissibility of an application on ‘safe third country’ or ‘first country of asylum’ grounds before applying any of the rules on responsibility for applications. This confirms the current practice as regards asylum-seekers coming from Turkey to Greece, which aims to return as many of them as possible to Greece despite the dubious designation of Turkey as a ‘safe’ country for asylum-seekers.

This doesn’t matter much in cases where Greece would anyway be responsible for considering the application under the Dublin rules, because it was the first country where the applicants entered. (Moreover, due to recent closure of the Greece/Macedonia border and other controls and fences on internal and external Schengen borders, it’s now very difficult to leave Greece even for those asylum-seekers not in detention). But contrary to popular belief, that is not the only ground for assigning responsibility under the Dublin rules. There’s also an obligation to bring family members together, where one of the family members has status as a refugee or asylum-seeker or otherwise has legal residence in another Member State.

The Mirza judgment did not address whether these family rules take priority over the ‘safe third country’ option, but the Dublin IV proposal is clear.  If a case is inadmissible on the dubious ‘safe third country’ or ‘first country of asylum’ rules, then the Member State in question is responsible, regardless of the family or humanitarian clauses in the Regulation. It’s arguable that this is a breach of the right to family life set out in the EU Charter of Fundamental Rights. But it’s certain that this change completely undercuts the broadening of the definition of ‘family member’ contained in the Regulation – extending it to cover siblings and families formed after leaving the country of origin (while Syrians were living in Turkey, for instance). Those changes therefore amount to a legal ‘Potemkin village’ – a cynical façade intending to mislead a naive onlooker.

It might be argued that family members should not be encouraged to pay smugglers and take unsafe routes to reach their loved ones who are already in the EU. Fair enough – but in that case, the EU should take steps to ensure their safe passage (note that the EU’s family reunion Directive requires Member States to admit family members of refugees). There’s nothing in this week’s batch of proposals to do that. The EU’s informal arrangements with Turkey do provide for ‘nuclear family’ members as one category of Syrian refugees to resettle. But these arrangements are not binding and (at time of writing) not even officially published (see this entry in the Council register of documents). They only apply to the ‘nuclear’ family, and only for Syrians.

Next: the attempt to deter secondary movements of asylum-seekers, in order to reinstate the Schengen system. Most notably, there will be punishments for asylum-seekers who do not stay in the responsible Member State. In that case the asylum procedure will be accelerated, and they will lose all benefits (health, education, welfare and accommodation) except for emergency health care. (However, the grounds for detention of asylum-seekers in the Dublin Regulation will not change – though the future proposal to amend the reception conditions Directive might seek to amend the detention rules there instead.) This will overturn the CJEU ruling in CIMADE and GISTI, which was based on the right to dignity in the EU Charter. Let’s put it plainly: asylum-seekers who flout the Dublin rules will be left to starve in the streets – even children, torture victims and other vulnerable people. And fast-tracking their asylum application implicitly aims at refouling them to their country of origin, with only limited suspensive effect of any appeal to the courts.

The violations of the Charter don’t stop there. According to the CJEU case law on the current Regulation, unaccompanied minors can move to another Member State and apply there. This ruling (MA) is also based on the Charter (rights of the child), but the Commission wants to overturn that too – in the process trashing its own proposal dating from 2014. Again, any attempt to argue that this aims to protect children by deterring them from moving is undercut by the prioritisation of inadmissibility rules over family reunion rules (even for unaccompanied children), as well as the failure to insert rules to ensure that the Dublin family rules are actually applied (such as the recent UK ruling on a requirement for DNA tests). If the EU and its Member States care so much about asylum-seeking children, why have they detained so many in Greece in poor conditions, and shrugged as so many suffered in northern Greece – shirking the legal obligations which they accepted to relocate them?

Furthermore, the proposal limits both the substantive and procedural remedies for applicants. They will only be able to challenge a decision on the responsible Member State on the grounds that the asylum system has broken down, or that they should be with their family member. This overturns the opinion in the pending cases of Karim and Ghezelbash (although it is possible that the Court will not follow this opinion). Also, they will only have seven days to appeal: this risks a breach of the Charter right to an effective remedy, given that in the Diouf case the CJEU found that a 14-day time to appeal was acceptable.

The proposal doesn’t only aim to restrict asylum-seekers in order to ensure that Dublin works effectively; it will also restrict Member States to the same end. The essentially unlimited discretionary ‘sovereignty’ and ‘humanitarian’ clauses will be amended to severely limit the circumstances in which a Member State can examine an application that is not its responsibility. If Angela Merkel (improbably) wanted to repeat her open-door policy of summer 2015 in future, the proposal would make that illegal. Various deadlines for Member States to act would be speeded up (although Member States have said before that this is impractical). Conversely, other rules which limit Member States’ obligations will be dropped: there will be longer periods of responsibility after issuing a visa or residence permit, and responsibility for those who cross a border without authorisation, or who abscond or who leave the EU and then come back, will be endless.

This brings us to the relocation rules. These will be triggered once a Member State is responsible for more than 50% of the asylum applications which objective criteria (based on income and population) indicate that it ‘should’ be responsible for. In other words, if Greece ‘should’ be responsible for 50,00 asylum applications under those criteria, other Member States would be obliged to relocate asylum-seekers from Greece once it was responsible for 75,000 applications. But Member States can’t relocate asylum seekers whose applications are inadmissible under the new rules discussed above, so this may have little impact on Greece anyway. Indeed, if the EU/Turkey deal breaks down, the combination of these rules would in principle put Greece in a worse position than it is currently. A new emergency relocation Decision would have to derogate from the Dublin rules again.

Then the proposal becomes truly surreal. The Commission suggests that Member States may opt out of relocating asylum-seekers, but they will have to pay €250,000 per asylum-seeker if they wish to do this. This is a fantasy on top of a fantasy. Member States have already shown that they are unwilling to apply the relocation Decisions of last September, or to adopt the proposal to amend the Dublin rules to this end that was tabled at that time. The idea of financial contributions in place of accepting individuals, whatever its merits, is perceived to be a ‘fine’ and was already rejected by Member States last year. That idea will not suddenly appear more attractive to Member States by doubling down on it, and suggesting a contribution set at an obviously absurd and disproportionate level, which the Commission does not even try to justify.

So why did the Commission jump the shark here? Perhaps someone in the Commission lost a bet. Or perhaps this is a legislative homage to the Belgian surrealist tradition of Magritte, et al. More seriously, it might be intended as a negotiating position. But such a ridiculous position will just backfire: it’s as if management started the latest pay talks with the unions by arguing that the workers should start paying the company for the privilege of working there. Or perhaps it’s a subtle way of addressing Greece’s debt problems: rejecting the relocation of a mere 10,000 asylum-seekers from Greece would transfer €2.5 billion to the Greek treasury – where it would rest briefly on its route to Germany.

I have another theory, well known to followers of British politics. Maybe the €250,000/person proposal is the Commission’s equivalent of ‘throwing a dead cat on the table’. The phrase is borrowed – like the EU’s current asylum policy – from Australia. It means that if the political conversation is particularly damaging to a certain politician, an ally of that politician suddenly does or says something outrageous. Everyone will start talking about that outrageous thing, just as they would be talking about the unfortunate feline; which means that no-one is talking about the original issue any more.  In this case, it means that everyone is talking about the €250,000 – and no-one is talking about the suspension of Schengen, or of the families who would be split up, or the people who would be made hungry and homeless, by the Commission’s Dublin IV proposal.

Conclusion

The Commission’s proposals are not a done deal, of course. Some Member States and Members of the European Parliament have misgiving about a visa waiver for Turkey, on migration control or human rights grounds. MEPs fought for years for many of the provisions in the Dublin III Regulation (on family members and unaccompanied minors in particular) which the Commission now seeks to overturn. As I pointed out above, some of the proposed changes to the Dublin rules are highly vulnerable to challenge in the CJEU, if adopted. The red herring of a €250,000 sanction is already floating on the surface of the pond. And the whole EU/Turkey deal might anyway be overturned at the whim of Turkish President Erdogan – the only politician whose ego makes Donald Trump’s look small by comparison. Nevertheless, EU asylum policy is already becoming more Orbanised in practice, and I would expect at least some elements of the further Orbanisation proposed by the Commission to be adopted.

For over twenty-five years now, the EU and its Member States have been attempting to get the Dublin system to work. The continued abject failures of those attempts to get this pig to fly never seem to deter the next attempt to launch its aviation career.  With this week’s proposals, the Commission is in effect trying to get the poor beast airborne by sticking a rocket up its backside. It might be best to stand back.

Goodbye, cruel world: visas for holidays after Brexit?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (April 25, 2016)

by Steve Peers

Until yesterday, I have consistently argued that the prospect of British citizens being subject to visas for short-term visits to the EU after Brexit was highly remote. In fact, I even told off some ‘Remain’ supporters who suggested that this might happen. EU policy is consistently to waive short-term visa requirements for wealthy countries (like the USA, Canada and Japan) as long as those countries waived short-term visa requirements for all EU citizens in return. I couldn’t imagine that it was likely that anyone on the ‘Leave’ side would wish to advocate short-term visa requirements for EU citizens visiting the UK after Brexit, thus damaging the British tourist industry and leading to a reciprocal obligation for UK citizens to get visas for short visits to the EU.

Incredibly, I was wrong on this. Yesterday, Dominic Raab, a senior figure on the Leave side, suggested that the UK might want to introduce visas for EU citizens after Brexit, and accepted that UK citizens might be subject to visa requirements for visits to the remaining EU in turn. It can’t seriously now be suggested that it’s ‘scaremongering’ to consider that this might become UK policy after Brexit – unless there’s such a thing as ‘self-scaremongering’ by the Leave side.

Let’s be clear about this. The idea of short-term visa requirements after Brexit is utterly and profoundly stupid. It is by no means a necessary consequence of Brexit, and would cause the maximum possible damage to UK businesses and the ordinary lives of British citizens who seek to visit the EU after Brexit, with little or no security benefit in return.

Background: EU visa policy

As an EU Member State, the UK allows short-term entry to EU citizens without a visa, as well as longer-term free movement of people – although the latter issue is severable from short-term visas. The reverse is also true, of course: simplifying the leisure, family and business visits of millions of British citizens to the EU every year. While there is an earlier treaty from the Council of Europe (a body separate from the EU) which abolishes visa requirements between European states, the UK is not a party to that treaty – and presumably would not become one under Raab’s plans.

The EU has agreements on free movement of people with Norway, Iceland and Switzerland, but it seems clear from official statements by the Leave side that the UK would not sign up to these after Brexit. But as I said, short-term visa waivers are a severable issue: the EU does have reciprocal short-term visa waiver treaties with a number of non-EU countries, as well as a unilateral policy of waiving short-term visa requirements for other wealthy countries who reciprocate. Therefore, all it would take for British citizens to retain the visa waiver for short-term visits to the EU after Brexit would be a British government policy not to impose short-term visa requirements on EU citizens, or a UK/EU treaty to this effect. This seemed highly likely – until Raab’s rant.

The EU decides visa policy as a bloc, so there is no possibility that the UK could do separate deals on short-term visas with individual EU countries. As an exception, Ireland (like the UK at present) has an opt-out from the EU’s visa policy, so the UK and Ireland could retain their separate Common Travel Area arrangements – if they wished to. It’s not clear if Raab also wants to impose visa requirements for Irish nationals (which might also then be reciprocated). If that happens, then border controls would have to be reimposed between Northern Ireland and the Irish Republic, as some on the Leave side have already called for (though others have taken a different view).

EU visas: the legal framework

The EU (apart from Ireland) has a standard short-term visa policy, which entails issuing ‘Schengen visas’ valid for all the Schengen states.  So in legal terms we know what the impact would be of the EU imposing visas on British citizens. The basic rules are set out in the EU visa code, although a few EU countries (Romania, Bulgaria, Cyprus and Croatia) don’t apply that code yet as they are not yet fully part of Schengen. While the Schengen system currently has many well-known problems as regards border control, this has not affected Schengen visa policy, and there is no reason why it would do.

To get a Schengen visa, the visa code requires an application at a consulate, although in practice the applications are often made through a private service provider. Applications can be made up to three months before the date of travel, or six months for multiple-entry visas. Applicants need to provide fingerprints, except for children under twelve and some other limited exceptions. They must also provide documents supporting the reason for their travel, obtain medical insurance and pay a fee of €60 per applicant, along with an extra fee if the applicant uses a private service provider. The fee is reduced to €35 for children between six and twelve, and waived for younger children, as well as pupils and teachers on study trips, researchers and representatives of NGOs. It may be waived in a small number of other cases; but it is always payable for tourist or business trips.

Most applications for Schengen visas are accepted, but applications are scrutinised for subsistence and intention to return, so it may be more likely that unemployed or low-waged British citizens find their visa applications refused. Any rejections will be registered in the EU’s Visa Information System for five years, which may make it less likely for a future application to be accepted. Usually a visa is valid for a period of three months over the next six months, but it is possible to get a multiple-entry visa (valid for several trips over a five year period) if there is a proven need to travel frequently. Visas can’t usually be obtained at the border, so British citizens would have to apply for a visa at least several days in advance to be sure of being able to travel. Without a visa, they would be denied boarding planes, trains or ferries, due to the EU law on carrier sanctions.

Back in 2014, the Commission proposed amendments to the EU visa code. They would, for instance, simplify the rules on getting multiple-entry visas, and allow for earlier applications. But such visas would still not be standard. Recently, both the Council and the European Parliament adopted their positions on this proposal, and so it will likely be agreed later this year. I’ve blogged separately on the main changes that the Commission proposed, as well as the chance to add rules on humanitarian visas, and on the specific proposals affecting UK citizens’ non-EU family members. But if the new code ultimately applies to all British citizens, its impact will be obviously be much greater.

The EU has signed some treaties on visa facilitation with non-EU countries. These treaties don’t waive the visa requirement, but they reduce the application fee and simplify the process. Of course they are reciprocal – the UK would have to cut the fees and simplify the process for EU citizens applying for short-term visas to visit the UK too.

Practical consequences: the unbearable madness of visa requirements

There’s no doubt that visa requirements reduce travel for tourism, business and other purposes. There are detailed estimates of the scale of the economic impact in a reportdrawn up for the Commission before it proposed the revised visa code. Think of it at the individual level: if there’s no visa facilitation treaty, a British couple with two teenagers would have to pay an extra €240 for a family holiday in the EU in visa application fees, with fees often paid to service providers on top. Even with a visa facilitation treaty like the one with Ukraine, the family would pay €70 in fees (€35/adult, under-18s exempt from fees), and again possibly service providers.

Raab argues that all this is justified on security grounds. Is it? First of all, the vast majority of terrorist (or other) offences in the UK are committed by British citizens. But some foreign visitors do commit crimes. How best to screen them out? The basic problem is that imposing a visa requirement doesn’t, in itself, increase our capacity to determine if a particular individual is likely to pose a threat. It simply, in effect, moves the decision on entry in time (to a date before arrival) and space (away from the border to a consulate – although individuals will still be checked at the border to ensure that there is a visa in their passport). The best way of knowing if a particular individual is a threat is by checking the available data.

That information is easy to find if the visa applicant has previously committed a crime in the UK, because in that case there ought to be a criminal record accompanied by an entry ban. But in this scenario, the entry ban information should in principle not only be available to consulates considering a visa application, but also to border guards deciding on entry at the border. So the visa requirement adds nothing. Nor does it add anything as far as EU citizens are concerned: the EU citizens’ Directive allows the UK to impose an entry ban on EU citizens who have committed serious crimes; and the UK can (and does) refuse entry to EU citizens at the border.

What if the visa applicant has committed a crime in another country? Whether people have to apply for a visa or are checked at the border, there is no general access to other countries’ criminal records. However, the UK does have access to some relevant dataas an EU Member State. Last year, it gained access to the Schengen Information System, which includes information on wanted persons, including some terrorist suspects. From 2012, the EU system for exchange of information on criminal recordswas set up (known as ECRIS: the European Criminal Records Information System), and the EU Commission recently reported that it had greatly improved the flow of information on this issue. The ECRIS law provides for criminal records to be exchanged more easily as regards a country’s own citizens (so we now have more information on UK citizens who have committed crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t provide perfect security, of course. Not all terrorist suspects’ names appear in the Schengen Information System, for instance. The passenger name records law is likely to be challenged on human rights grounds, since it gathers information on all passengers, not just suspects. The criminal records law was unable to stop a tragic killing two years ago, because British police unfortunately did not ask another Member State about the killer’s criminal record (on the basis of a separate EU law) when they had the opportunity. As I suggested at the time, it would be desirable to provide for automatic circulation of the criminal records of EU citizens who have been convicted of very serious crimes, if they have been released from prison, so that they can be stopped and validly rejected from entry at the border.  The upcoming amendments to the Schengen Information System would be an opportunity to do this.

But how would Brexit, with or without a visa requirement, improve this situation? It would not give the UK any more access to EU databases, or to other Member States’ criminal records systems; indeed, it might mean less access. The EU has not extended ECRIS to any non-EU countries; the Schengen Information System has only been extended to those (like Norway and Switzerland) that are fully part of Schengen. The EU has some treaties on exchange of passenger name data with non-EU countries, but this policy is being challenged on data protection grounds in the EU court.

More broadly, the EU court has ruled in the Schrems case that personal data can only be transferred to non-EU countries that have data protection law ‘essentially equivalent’ to EU law. The UK would have to commit to continue applying a law very similar to EU law, or risk disruptions in the flow of personal data – affecting digital industries as well as exchange of data between law enforcement authorities. This restriction can’t easily be negotiated away, since the case law is based on the EU Charter of Fundamental Rights, which has the same legal effect as the Treaties. The UK’s compliance with the EU rules would almost certainly be challenged in practice: see by analogy the Davis and Watson case already pending before the EU court. Outside the EU, the effect of a ruling that the UK did not comply with the rules would be a potential disruption of the flows of personal data.

One final point. Let’s remind ourselves that the UK already allows nationals of over fiftynon-EU countries to visit for a short period without a visa. So obviously we have found a way to reconcile the possible security threat this might pose with the needs of the UK economy. Why should that be so difficult to do as regards EU countries after Brexit? The mere existence of that policy anyway creates a loophole: any EU citizen with the dual nationality of one of those non-EU states (or perhaps Ireland) would be able to visit the UK without a visa anyway. Or is the intention to require a visa for everyone?

Of course, this loophole would work the other way around too. As a dual citizen of the UK and Canada, I could still visit the EU visa-free on a Canadian passport. So could any other British people who are also citizens of a Member State, or a non-EU country on the EU visa whitelist. But many others (including my family, for instance) could not. Let’s conclude on the utter absurdity of this: a British citizen contemplating the use of a Canadian passport to visit the European Union. Is this really the vision of an open, liberal, global United Kingdom after Brexit that the Leave side want people to vote for on June 23rd?

Data retention and national law: whatever the CJEU rules, data retention may still survive!

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Matthew White, Ph.D candidate, Sheffield Hallam University

Should governments be able to retain data on everyone’s use of the Internet and their phones – because it might arguably aid the fight against terrorism and serious crime? This ‘data retention’ issue raises fundamental questions about the balance between privacy and security, at both national and EU level. Initially, in the electronic privacy (e-Privacy)Directive, EU legislation set out an option for Member States to adopt data retention rules, as a derogation from the normal rule of confidentiality of communications in that Directive. Subsequently, in 2006, at the urging of the UK government in particular, the EU went a step further. It adopted the Data Retention Directive (DRD), which requiredtelecom and Internet access providers to keep data on all use of the Internet and phones in case law enforcement authorities requested it.

However, on 8 April 2014, the Court of Justice of the European Union (CJEU) ruled that the latter Directive went too far. In its Digital Rights Ireland judgment (discussed here), that Court said that the EU’s Data Retention Directive (DRD) was invalid in light of a lack of compliance with the rights to privacy and data protection set out in Articles 7 and 8 of the EU Charter of Fundamental Rights (CFR) (para 69 and 73). This left open an important question: what happens to national data retention laws? Can they also be challenged for breach of the EU Charter rights, on the grounds that they are linked to EU law (the derogation in the e-Privacy Directive)? If so, do the standards in the Digital Rights Ireland judgment apply by analogy?

Instead of addressing this matter urgently, the United Kingdom government sat on its hands for a while and then unprecedentedly rushed through the Data Retention and Investigatory Powers Act 2014 (DRIPA 2014). DRIPA 2014 was intended to be a reactionto the Digital Rights Ireland ruling, giving the UK as a matter of national law the power to retain data that had been struck down by the CJEU as a matter of EU law.

In 2015, Tom Watson (now the deputy leader of the UK Labour Party), David Davis (a Conservative party backbencher) and others challenged s.1 of DRIPA 2014 arguing that the powers to obligate data retention on public telecommunication operators set out in that section of DRIPA did not sufficiently reflect what the CJEU ruled in Digital Rights Ireland. Although that CJEU ruling only applied to EU legislation, they argued that it also applied by analogy to national legislation on data retention, since such legislation fell within the scope of the option to retain communications data set out in the derogation in the e-Privacy Directive, and so was linked to EU law (and therefore covered by the Charter). Even though the e-Privacy Directive only related to publicly available electronic communications services (Article 3(1)), it is submitted that any extension of the definition of public telecommunications operator would fall within the Data Protection Directive, and thus the CFR would still apply. The High Court (HC) ruled in the claimants’ favour inDavis where an order was made for s.1 of DRIPA to be disapplied by the 31st of March 2016, insofar as it is incompatible with Digital Rights Ireland (para 122). This was in the hopes that it would give Parliament sufficient time to come up with a CFR compliant data retention law (para 121).

The government appealed to the Court of Appeal (CoA) which took a radically different approach maintaining that ‘the CJEU in Digital Rights Ireland was not laying down definitive mandatory requirements in relation to retained communications data’ (para 106). But for the sake of caution, the CoA made a preliminary reference to the CJEU asking:

(1) Did the CJEU in Digital Rights Ireland intend to lay down mandatory requirements of EU law with which the national legislation of Member States must comply?

(2) Did the CJEU in Digital Rights Ireland intend to expand the effect of Articles 7 and/or 8, EU Charter beyond the effect of Article 8 ECHR as established in the jurisprudence of the ECtHR?

The CoA was not the only national court to make a preliminary reference to the CJEU on matters regarding data retention and the reach of Digital Rights Ireland. On the 4th May 2015, the Force was with Kammarrätten i Stockholm when it asked the CJEU:

Is a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime (as described [below under points 1-6]) compatible with Article 15(1) of Directive 2002/58/EC [the electronic privacy Directive], 1 taking account of Articles 7, 8 and 15(1) of the Charter?

If the answer to question 1 is in the negative, may the retention nevertheless be permitted where:

access by the national authorities to the retained data is determined as [described below under paragraphs 7-24], and

security requirements are regulated as [described below under paragraphs 26-31],

and all relevant data are to be retained for six months, calculated as from the day the communication is ended, and subsequently deleted as [described below under paragraphs 25]?

The way in which the first question in Davis and Watson is asked doesn’t specify whether the general obligation applies to every service provider under the state’s jurisdiction or specific service providers to retain what they individually process. The assumption is the former as ‘all means of electronic communication and all traffic data without any distinctions’ implies a catch all to the relevant services. The Home Secretary (and indeed the government) may argue that if the CJEU rules in the negative (note that Article 15(1) of the e-Privacy Directive only applies to publically available electronic communications services, thus the justification for retaining data from other services would have to be found in the Data Protection Directive (DPD)) it would mostly have affected cl.78 of theInvestigatory Powers Bill (IPB) (currently before Parliament) which would grant the Secretary of State the power to issue retention notices on a telecommunications or any number of operators to retain for e.g. any or all data for 12 if the power in cl.1 of the draft Communications Data Bill (dCDB) had been replicated. The dCDB was a legislative measure introduced in 2012 to allow public authorities to keep up to date with the sophistication of e-Crime. Clause 1 maintained that:

1 Power to ensure or facilitate availability of data

(1) The Secretary of State may by order—

(a) ensure that communications data is available to be obtained from telecommunications operators by relevant public authorities in accordance with Part 2, or

(b) otherwise facilitate the availability of communications data to be so obtained from telecommunications operators.

(2) An order under this section may, in particular—

(a) provide for—

(i) the obtaining (whether by collection, generation or otherwise) by telecommunications operators of communications data,

(ii) the processing, retention or destruction by such operators of data so obtained or other data held by such operators.

This measure was, however abandoned because the Liberal Democrats (in the then Coalition Government) did not approve of the far reaching nature of the proposal. In regards to cl.1, it clearly was a general power, as no distinction was made on who the obligation to retain may fall upon, and thus it is submitted that this power is analogous to the power which is the subject of the question being asked of the CJEU. Clause 78(1) of the IPB on the other hand, makes the distinction that a data retention notice may require a telecommunications operator to retain relevant communications data. Though there are two possible conflicts, the first, based on the assumption that the CJEU rules in the negative (to the first question) is cl.78(2)(a) and (b). This gives the Secretary of State the discretion to issue retention notices on any description of operators to retain all or any description of data. This could be considered a general obligation because it could affect all telecommunications operators and then be classed as a general obligation.

Secondly, retention ‘without distinction’ or ‘exceptions’ may be important when it comes to traffic data pertaining to journalists, politicians, and the medical and legal professions. But because the reference doesn’t mention specific service providers it cannot be said with certainty how much this would affect cl.78(1) which doesn’t make distinctions or exceptions.

When it comes to limitations on data retention, there is at least one, which was first noted in s.1(5) of DRIPA 2014 which allowed for a 12 month maximum period of retention. This is replicated in cl.78(3) and takes on board the recommendation of the Advocate General’s opinion (AG) in Digital Rights Ireland (para 149).

The President of the CJEU felt it was desirable to combine both preliminary references. The questions of access by both the Swedish and UK courts do not directly affect the cl.78 issuing of retention notices (insofar that it at least doesn’t involve everytelecommunications operator) nor does answering whether Article 7 and 8 was intended to extend beyond Article 8 ECHR jurisprudence. The security arrangements are dealt with by cl.81 (whether they are adequate is a different matter) and thus not relevant to the issuing of retention notices.

This, however, proceeds on the assumption that the CJEU will rule in the negative to the Swedish preliminary reference regarding retention being lawful for the purposes ofaccess, because if it does not, cl.78(2)(a) and (b) would not be affected at all. Moreover, the HC in Davis felt that the CJEU believed that data retention genuinely satisfied an objective of general interest (para 44) and that it must be understood to have held that a general retention regime is unlawful unless it is accompanied by an access regime which has sufficiently stringent safeguards to protect citizens’ rights set out in Articles 7 and 8 of the CFR (para 70). The CoA was silent on this matter, and therefore for the mean time, it is understood that if the CJEU rules in the positive, cl.78 would not be affected as a matter of EU law.

On the matter of whether the HC or the CoA had interpreted Digital Rights Irelandcorrectly, it is important to highlight one of the justifications for the CoA conclusions. It maintained in relation to mandatory requirements, that in the opinion of the AG, he was at least, not looking for the Directive to provide detailed regulation (para 77). Yet the CoA failed to mention his conclusions, where it was stated that the DRD was invalid as a result of the absence of sufficient regulation of the guarantees governing access to (by limiting access, if not solely to judicial authorities, at least to independent authorities, or, failing that, by making any request for access subject to review by the judicial authorities or independent authorities and it should have required a case-by-case examination of requests for access in order to limit the data provided to what is strictly necessary (para 127)) the data collected/retained and that the DRD should be suspended until the EU legislature adopts measures necessary to remedy the invalidity, but such measures must be adopted within a reasonable period (para 157-158). So at least in this regard the AG actually supports the stance of the HC (even though no reference was made on this point) and may therefore have had implications for the IPB (which does not require judicial or independent authorisation/review) in relation to access to communications data without a word from the CJEU.

Many thanks to Steve Peers for helpful comments on an earlier draft.

An EU Institutions “Google Maps”? Six years after Lisbon Treaty still the quest for a common compass …

by Emilio DE CAPITANI (*)

As a preliminary disclaimer I have to say that the following observations could not be seen as neutral as I have been an official of the European Parliament for 26 years and it is more than likely that I have been influenced by that experience. That having been said what I will say echoes a direct experience in some crucial moments of the interinstitutional relations since the negotiation of the Single European Act until the entry into force of the Lisbon Treaty. I have to say that the evolution of the role of the European Parliament has not been linear even if its importance was growing Treaty after Treaty but also with some stops, not to say, some regressions, as I am afraid it is happening, quite surprisingly, since the entry into force of the Lisbon Treaty.

However it has been an exciting experience to see how that institution has been able to play a decisive role when the European Community first and the European Union later faced the challenge of establishing an internal market as a supranational area without borders, and, even more when after the fall of the Berlin Wall, the Member States decided, albeit with several reservations to transform progressively the EU in a full-fledged supranational political organization.

It looks like ages ago, when, for instance, under the impulsion of Commissioner Sutherland the Institutions tried in ’87 to define their first common legislative programme.  Moreover it was an extraordinary experience to accompany the European Parliament in its transformation from a consultative body  to a co-legislator  by shaping its internal rules dealing with the legislative activity and the special relation with the Commission (also in the Comitology framework -see OJ L 197, 18.7.1987) or , after Maastricht when the first modus vivendi on codecision procedures was agreed.

The EU Freedom security and Justice area at the core of Member States and EU Institutions relations  

But probably the most interesting experience also from an interinstitutional perspective  has been when, before the entry into force of the Amsterdam treaty I had the chance to lead the secretariat of the Civil liberties Committee (LIBE) which was (and still is) in charge of almost all the freedom security and justice related policies. At that time LIBE was also the Committee in direct relation with the EU Member States notably when they played their role as initiators of EU legislation (which is still the case for judicial cooperation in criminal matters).

From 99 until 2009 (at the entry into force of the Lisbon Treaty) the legislative dialogue between the Member States meeting in the Coreper II, the various Council Presidencies  and LIBE was intense and fruitful notably in the domains already covered by the codecision procedure such as borders, migration and asylum as well as domains giving specific expression (to use a CJEU definition) to fundamental rights such as anti-discrimination measures, transparency and data protection.

To prove the seriousness of the relation between the EP and the Council reference can be made to the fact that it was LIBE who started in 2001 the practice of the so called “first reading agreements” in legislative procedures. It is more than unfortunate that since then this practice of informal trilogues has been progressively developed following the Council internal practice of closed doors by transforming legislative negotiations which should by definition be transparent it in a sort of Bermude’s triangle. I can only hope that the Court of Justice will draw to an end this practice which threatens the implementation of the democratic principle in the EU as well as the right to access foreseen by the Treaties and the European Charter.

Before entry into force of the Lisbon Treaty LIBE committee was also consulted on legislation dealing with judicial and police cooperation in criminal matters and it as more than clear that the Council wanted to maintain a full control and responsibility of these domain so that the only possibility for LIBE to influence the content of the EU legislation in third pillar was by indirect means through it codecision powers on community legislation which was complementary to third pillar measure (see the case of EU legislation on irregular migration,..). When this was not possible and the EP was convinced that the Council or Commission measure was infringing the Treaty or threatening its constitutional prerogatives the European Parliament also brought to the Court the Council and/or the Commission.

In this perspective of reaching an objective by indirect means a pivotal role was played by the legislation on protection of personal data where the European Parliament was co-legislator since the entry into force of the Maastricht Treaty. As, according to the Treaties (and now the Charter) protection of personal data requires an assessment of the necessity and proportionality of a measure taken also in the security domain the LIBE committee took this occasion to assess also the content and the proportionality of EU security related policies such as the infamous PNR agreement with the US. We all know that the EU will also have soon its own “EU-PNR” which have now been agreed with the EP as co-legislator also in the judicial and police cooperation in criminal matters. Someone will think that this 13 years long saga is now drawing to an end. I am not sure. I will advise him to wait at least the incoming CJEU Opinion on the EU-Canada PNR agreement and maybe the first judicial cases on the new EU rules ..

With the entry into force of the Lisbon Treaty and of the Charter of fundamental rights the EP did no more need to use transversal tactics to reach the objectives he was searching before. Judicial and police cooperation was finally ordinary competence to be dealt with qualified majority and fall in the co-decision procedure. Moreover the Charter emphasis on the rights of the individual in all the EU policies and notably in  the freedom security and justice area was paving the way to what LIBE was asking for since its creation in 1992.

After Lisbon still need of a legal “Google Maps” ?

What is paradoxical is what happened at interinstitutional level after the entry into force of  that Treaty and of the Charter. The EU institutions have not all moved at the same pace towards the new constitutional legal framework order and this is a source of growing misunderstanding between them and ultimately of confusing messages for the EU citizens (what can explain why many of them are turning their back to the EU construction) .

If there was a Legal “Google Maps” I  would say that now the only institution which is strongly rooted in Lisbon is, no surprise, the CJEU (even if sometime it is also taken by the nostalgia of the previous world..).

Let me quote some statements in the CJEU in Opinion 2/13 where it is written that : “the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals… …These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe’…

This legal structure is based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected. Also at the heart of that legal structure are the fundamental rights recognised by the Charter (which, under Article 6(1) TEU, has the same legal value as the Treaties), respect for those rights being a condition of the lawfulness of EU acts, so that measures incompatible with those rights are not acceptable in the EU

The autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU… As regards the structure of the EU, it must be emphasised that not only are the institutions, bodies, offices and agencies of the EU required to respect the Charter but so too are the Member States when they are implementing EU law.

The pursuit of the EU’s objectives, as set out in Article 3 TEU, is entrusted to a series of fundamental provisions, such as those providing for the free movement of goods, services, capital and persons, citizenship of the Union, the area of freedom, security and justice, and competition policy. Those provisions, which are part of the framework of a system that is specific to the EU, are structured in such a way as to contribute — each within its specific field and with its own particular characteristics — to the implementation of the process of integration that is the raison d’être of the EU itself. Similarly, the Member States are obliged, by reason, inter alia, of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law. In addition, pursuant to the second subparagraph of Article 4(3) TEU, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU “

Are these ambitious concepts also shared by Member States or the Council or in our Google Maps is still trapped in the Maastricht interpillars games (with some Member States even dreaming to go back in the pre-Schengen era)?  The experience of the last six years and of notably of the last year on the Migration Border and Asylum Crisis shows that several Member States are going backward to the old good time  and do not change the former legal situation notably in police and judicial cooperation in criminal matters.

The fact that even today

  • there is no real Internal Security Strategy adopted with the support of the European Parliament and in full knowledge of national Parliament (and this notwithstanding the art. 70 and 71 of the Treaty on functioning of the European Union requires a close parliamentary oversight of these policies);
  • that the “threats” EU impacting on the EU citizens are defined, measured and assessed only at bureaucratic level at national and european level within EU Agencies (such as EUROPOL, FRONTEX and EUROJUST ) whose oversight is almost virtual
  • that sharing security related information between EU MS is still mostly on voluntary basis
  • that the so called “policy cycle” bringing together (on a voluntary basis) the MS administrations is still managed without a credible connection with judicial authorities at EU and national level.

All this shows that notwithstanding 40 years of engagement (since Trevi in 1975) Member States are still far from sharing their experience and implement the principle of solidarity in the old latin meaning where faced to a common problem everyone is responsible “in solidum” with all the others.

As an EU citizen I am appalled to see that even after more than one year of successive terrorists attacks the EU has not yet decided:

  • to build an EU Anti-terrorism Enquiry Commission (as the US did decided immediately after 9/11)
  • to strengthen the powers of EUROJUST in terrorist domain (as required also by the 2005 decision) in preparation of a future EPPO competence as already foreseen by the Treaties. Let’s hope that the European Parliament unblock the Commission proposal and that the Ministers of interior will not wait for other terrorists attacks before launching a credible “lisbonised” Eurojust (if needed even in a form of enhanced cooperation) .

What is worrying is that instead of strengthening the operational cooperation on specific and measurable targets,  the measures adopted (or under negotiations) at EU level increase the impact on individual’s rights.

Under this perspective it is doubtful that the Council has followed its own internal guidelines according to which (quote) : The recent case law of the European Court of Justice[1] confirms that the Court will not satisfy itself with anything less than a strict assessment of the proportionality and necessity of measures that constitute serious restrictions to fundamental rights, however legitimate the objectives pursued by the EU legislature. It also indicates that such measures do not stand a serious chance of passing the legality test unless they are accompanied by adequate safeguards in order to ensure that any serious restriction of fundamental rights is circumscribed to what is strictly necessary and is decided in the framework of guarantees forming part of Union legislation instead of being left to the legislation of Member States.  (emphasis added)

And where may you find the European Parliament in a virtual Google Maps ?

I think that you can find it  somewhere between Amsterdam and Lisbon as it looks more and more afraid to take position in domains which are clearly still unfamiliar to him and on which relevant background informations are not shared by the Commission or by the Member States (not to speak of the EU agencies and of the so called COSI). I don’t see other explanation to the fact that more and more frequently the EP start working on the most sensitive issues only after the Member States have agreed on something. So, one sensible way to help the EP in playing its co-legislative role would be to share with a credible picture of what is happening on the ground in the different Member States. It is quite promising that when this happens (as now in the framework of the new Shengen evaluation mecahnism)  the EP and the national parliaments feel much more confident than before. But when the same will happen in the framework of the mutual evaluation of  judicial and police cooperation in criminal matters as it is required by the art. 70 of the TFEU ? In the absence of this regular exchange of information how can be improved the mutual recognition of national measures?

This is today a rhetorical question because the Member States with the support of the Commission, which, as we all know, is the “guardian of the Treaties have just decided that the mutual evaluation should remain on a voluntary basis as framed in a Joint Action dating back to the Maastricht era.

Will the EP accept to be continuously be side-lined? I am afraid it will and this not for a legal or institutional reasons but for the very trivial reason that its current political majority is in a way or another mirrored in the main Member States governments so that it may feel uneasy in dealing with issues which can place these Governments in a wrong perspective. As a citizen I can’t but blame this situation because I consider that a weak Parliament could not protect my rights and fullfill the objectives outlined in the EU Charter. Any way what the European and national parliaments don’t dare to do is more and more done by national judges (see the NS and ARANYOSI Jurisprudence as well as the recent ruling of the BVG on the European Arrest Warrant).

Again as Citizen I would prefer to be protected by a clearly defined law and not depend from the appreciation of a judge but this is apparently more and more what we have expect from the EU legislation as the envisaged Directive on terrorism I have cited above.

And the Commission ? In a virtual Google maps the Commission is in a sort of Neverland still trying to re-build its pre-Santer role by trying to become at the same time the Guardian  of the Treaty as well as the true Government of the EU. Has this strategy any chance to succeed ? Could the President of the Commission pretend to have also a support of the EU citizens in alternative to the EP itself because of the Spitzencandidat invented in the very last days before the EU elections ? I am not sure even if are now countless the family’s photo bringing together the Presidents of the EP, of the European Council and of the Commission.

What I notice instead is that executive functions also in the Freedom Security Justice Area are more and more transferred to European Agencies where the Member States come back on the driving seat by becoming some pre-federal entities (which are deemed to be INDEPENDENT both from the Commission and of the Parliament which can play a light oversight). This “agencification” trend notably in the freedom security and justice area can now be further developed thanks to the ESMA ruling and will probably progressively change the institutional balance.

The case of Frontex is to my understanding a proof of this. It is unfortunate that until now the Member States have not found the same courage for the EPPO notwhistanding the explicit provisions in  the Treaty. In this perspective the Better Law Making agreement by which the Commission is trying to harness the legislative policy cycle looks more like a tail which pretend to move a dog ….  But even when the Commission has to play its role faces some difficulties . Look at the draft Directive on terrorism which has been presented without a credible impact evaluation of the existing legislation nor of the new rules. Guess how could had been the text if it was not proposed by the same Vice President of the Commission in charge of the Better Law making and of the implementation of the EU Charter..

I can’t end my short intervention without making reference to a new “Quasi-EU” Institution more and more proactive within the freedom security and justice area. We can call it the “Head of State and of Governement Group” which has recently agreed with Turkey a so-called Deal. The EP and also some scholars have raised questions about the legal nature of such a deal. The provisional answers given until now even the President of the European Council is that it is binding but it is not a formal EU agreement. This remind me the famous Magritte painting showing a pipe but stating “this is not a pipe”. Following the same logic the next question is;

“Is this still an European Union or are we already looking at in the new season of Games of Thrones ?

(*) NOTA BENE : this is a transcripition of an intervention at the ECLAN Seminar on : The Needed Balances of EU Criminal Law: Past, Present and Future  (Brussels 25-26 April 2016)

NOTES

[1]             See Judgment of 8 April 2014, Cases C‑293/12 and C‑594/12,  Digital Rights Ireland (information note by the Council Legal Service in doc. 9009/14)

La sécurité digitale à l’heure des crises migratoire et terroriste, le noeud gordien de l’interconnexion des fichiers

ORIGINAL PUBLISHED ON CDRE SITE (20 AVRIL 2016)

par Pierre Berthelet, CDRE

La situation que connaît actuellement l’Union européenne n’aura échappé à personne. Qu’il s’agisse de la crise migratoire ou de la crise terroriste générée par les attentats à répétition en 2015 et en 2016, le remède préconisé par les États membres par la voix du Conseil et du Conseil européen, consiste à vouloir sécuriser davantage les frontières extérieures de l’Union européenne.

La protection renforcée de celles-ci constitue l’enjeu majeur de la lutte menée contre le phénomène terroriste, dont l’agenda converge désormais clairement avec la politique européenne en matière migratoire, comme l’atteste la communication de la Commission du 6 avril 2016 intitulée « des systèmes d’information plus forts et plus intelligents pour les frontières et la sécurité ». Le texte affirme à cet égard très clairement une « interconnexion dynamique » entre police, migration et gestion des frontières.

La crainte actuelle est, en particulier, le phénomène des combattants de l’État islamique venant d’Irak et de Syrie. L’organe de coordination antiterroriste belge, l’OCAM, a d’ailleurs souligné, le 19 avril 2016, un risque considérable d’attentat de la part de ces combattants, des Européens partis faire le Jihad au Moyen-Orient et rentrant aguerris (phénomène dit des « returnees »).

Nouveaux défis, mais anciennes solutions donc. L’observateur ne peut qu’avoir une impression de déjà-vu : les choix de ces derniers mois formulés par les chefs d’État et de gouvernement, inspirant les orientations contenues dans cette communication, ressemblent, à bien des égards, à ceux des Conseils européens de Laeken de 2001, de Séville de 2002 ou encore de Thessalonique 2003. À l’époque, l’Union était déjà confrontée aux problématiques du terrorisme et d’échouage de migrants sur les côtes européennes. Les agendas antiterroriste et migratoire se mêlaient alors autour de la sécurisation des frontières extérieures pour éviter toute intrusion possible d’agents d’Al-Quaïda dans l’UE, dissimulés dans les colonnes de migrants, jetant ainsi les fondations du projet des frontières électroniques (smart borders).

Anciennes solutions, mais nouveaux défis néanmoins. La communication du 6 avril 2016, accompagnée d’une proposition de règlement instituant le « Système Entrée-Sortie » (correspondant à une révision du précédent projet présenté en 2013, jugé trop onéreux par les États membres), marque un nouvel épisode dans la création des frontières électroniques européennes. Elle s’inscrit dans le contexte d’enjeux très actuels : la protection des frontières extérieures au prisme de la lutte antiterroriste a trait à deux problèmes distincts, celui des « combattants étrangers » (1) et celui de la fraude documentaire (2).

Dans le premier cas, il s’agit de contrôler les flux de voyageurs sortants pour empêcher ces « combattants étrangers » (foreign fighters), c’est-à-dire les jeunes Européens désireux de partir faire le Jihad au Moyen-Orient. Dans le deuxième cas, il s’agit de contrôler les flux de population, pour la plupart fuyant la guerre dans cette région. En réalité, ces deux problématiques se recoupent car la fraude documentaire concerne le contrôle des titre de voyage dont sont porteurs les flux de voyageurs, y compris les migrants irréguliers rassemblés dans les hotspots. Elle a trait aussi à l’identification des « combattants étrangers » franchissant les frontières Schengen avec de faux papiers. Les solutions apportées concernent, dans un cas comme dans l’autre, un meilleur déploiement des fichiers et une plus grande interconnexion de ceux-ci (3).

Analyser la manière dont l’Union s’efforce de répondre à ces deux problématiques distinctes mais sécantes est instructif. Cette réponse s’exprime de façon commune, le recours à la sécurité digitale, c’est-à-dire l’utilisation accrue des systèmes d’information et de communication et ce, en écho au phénomène de digitalisation de la vie sociale observable dans d’autres secteurs à l’ère du Big Data, tels que la santé digitale. Les problématiques secondaires, fraude documentaire et combattants étrangers, se trouvent au cœur de la résolution des crises migratoire et terroriste, elles-mêmes étroitement imbriquées. Il s’opère à ce propos un phénomène d’intrication immigration-terrorisme dans un contexte où s’échafaudent des capacités de gestion de crise horizontale, c’est-à-dire de polycrises.

L’interopérabilité des systèmes d’information devient alors un enjeu central, crucial même, car de son succès dépend la protection effective de l’Union. La sécurité digitale, expression archétypale dusolutionnisme technologique, constitue un nœud gordien au sens où le sort de lutte antiterroriste dépend de la réussite de l’interopérabilité des systèmes d’informations, qu’ils soient à finalité sécuritaire ou migratoire, l’une et l’autre apparaissant désormais mêlées.

1. Verrouiller les frontières pour résoudre le problème des combattants étrangers 

Continue reading “La sécurité digitale à l’heure des crises migratoire et terroriste, le noeud gordien de l’interconnexion des fichiers”

(Legislative Alert) : The EU Directive on Passenger Name Record (PNR)

DIRECTIVE (EU) 2016/… OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of … on the use of passenger name record (PNR) data  for the prevention, detection, investigation and prosecution of terrorist offences and serious crime

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular point (d) of Article 82(1) and point (a) of Article 87(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee[1],

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure[2],

Whereas:

(1)          On 6 November 2007 the Commission adopted a proposal for a Council Framework Decision on the use of passenger name record (PNR) data for law enforcement purposes. However, upon entry into force of the Treaty of Lisbon on 1 December 2009, the Commission proposal, which had not been adopted by the Council by that date, became obsolete. Continue reading “(Legislative Alert) : The EU Directive on Passenger Name Record (PNR)”

“MIGRATION COMPACT”: Contribution to an EU strategy for external action on migration

 (ITALIAN NON-PAPER) : ORIGINAL PUBLISHED HERE 

 

  1. INTRODUCTION

The unprecedented phenomenon of growing migratory flows towards Europe is expected to last for decades due to various geopolitical dynamics in the neighbourhood and beyond (mainly Middle East and North Africa, Sahel, Horn of Africa): security challenges and regional instability, deterioration of economic and social environment, poverty and unemployment, climate change, etc. The migratory challenge is seriously jeopardising the fundamental pillars of European integration (e.g. integrity of the Schengen area) and solidarity among Member States.

The complexity of such a challenge is linked to the mixed nature of the flows (both refugees and economic migrants). Actions taken in the Eastern route have to deal with mixed flows with a greater component of refugees due to the civil war in Syria. Flows through the Central/Western Mediterranean route are composed mainly by economic migrants and are expected to last in the medium-long term. The EU should be ready to cope with both challenges (the second is expected to last for decades) as well as with the opening of other possible routes (eg. north-east).

At the same time, if well managed, migration may represent an opportunity both for the EU and partner countries, in terms of economic growth and development, and for an ageing Europe in terms of sustainability of social security systems.

  1. LESSONS LEARNED

Most recently a number of initiatives and legislative proposals have been discussed at EU level to address the challenge, mainly focusing on the EU internal dimension, such as: the establishment of the European Border Guard; the reform of the Common European Asylum System which should feed into ambitious legislative proposals; the Decisions on relocation adopted in 2015; the intention of the Commission to not take into account the costs for the management of the current crisis under the Stability and Growth Pact; the Communication “Back to Schengen” and the recent proposals on “Smart Borders”.

However such measures only constitute components, even though important ones, of the more comprehensive response needed which so far does not yet directly address the external dimension of our migration policy. In order to be effective such internal measures need to be complemented with a stronger joint external action. The outburst of the migratory crisis highlighted the need to overcome fragmentation of available EU external action tools and to upgrade the Global Approach to Migration and Mobility, revise the EU-ACP partnership, and further develop the pathways offered by the Valletta Action Plan, by the EU-Turkey agreement and by the existing Dialogues the EU is promoting at regional level (such as the Khartoum and Rabat Processes).

In order to design a reinforced external action strategy on migration it is urgent to carry out a comprehensive analysis of all existing instruments and actions with the aim to highlight the strengths and weaknesses of the existing framework and consequently reorient the EU programming and planning.

The recent EU/Turkey agreement represents the first attempt to initiate a large-scale cooperation with a third country and has shown that it is possible to use existing tools and budget in an innovative way.

All existing initiatives and instruments in the field of external action should be directed (in a coherent way with the internal ones) to developing an active strategy, focussing first and foremost on African countries of origin and transit.

  1. THE WAY FORWARD: “THE FAIR GRAND BARGAIN”

The first step of the strategy should concern the identification of key partner countries to cooperate with on migratory issues and the definition of the kind of cooperation to develop with each of them. A matrix should be defined, on the basis of different migratory features of each country (origin, transit, origin and transit) and be adapted according to the characteristics of the country (e.g: economic and social trends, security, climate change, etc.). The Country Fiches prepared by the Commission and the EEAS are a good starting point and an example of interinstitutional cooperation which is much needed to improve our approach. Such a mapping should be accompanied by a thorough needs assessment to be carried out together with the third country, in a genuine spirit of co-ownership, and should become the basis for Country Specific Action Plans for an enhanced Partnership.

The EU should upgrade its commitment on priorities identified by the third country, while the latter should upgrade its commitment on priorities identified by the EU.

3.1 The EU may offer:

* Investment Projects with a high social and infrastructural impact to be identified together with the partner country as a crucial incentive for enhancing cooperation with the EU. To that end, programming of external action financial instruments (EDF, DCI, ENI, etc…) should be reoriented and a new EU Fund for Investments in third countries should be established.

* “EU-Africa bonds” to facilitate the access of African countries to capital markets (with a medium-to-long-term perspective in order to ensure capital availability for growth and sustainable prosperity schemes), as well as other innovative financing initiatives (facilitating remittances and their re-investment and blending mechanisms, etc.), in synergy with the EIB1 and other European and international financial organizations.

* Cooperation on security: mainstreaming migration (border management/control, customs, criminal justice, management of migrants and refugees in line with international standards) in the mandate of existing and future CSDP missions in Africa (Sahel; a reflection could also be conducted for the Horn of Africa). The logical next step in this process would be a regional grouping of missions to better manage a phenomenon that, by definition, has a “cross-border” dimension. Support should also be ensured to existing regional processes aimed at regional cooperation in security and migration domain (e.g. the G5 Sahel). This approach should go alongside the practical implementation of the Capacity Building for Security and Development concept (“CBSD”), coupling training with adequate equipment.

* Legal migration opportunities, building upon the pillars set out at the Tampere European Council in 1999, as an incentive that could include: entry quotas for workers, information on job opportunities in Europe for third countries nationals, pre-departure measures (including language and vocational training) in collaboration with European companies ready to employ manpower from third countries, matching of demand and supply of jobs, professional and social integration in the host Member States, Erasmus Plus programmes for students and researchers. Initiatives on circular migration as well as south-to-south migration opportunities should be further explored.

* Resettlement schemes as compensation for the burden on those countries that engage in establishing national asylum systems in line with international standards.

3.2 The EU may ask:

* Commitment on effective Border Control and reduction of flows towards Europe. The EU should help with “capacity building” initiatives and supply of equipment and technologies. Third countries should also engage in Search and Rescue activities. The European Border Guard, within its new mandate, has to step up the cooperation with third countries and have a coordinating role.

* Cooperation on returns/readmissions, focusing on operational agreements, reciprocal posting of liaison officers in third countries and Member States to speed up identification and issuing of travel documents. The EU should fund these secondments as well as reintegration programmes for returnees. The third country should accept repatriations also via charter flights organized by individual Member States or by the European Border Guard. The EU should provide assistance in the development of biometric databases and IT systems for civil registers. Development of readmission cooperation among third countries should be supported by the EU. The EU should promote a coherent revision of the EU-ACP partnership (post-Cotonou) in line with EU priorities on migration, including the full implementation of obligations under art. 13.5 of the Cotonou agreement.

* Management of migration and refugee flows: third countries should be supported in establishing a system of reception and management of migratory flows (including infrastructures and logistics), which should foresee careful on-site screening of refugees and economic migrants, coupled with resettlement measures to Europe for those in need of international protection and returns for irregular migrants.

* Establishment of asylum systems: the EU should support third countries in establishing national systems, in line with international standards, which offer on-site protection (“safe harbours”) to those in need. The experience of relevant international organizations such as UNHCR and IOM could be used to help third countries to establish reception centres for refugees, financed by the EU.

* To strengthen the fight against trafficking in human beings and smuggling of migrants also through joint police and judicial cooperation.

To implement this approach, the new European Border Guard (in particular the new Office for Returns) should develop a plan (already before the entry into force of the Regulation) for joint EU return operations to be financed with the EU budget and for supporting return operations from third countries of transit to countries of origin (where cooperation on readmission is in place). The possibility for Member States having privileged relations with specific third countries to lead and organize (with the support of the Agency) joint return operations should be explored. The EU should use in an effective way its network of Delegations, the new Border Guard and all Common Security Defense Policy instruments. This effort could be complemented by contributions from Member States.

All EU and MS existing security, foreign and development policy instruments should be strategically combined to maintain a constant European law enforcement presence in the Saharan belt with the objective of formally training, equipping, assisting and cooperating on security with countries in the region (border control, joint patrolling, irregular migration and trafficking, terrorism, drugs, organised crime, etc.), while informally improving our early warning and prevention mechanisms.

3.3 The “Migration Compact” approach should be financed through:

  • Reorienting of programming of external action financial instruments (EDF, DCI, ENI, etc…).
  • A new   financial   “Instrument   for   the   external   action   in   the   field   of   migration” (IEAM)2 to be established within the EU budget and operate in synergy with AMIF and ISF. In the meantime, the EU should increase resources available under the Emergency Africa Trust Fund in support of a EU-Africa Program for prosperity, security and migration, building on the Valletta Action Plan and make use of regional migration dialogues (such as the Khartoum and Rabat Processes) to ensure African ownership.
  • “Common EU Migration Bonds” to be issued to fund the migration management in Member States and to finance the “Migration Compact” goals.
  • A new EU Fund for Investments in third countries to finance sustainable investments in the region and attract European investors, including through blending structures and operations by the Commission and the EIB.

LIBYA

In this context, the stabilization of major transit countries, such as Libya, is a strategic priority of the first order also to cope with migration and refugee flows. At the EU level, we will need to step up our partnership with the Libyan government, while engaging in targeted capacity-building programs aimed at bolstering the Government’s control over its territory and law-enforcement capacity.

The EU should ensure the best possible use of EUNAVFOR MED Sophia and its capacity in contributing to the disruption of the business model of human smuggling and trafficking networks in the Central Mediterranean, thus contributing to Libyan and regional security. When the necessary conditions will be met, different possible options and tasks can be included in the Operation’s mandate, moving it to new phases and tasks, including the training of the Libyan Coastguard.

In addition the EU should offer Libya security sector support, including advice and capacity building in the fields of police and criminal justice, through a civilian CSDP mission, focusing as well on border management and assisting Libyan authorities in their efforts to fight terrorism and improve management of migration flows.

To this end, UN and EU efforts should aim at supporting the management in Libyan territory of migratory flows, also through careful screening of refugees and economic migrants, coupled with resettlement measures for those in need of international protection and return for irregular migrants.

NOTES

  1. See European Council Conclusions, 17-18 March 2016, doc. 12/1/16.
  2. IEAM should cover potentially all geographic areas and could be used also for mobilising additional funding for the Facility for Refugees in Turkey.

EU Justice Scoreboard 2016: learning from each other to improve the effectiveness of national justice systems

 

European Commission – Press release    Brussels, 11 April 2016

Today, the European Commission publishes the 2016 EU Justice Scoreboard which gives a comparative overview of the efficiency, quality and independence of justice systems in the EU Member States. The aim of the Scoreboard is to assist national authorities in their efforts to improve their justice systems, by providing this comparative data.

For the first time, the Justice Scoreboard also includes the results of Eurobarometer surveys conducted to examine the perception of judicial independence in the EU among citizens and businesses in more detail. This edition of the Scoreboard also uses new indicators, in particular on judicial training, the use of surveys, the availability of legal aid and the existence of quality standards.

“The fourth EU Justice Scoreboard shows that Member States’ efforts to improve justice systems continue to bear fruit. The key role of national justice systems in upholding the rule of law, enforcing EU law and establishing an investment-friendly environment deserve these efforts” saidVĕra Jourová, EU Commissioner for Justice, Consumers and Gender Equality. “The Scoreboard serves as a tool to learn from each other to render European justice systems more effective.”

Key findings from the 2016 EU Justice Scoreboard include:

  • Shorter duration of litigious civil and commercial cases: While there is overall stability on pending cases, improvement can be observed in several Member States that faced particular challenges with a high number of pending cases.
  • Better accessibility of justice systems, in particular in matters like electronic submission of small claims or promotion of Alternative Dispute Resolution (ADR) methods. However, there is still room for improvement in online availability of judgements or electronic communication between courts and parties.
  • Further efforts are still needed to improve the training in judicial skills and the use of information and communication technologies (ICT)for case management systems.
  • Most Member States have standards covering similar aspects of their justice systems, but there are significant differences as regards their content. For example, less than half of Member States have standards on measures to reduce existing backlogs and even fewer define the maximum age that pending cases should have.
  • The Scoreboard incorporates the results of different surveys on the perception of judicial independence. For Member States where perceived independence is very low, the most notable reasons given included interference or pressure from government and politicians, and from economic or other specific interests.

Next steps

The findings of the 2016 Scoreboard are being taken into account for the ongoing country-specific assessment carried out in the context of the 2016 European Semester process. The country reports for 26 Member States were published on 26 February 2016 and include findings on the justice systems of a number Member States (BE, BG, HR, ES, HU, IE, IT, LV, MT, PL, PT, RO, SI and SK) (see for latest reports on the 2016 European Semester, IP/16/332 and MEMO/16/334).

The Commission will continue to encourage the judicial networks to deepen their assessment of the effectiveness of legal safeguards aimed at protecting judicial independence.

Background

This is the fourth edition of the Justice Scoreboard. The 2016 EU Justice Scoreboard brings together data from various sources, in particular data provided by the Council of Europe Commission for the Evaluation of the Efficiency of Justice (CEPEJ), which collects data from Member States. It also uses information obtained from other sources, for example Eurostat, the group of contact persons on national justice systems, the European judicial networks such as the European Network of Councils of the Judiciary (ENCJ), the Network of the Presidents of the Supreme Judicial Courts of the EU or the European Judicial Training Network.

The Scoreboard focuses on three main aspects:

  • Efficiency of justice systems: indicators on the efficiency of proceedings: length of proceedings, clearance rate and number of pending cases.
  • Quality indicators: training, monitoring and evaluation of court activities, the use of satisfaction surveys, budget, and human resources.
  • Independence: the Scoreboard incorporates data from different surveys on the perceived judicial independence by companies and the general public.

The EU Justice Scoreboard contributes to the European Semester process by helping to identify justice related issues that deserve particular attention for an investment, business and citizen-friendly environment. It focuses on civil and commercial cases as well as administrative cases.

Together with the specific assessment of the situation in Member States, the 2015 EU Justice Scoreboard contributed to the proposal of the Commission the Council to address Country Specific Recommendations to four Member States (Croatia, Italy, Latvia and Slovenia) to render their justice system more effective. The Commission also closely monitors the efforts in this area in other Member States such as Belgium, Bulgaria, Cyprus, Spain, Ireland, Malta, Poland, Portugal, Romania and Slovakia (see factsheet).

The findings of the Scoreboard are also taken into account when deciding the funding priorities under the European Structural and Investment Funds (ESIF) as regards justice reforms.

While the Scoreboard does not present an overall single ranking, it gives an overview of the functioning of all justice systems based on various indicators, which are of common interest for all Member States. It does not promote any particular type of justice system and treats all Member States on an equal footing. Whatever the model of the national justice system or the legal tradition in which it is anchored, timeliness, independence, affordability, and user-friendly access are some of the essential parameters of what constitutes an effective justice system.

For more information Press pack: http://ec.europa.eu/justice/newsroom/effective-justice/news/160411_en.htm MEMO/16/1285

Press pack on DG Justice website Full document available: http://ec.europa.eu/justice/effective-justice/files/justice_scoreboard_2016_en.pdf

Summary of the Justice scoreboard: Factsheet

Annotated graphs with full figures

Questions and answers on the 2016 EU Justice Scoreboard

European Semester: http://ec.europa.eu/europe2020/making-it-happen/index_en.htm 

Eurobarometer: Flash 435 and Flash 436

 

Press contacts: Christian WIGAND (+32 2 296 22 53) Melanie VOIN (+ 32 2 295 86 59)