Implementing EU law at national level: still a bumpy road…

The European Parliament Research Service has recently published a briefing  dealing with the Challenges in the implementation of EU Law at national level. The document authored by Melanie Smith, (Reader in Law, Cardiff School of Law and Politics, Cardiff University) is clear and updated on the basis also of the recent European Commission works in the so called “better legislation” agenda. The missing point in the Parliament and in the Commission works is that still now true transparency is not yet granted in this delicate phase of the EU policy cycle. European Citizens as well as the European Parliament have no access to the informations dealing with the transposition and implementation of EU law. The same happen for national Parliaments when they want to know how the transposition is progressing in another EU Country.

The relations between the Commission and each Member State remain confidential at least until when the Commission under its discretion as Guardian of the Treaty that an infringement procedure should be launched. This mechanism could had been acceptable when the EU was only an internal market but has became inadequate since when the EU measures can have an impact on the rights of millions of EU citizens.

I am convinced  that the principle of sincere cooperation (art 4.3 TEU) according to which (*) Member States should implement the EU legislation would require now that when an EU measure is adopted the Member State should not only inform the Commission but also its own Citizens on the national measures to be taken by listing the adminstrations in charge and the organizational measures to be taken. Participative democracy should play its role not only in the ascending phase of the EU legislation but also in the descending phase of the EU policy cycle when rights and obligations of citizens are framed at national level. 

(*) Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.The Member States shall 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 Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.

Emilio DE CAPITANI

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Has the EU lost its compass towards an European Area of Freedom Security and Justice ?

                                         

Night view of Europe

 Transforming the European Union into an Area of Freedom, Security and Justice: Twenty years after Tampere and ten after Lisbon, the objective is still out of reach.

 Rome, 28 January 2019, 9.30/12.30 – 14.00/17.30

Spazio Europa (managed by the European Parliament Office in Italy and the European Commission Representation in Italy) Via Quattro Novembre 149 (ground floor) – Roma

Twenty years ago, the Amsterdam Treaty entered into force and with it the objective of transforming and developing the European Union into an Area of Freedom, Security and Justice area (AFSJ). This objective confirmed ten years later by the Lisbon Treaty and by the Charter of Fundamental Rights, signaled the EU Member States determination of transforming the internal market into a new kind of supranational political space placing “..the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.”[i] However, since then, the experience has shown us that despite some important successes, that goal is still far from being realized.

Many factors of political, bureaucratic, institutional nature and, above all, the overlapping of several external and internal crises have put a strain on the Union and its Member States. Although it will not be possible to analyze them in detail in one day seminar of 28 January, we will try to understand what the nature of the major shortcomings and which political legal and institutional steps can be taken to overcome these difficulties during the next parliamentary term, without revising the current Treaties.

Our brain storming will be take place around four round tables open to people coming from European and national institutions or from the academia who have followed closely the evolution of the different policies that contribute directly or indirectly to the transformation of the Union. in Space for freedom, security and justice.

During the round tables the institutional dimension will be taken into consideration (not only at European but also national level), as well as the growing role of European Agencies and Authorities and the international dimension (United Nations, Council of Europe)

1st  Round table: The values that the EU and the Member States must protect and promote

Sharing common values is the prerequisite of achieving together the objectives set by the Treaties and is the basis of mutual trust between Member States, notably when they implement the AFSJ related policies. When these values are risk or are violated, the Treaty provide the possibility to suspend even the voting rights of the Member State in question (Article 7 TEU). In the same perspective the Court of Justice has also recognized that also the mutual trust between the EU MS could be compromised and that this could hinder the mutual recognition mechanisms notably when respect for the rule of law is at stake. This round table will discuss on one side the common policies related to the AFSJ so that they respect the EU fundamental values and rights and on the other side the measures to be taken when one or more Member States jeopardize the values and the objectives of the EU. One can therefore ask whether, new mechanisms should be created to prevent these shortcomings at EU and National level.

Speakers: Enzo Cannizzaro, Valerio Onida, Oreste Pollicino

2nd Round Table: Freedom of movement, border control, asylum and migration

Freedom of movement within the EU and the abolition of internal border controls are the proof of the existence of a supranational human mobility area so that it is worrying that several EU Member States are trying to re-establish in a more or less permanent way these checks at the internal borders. In the last years, (starting in 2013 from the Schengen governance reform), the European Union has developed an impressive series of initiatives protecting the external borders and has launched an integrated border management which is deemed granting the highest level of security. Many scholars and representatives of institutions such as the European Data Protection Controller, have considered the requests for further internal and external border checks disproportionate face to the alleged threats.

The same security-focused strategy has also been at stake to limit the right to asylum and even to limit the EU management of migratory flows as well as the visa policy. Also limited have been the EU initiatives to promote the integration of migrants in national societies and labor markets or to facilitate access for regular migrants.

Speakers: Giuseppe Cataldi, Steve Peers, Mario Savino

 12,30 Buffet

 3rd Round table: the internal (and external) security area

The EU has developed since 9/11 its Internal Security agenda and this process has even intensified during the last ten years with a particular focus on preventing terrorism. Unfortunately most of these EU measures have been adopted without a proper prior and post impact assessment so that it is very hard to judge their effectiveness or even revise their scope. The lack of information from the Member States hinders the democratic control, especially at the European level, as it has been proved by a recent EP resolution.

To counter this the EU is developing interoperability between European and national databases even if these databases were originally designed for other purposes (e.g. EURODAC, VIS). Last but not least using the external security legal framework (which is not binding and lacks parliamentary control) for internal security policies makes everything more complex and less transparent.

Speakers: Tony Bunyan, Luisa Marin, Marc Rotenberg

 4th Round table: the European judicial area

The European judicial area has developed considerably in the civil field but has remained incomplete in the criminal field. The principle of mutual recognition of measures taken at national level has undergone several setbacks with the weakening of mutual trust between Member States and in the presence of highly differentiated national contexts in a supranational area where some Countries are particularly affected by organized crime and others which are practically immune). The “Lisbonisation” of EUROJUST and the creation of the European Public Prosecutor’s Office are good steps in the right direction but synergies between police and judicial cooperation at EU level are still incomplete and there is no currently an EU Strategy for strengthening the criminal justice area.

Speakers: Luca de Matteis, Lorenzo Salazar, Andrea Venegoni

 Chair: Emilio De Capitani

 Working language: Italian, English

[i] From the EU Charter of Fundamental rights preamble.

 

Organizational secretary: Fondazione Lelio e Lisli Basso.  Via della Dogana Vecchia, 5 – Roma Tel. 06 6879953 – basso@fondazionebasso.it

Asylum Legislative Package: State of Play (according to the Council of the European Union)

Council Presidency Progress report  Reform of the Common European Asylum System and Resettlement  (Source : Council Document n. 12802/17)

NOTA BENE : Emphasis and links to the Procedural files on the EP Legislative Observatory have been added)

I INTRODUCTION

On 4 May and 13 July 2016, the Commission submitted seven legislative proposals aimed at reforming the Common European Asylum System. This package included the recast of the Dublin Regulation and of the Eurodac Regulation, a proposal for a Regulation on the establishment of the European Union Agency for Asylum (EUAA), a proposal for a Regulation establishing a common procedure in the EU, a proposal for a Qualification Regulation, the recast of the Reception Conditions Directive and a proposal for a Regulation establishing a Union Resettlement Framework.

The Estonian Presidency has taken forward the examination of the above-mentioned proposals, initiated by the Netherlands Presidency and continued by the Slovak and Maltese Presidencies. The current progress report builds on the previous report presented to the Council on 9 June, as set out in document 9781/17.

II DUBLIN REGULATION (COD 2016/0133)

Pursuant to the repeated requests by the European Council on making progress on the EU’s asylum policy and building on the progress made under the Maltese Presidency, the Estonian Presidency has taken forward the discussions with a view to reaching a compromise on the effective application of the principles of solidarity and responsibility. This work has been based on the common understanding of the need to strike the right balance between the principles of responsibility and solidarity and the need to ensure resilience to future crises, as well as on the broad support for a comprehensive approach of which the reform of CEAS is only one aspect.

Building on the elements, which were identified under the Maltese Presidency as the ones, which could attract a good measure of agreement and on those that needed further work, the current Presidency has focused on a number of key specific issues to consolidate the required support.

In the bilateral contacts with delegations, the Presidency has aimed at consolidating the understanding of all the generally stable points and finding as much common ground as possible on issues where the compromise has so far not proved possible.

Based on these contacts, the issue will be further discussed at political level in due course in order to find the right balance that would allow for continuation of the examination of the Commission proposal by the Council preparatory bodies. It has to be stressed that all the aspects of the current reform are interlinked and compromise will be required on all sides in order to establish the required support leading to the reform of the current CEAS.

III.       RECEPTION CONDITIONS DIRECTIVE (COD 2016/0222)

The proposal on the recast of the Reception Conditions Directive was initially examined by the Asylum Working Party and is currently being pursued by the JHA Counsellors. Progress was made on many aspects of the proposal. However, some issues still need to be tackled, in particular the provisions related to the measures aimed at preventing secondary movements, including the assignment of residence, detention and the reduction and withdrawal of material reception conditions, as well as the provisions on the unaccompanied minors.

The Presidency aims at reaching a partial general approach and at starting negotiations with the EP at the earliest opportunity.

IV QUALIFICATION REGULATION (COD 2016/0223)

Under Estonian Presidency, a mandate for negotiations with the European Parliament was obtained in Coreper on 19 July 2017. The provisions containing cross-references to other proposals in the CEAS package and specific provisions, which need further discussion in the Council preparatory bodies, are not included in this mandate and are expected to be agreed at a later stage. Two specific issues (the definitions of family members and a new annex, which would contain the various information to be provided to the beneficiaries of international protection) are also not included in the mandate either. The Presidency intends to discuss further these two issues already in October with the aim of including them in a revised mandate by the end of its term.

The trilogues with the European Parliament have started in September 2017. The first discussions highlighted, among others, the following sensitive issues: approximation of both statuses and length of residence permits, Internal Protection Alternative and its application, status reviews for beneficiaries of refugee and subsidiary protection statuses, the possibility for a beneficiary of international protection to remain on the territory of the Member State for three months after the withdrawal of the status on the basis of cessation (“grace period”). On these aspects, the positions of the Council and of the European Parliament are very different and, therefore, complex negotiations are to be envisaged.

The Presidency’s aim is to advance the discussions with the European Parliament as much as possible towards an agreement by the end of its term.

V PROCEDURES REGULATION (COD 2016/0224)

The Estonian Presidency finalised the first examination of the whole proposal on the Asylum Procedure Regulation, in the beginning of September, and started the discussion of the first draft compromise proposals in the Asylum Working Party in the same month. In June 2017, the European Council gave a clear mandate to the Council to align the Commission´s proposal on the Asylum Procedures Regulation, regarding the safe third country concept, with the effective requirements of the Geneva Convention and the EU primary law. In order to identify the best way to fulfil this mandate, the Presidency held a policy debate on this issue in SCIFA (28 September 2017). As a next step, the Presidency aims to redraft the relevant provisions in the Asylum Procedure Regulation. The Presidency intends to pursue the examination of the compromise proposals and to make as much progress as possible towards a general approach.

VI EURODAC REGULATION (COD 2016/0132)

Following the agreement at Coreper, on 15 June 2017, on an extended mandate for negotiations with the EP and the vote in the LIBE committee, on 30 May 2017, negotiations between the Council and the European Parliament on the recast Eurodac Regulation started in September 2017.

While the positions of both the Council and the EP are rather similar on most provisions of the recast Regulation, access of law enforcement authorities to Eurodac, data retention periods and special provisions relating to minors can be expected to require negotiations that are expected to be more complex. Both co-legislators aim at reaching an agreement on this file before the end of the term of the current Presidency.

As regards the inclusion of data on resettled persons in Eurodac, the Presidency will present drafting proposals to the Council preparatory bodies in order to complete the mandate for negotiations with the European Parliament.

VII.      EUAA REGULATION (COD 2016/0131)

Following the agreement on a partial general approach in Council, on 20 December 2016, the Maltese Presidency started negotiations with the European Parliament in January 2017.

As a result of a series of technical meetings and trilogues, the Maltese Presidency reached an agreement on the enacting terms of the text during the trilogue of 28 June. The Estonian Presidency is currently continuing work at a technical level in order to align the recitals of the text with the main body of the proposal. The issue of references to other proposals in the field of the CEAS that have been placed in square brackets in the Council´s mandate for inter-institutional negotiations still needs to be reflected upon after the end of technical discussions.

VIII.    RESETTLEMENT REGULATION (COD 2016/0225)

JHA Counsellors have pursued the discussion on the Resettlement Framework Regulation and have examined draft compromise proposals at two meetings under the Estonian Presidency (18 September and 3 October).

Progress has already been made on many aspects of the proposal, but there are still some issues that remain open, including the definitions and the scope of “resettlement” and “humanitarian admission” as well as the status given to the persons admitted.

The Presidency is currently working on new compromise proposals in order to make progress in this file at JHA Counsellors level. The Presidency aims to reach a Council´s mandate for starting negotiations with the European Parliament at the earliest opportunity.

CONCLUSION : COREPER and Council are invited to take note of this progress report.

 

OPINION 2/15: MAYBE IT IS TIME FOR THE EU TO CONCLUDE SEPARATE TRADE AND INVESTMENT AGREEMENTS

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG  ON JUNE 20, 2017

By Szilárd Gáspár-Szilágyi

Opinion 2/15 is already causing quite a stir in legal academia. While some take an EU law perspective, others look at it from the perspective of investment law or public international law. In this short post I will not focus on purely legal issues. Instead, I will look at the Opinion’s effects on the EU’s investment policy and propose a change in the Commission’s approach to the negotiation of international economic agreements.

The Current Approach and Its Drawbacks

 The EU is not new to negotiating preferential trade agreements (PTAs). However, negotiating free trade agreements that include investment chapters (FTIAs), resembling bilateral investment treaties (BITs), is a new and challenging experience for the EU. In its relations with Canada, Vietnam, Singapore, the USA, and Japan the EU has chosen an ‘all-in’ approach, seeking the negotiation and conclusion of comprehensive and lengthy trade agreements which are bolstered with extensive provisions on sustainable development, labour standards, the protection of intellectual property rights, and investment protection.

Combining trade and investment under one roof is not a novel phenomenon. In a previous co‑authored paper, Maxim Usynin and I have analyzed over 150 PTAs world-wide and we found that ever since the dawn of NAFTA, countries and REIOs such as Japan, Canada, US, Australia, and ASEAN have included investment chapters in most of their PTAs, while others, such as India, China, CARICOM, Chile and the EU are increasingly doing so. The reasons for this approach can be plentiful: states might want to export their norms, stronger parties might want to impose pre-existing templates on weaker parties, states might want to replace existing international economic agreements, or it might be more cost effective to conclude one set of negotiations, covering a vast array of fields, instead of having a sector-based approach.

Choosing an ‘all-in’ approach is not in itself problematic, provided that the issues and fields discussed in such agreements are not contentious internationally or domestically. Problems do occur, however, when a contentious issue is included in one of these agreements. According to Putnam’ s seminal article, a country entering into international negotiations takes part in a two-level game because it needs to simultaneously satisfy the international partner(s) and domestic constituencies. If a certain issue covered by the negotiations, such as ISDS, is highly contentious domestically, then the negotiation process might become more time and resource consuming or might even end up in a deadlock. If ISDS is not a contentious issue then the domestic ‘win-set’ for both parties is large and mostly overlapping. Thus, it is highly likely that in such a case the contracting parties will agree on the inclusion of ISDS in the PTA and conclude the agreement in a timely and resource efficient fashion. For example, the China-New Zealand FTA (includes ISDS) was negotiated in only 3 years. However, if ISDS is a contentious domestic issue in State A, but not in State B, then the inclusion of ISDS in the agreement is less certain. The negotiation outcomes in this scenario will vary according to how the perception of the contentious issue in State A changes over time and according to whether State B conditions the existence of the agreement on the inclusion of the contentious issue. In this latter case State B might be willing to change its stance if certain concessions are given by the other party. In case the inclusion of ISDS might compromise the conclusion of the trade agreement or might lead to protracted and costly negotiations, states could choose to have a sequential approach to their economic relationship, as observed in late Chilean FTAs. The parties can include ‘anchor’ clauses on future talks or consultations on investment protection (e.g. Chile-Turkey FTA, Article 61).

In case of the EU one can talk about a multi-level game, in which the Commission – as the EU negotiator – needs to ensure that new international economic agreements satisfy the third-state contracting party, on the one hand, as well as the Member States, their constituencies, and the EU level institutions, on the other. Thus far the Commission’s attempt to satisfy all the different levels is not entirely successful. On the international level contracting parties such as Canada and Singapore are clearly frustrated. In the case of Canada, the 2014 version of the treaty text had to be revised so as to include the EU’s new Investment Court System (ICS) and the negotiations ended up taking seven years. Furthermore, the Belgian and possibly the Slovenian governments are about to ask for a CJEU Opinion on the compatibility of CETA’s ISDS mechanism with EU law. Singapore had to wait two years in order for Opinion 2/15 to be handed down and now it faces a renegotiation of the agreement so as to include the ICS. Furthermore, a Japanese official has recently declared that they would favour a classical type of ISDS mechanism in their FTIA with the EU, instead of the ICS. Even more problems will result from including the ICS in the negotiations with more powerful actors, such as China and the USA (currently on hold). Domestically things do not look brighter. Civil society and NGOs have been protesting against including ISDS in EU FTIAs, followed by groups of academics and regional parliaments.

All in all it is fair to conclude that the inclusion of ISDS and investment protection in EU trade agreements is causing enormous headaches for the Commission, it is tarnishing the EU’s image as a reliable treaty partner and it causes domestic discontent. In light of these, some authors have argued for a removal of ISDS from these agreements.

 Proposal: Split the FTIAs into Separate Trade and Investment Agreements 
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Legislative Tracker : the European Travel Information and Authorisation System (ETIAS)

by Beatrice FRAGASSO (Free-Group Trainee)

The European Commission, on 16 November 2016, has put forward a proposal (COM(2016) 731, 16.11.2016, 2016/0357(COD)) establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulation (EU) (EU) 2016/399 (the ‘Schengen Borders Code’), (EU) 2016/794 and (EU) 2016/1624.

This proposal is being negotiated as part of the Smart Border Package and aims to ensure a high level of internal security and free movement of persons in the Schengen area. The Commission didn’t conduct an impact assessment but published a feasibility study on ETIAS, conducted between June and October 2016.

The system designed by the proposal would require also visa-exempt travellers to undergo a risk assessment with respect to security, irregular migration and public health risks prior to their arrival at the Schengen borders. This assessment would be carried out by means of cross- checking applicant’s data submitted through ETIAS system against other EU information systems, a dedicated ETIAS watch list and screening rules. This process will result in granting or denying an automated authorization for entering the EU.

Further information from the European Parliament Research Service are available HERE

The current situation
Currently, both visa-obliged and visa-exempt travelers are subject to border controls when entering the Schengen area. According to Regulation (EU) 2016/399, both categories of travelers need to comply with the conditions for short-term stay, which include not being a threat to public order and security, holding valid travel documents, justifying the purpose and conditions of the intended stay, not being the subject of any alert in the SIS for the purpose of refusing entry, and having sufficient means of subsistence.

For visa holders the compliance with this conditions is assessed at the time on the request for a visa  and relevant data are stored in visa information system (VIS) which can be consulted by law enforcement authorities for the purposes of combatting serious crime and terrorism.

However, no such advance information can be currently obtained for visa-exempt nationals arriving at the Schengen external borders. This means that border guards need to decide on allowing or refusing access to the Schengen area without prior knowledge regarding any security, migration or public-health risks associated with visa exempt travelers.

This is particularly true for visa-exempt travelers arriving by land, as the only source of information about them is their travel document presented at the time of crossing the EU external border.

The situation is different for passengers arriving by air as Council Directive 2004/82/EC obliges carriers to communicate all passenger data, known as ‘advance passenger information’ (API), including name, date of birth, passport number and nationality at the time of the check-in for inbound flights to the EU. Another Directive (EU) 2016/681 on the use of passenger name record data (the ‘PNR Directive’) collect 19 types of personal data already at the time of the flight reservation and obliges airlines to hand over to EU MS authorities their passengers’ data linked with the travel reservation (which includes travel dates, travel itinerary, ticket information, frequent flyer data,  contact details, baggage information, credit card and general remarks stored in the Airline files).

For visa-exempt passengers arriving on foot or by car, bus or train, no such comparable advance information is available prior to their arrival.

The changes the proposal would bring

Schengen Border Checks
Prior to arriving in the Schengen area, all carriers will verify if visa-exempt third-country nationals have a valid ETIAS travel authorization, without which boarding will not be authorized. A valid ETIAS travel authorization, should be obtained in advance of arrival at a Schengen border crossing point, and this will be a precondition for entering the Schengen area. However, border guards at the external Schengen borders will still take the final decision to grant or refuse entry according to the Schengen Borders Code.

Online application
As it is currently the case for visa-exempt travelers to Canada “ETA”,  USA “ESTA”  and Australia “ETA” who have to ask for a travel authorization also travelers wanting enter the Schengen area will have to fill in an online application by providing their biographical and passport data, contact details, information on intended travel, and answers to background questions relating to public health risks, criminal records, presence in war zones and previous refusals of entry or an order to leave the territory of a Member State.

At the same time, an application fee of €5, which will go to the EU budget, will be mandatory for all applicants above the age of 18 before their application can be processed.

Processing of applications
The automated processing will be carried out by the central system, which will be in charge of checking data provided by applicants against security databases, such as the VIS, Europol data, the SIS, Eurodac, the  Interpol SLTD database , the European Criminal Records Information System (ECRIS) and the planned future EU “Entry-Exit” system (currently negotiated between the EP and the Council). Personal Data will also be screened against a ETIAS “watch list” (where people suspected to have committed, or be likely to commit a criminal offence will be listed by the EU MS) and against specific risk indicators (irregular migration, security or public- health risks) which will be defined in consultation with an ETIAS screening board.

In the case of a positive hit after the automatic processing, that personal application will be further assessed manually by operators in the ETIAS central unit and in the national units.
In case no risks has been detected a positive response, in a form of a travel authorisation valid for five years (or until the expiry of the passport) will be delivered. In the case of a refusal, a justification will be given and applicants will have the right to appeal.

Authorisation will be revoked or annulled when the conditions for its issuance are no longer met, particularly when it is believed that it was fraudulently obtained or when a new alert for refusal of entry is created in the SIS.

Etias structure
ETIAS will consist of an information system, a central unit and national units.

The information system will be designed for processing applications and will be interoperable with other security databases that ETIAS will be connected. The new system will be managed by the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice (eu-LISA).

The central unit will be part of Frontex (the European Border and Coast Guard Agency) and will ensure that the data stored in the application files and the data recorded in ETIAS are correct and up to date. Where necessary, it will also verify travel authorisation applications whenever there are doubts regarding the identity of an applicant in cases where the latter’s data produced a match (a ‘hit’) against the stored data during automated processing.
The national units will be responsible for making the risk assessment and deciding on travel authorisation for applications rejected by the automated application process. They will also issue opinions when consulted by other national units, and act as a national access point for requests for access to the ETIAS data for law enforcement purposes related to terrorist and other serious criminal offences.

The role of Europol
Europol will be involved in ETIAS in several ways.
Firstly, Europol’s data related to criminal offences, convictions or potential threats will be compared to those provided by applicants for an ETIAS authorization.
Secondly, Europol will help define ETIAS screening rules by participating in the ETIAS screening board and managing the ETIAS watch list.
Thirdly, Europol will be consulted by the ETIAS national units in case of a match with Europol data during the ETIAS automated processing.
And finally, Europol will be able to consult personal data in the ETIAS central system for the prevention, detection or investigation of terrorist offences or other serious criminal offences (as provided by its mandate).

The Council’s position
In a  document om March 17, 2017 authored  by the Maltese Presidency of the Council of the EU and covering also the other legislative pending measures connected to ETIAS, a number of compromises are suggested: The Presidency identified other key issues that needed to be clarified and decided upon before revised text proposals could be submitted to delegations. The Presidency therefore prepared a discussion paper on which delegations were invited to comment. The issues outlined by the Presidency related to the division of competences between Frontex and the Member States, the definition of ‘responsible Member State’ as regards the decision to grant a travel authorisation, and the duration of a travel authorization […] With respect to the definition of the ‘responsible Member State’, delegations were divided into two groups, one in favour of the Member State of first entry, as proposed by the Commission, while the other stressed the key role played by the Member State at the origin of an alert triggering a “hit”. The following issues are the “object of extensive debates”:

“– the scope of the regulation;
– the ETIAS watchlist and the screening rules;
– the access to the ETIAS data;
– the interoperability of ETIAS with other systems and databases.”

More recently the Council Presidency has also submitted some possible compromise proposals to the other delegations (docs 8579/17 and 8584/17) and it is more than likely that the EP will be under pressure to launch the negotiations for a first reading agreement on this subject.

The European Parliament position (Libe Committee Debate)
On the EP side works are still at an initial phase (SEE OEIL DOSSIER HERE). The LIBE Committee has been informed for the first time by a Commission representative (Belinda Pyke) on 22 March 2017. It has been stressed that the purpose of the proposal is to improve internal security and border management and that policy visa liberalization is essential in the system. This proposal will contribute to the security of the Schengen area because as any risks will be identified prior to departure. Due to the political pressure of the European Council and the  very tight deadlines the Commission did not have the time to conduct an impact assessment although it would have been desirable; however, the Commission published a detailed study on the subject. The Commission representative made reference to the comparable systems in  Australia, Canada and USA and declared that the ETIAS system will take stock of the experience of these countries by overcoming their weaknesses and mirroring the strengths of these systems.
Firstly, request authorization will be easy and cheap. Applicants will receive rapidly (within 12 hours) a positive feedback and those without authorization will save travel costs. The ETIAS system provides an automatic control: such control will allow to verify that the criminal record is clean. These checks will take place on the basis of SIS, Interpol, ECRIS, Eurodac.
The ETIAS central unit will compare the data in the database and the identity of the applicant and the rest of the operations will be managed by the national units.
The decision of the unit will be delivered within 72 hours, unless it will be necessary to gather special information (in this case it will be possible an extension to a two-week maximum).
ETIAS will be financially self-sustaining, thanks to the tax that will be paid by applicants. It is estimated that the costs for developing it will amount to €212.1 million, while the average annual operations costs, to be covered by the revenue from fees, will be €85 million.
The data will be protected from abuse and the information may be given to law enforcement only in the case of very serious crimes (this possibility also exist for Eurodac).

The EP rapporteur Kinga Gal (PPE – Hungary) was not present at the debate, but a colleague read her statement. The rapporteur argues that the text is of great importance and it will cover three categories of passengers
1) European Citizens or persons enjoying the right of free movement under Union law
2) Third-country nationals under visa obligation
3) Third-country nationals without visa obligation
From now until 2020 the countries without visa obligation will increase. For third-country nationals without visa obligation it’s difficult to gather information; it’s therefore necessary to create an information system well established in legal terms, so as not to put excessive burdens for Member States.

The debate that followed, however, showed controversial elements in the proposal, criticized by MEPs.
Firstly, almost all the MEPs who spoke remarked the necessity of an impact assessment, finding it unacceptable yet another lack of it. An issue of such importance can not be studied without taking into account an impact assessment: the urgency can not justify such a lack.

Birgit Sippel (S&D – Germany), for instance, affirmed that she’s tired to listen to the Commission affirming that it’s necessary to adopt better legislation and that impact assessments are not conducted anymore because of urgency. EU needs to regulate well, not in a hurry: this rush to legislate, then, does not make sense if the execution by the Member States is so slow. She also remarked that one of the problems in this proposal is that the form requires a bit of everything and there is the risk that if an applicant forgets a small offense did at 15 years old he cannot enter.

The shadow rapporteur Gérard Deprez (ALDE – Belgium) wondered what professional criteria will be provided for ETIAS units and how it will be possible to apply Article 7 of the Schengen Code, because compulsory systematic checks for everybody (as provided in that Article) would have a significant impact on traffic at the border. Deprez considered that the term of 72 hours is reasonable whereas he considers excessive the term of validity of five years, because in the course of five years many things can change in a person’s life. Also foreign experiences in fact suggest different solutions: in US visa is valid for one year and in Australia for two years. Also with regard to rates, Deprez is at odds with the proposal: 5 euro is a low price if compared to the prices of US (14 euro) and Australia (20 euro). According to Deprez, then, in the request the applicant should indicate the member state where he would like to go. The proposal, in addiction, should define a better balancing of criminal convictions. For example, prison sentences of less than one year should not be an obstacle to the granting of authorization.

It may also emerge a serious problem for air traffic. It is estimated that for a plane carrying 300 people controls may last from four hours and a half to seven hours and a half. The controls are certainly a necessary corollary for visa liberalization, but the parliament should find more efficient solutions.

On behalf of DG HOME of the European Commission Mrs Belinda Pike replied that the validity of five years would be reasonable. Of course it is noted that in the case in which the person commits an offense such information is immediately acquired in the system. Contrary to what Deprez stated, then, the cost is not too low, but it’s instead sufficient to ensure the smart management of borders. It is a fee that will cover the costs and ensures a small gain. In the US half of the fee (therefore, 7 euros) is invested in the tourism sector. Do not pay anything on the other hand would be a huge burden on the EU budget.

Belinda Pike finally stressed that the screening does not immediately lead to the rejection of the request, but simply involves manual handling of the request.

Marie – Christine Vergiat (GUE/NGL – France) and Bodil Valero (Greens/EFA – Sweden) highlighted that visas are returned, albeit with a different name (authorization). According to Marie – Christine Vergiat, then, this proposal does not promote cooperation between member states, it is repressive and attacks the fundamental rights, like others in this area of “smart” borders. Security and immigration are matters to be addressed in different texts, because adhere to different problems. The fact that some people should be identified through a profiling system also raises an ethical problem.

Bodil Valero remarked the privacy-issue. People will also provide information on education and health and Greens/Efa group would like to receive explanations about what is the reason for these provisions: perhaps the Commission’s intention is to gather information that cannot be collected in other ways. Furthermore, the 5-year period envisaged for data stocking is too long. She underlined that also the EDPS (European Data Protection Supervisor) has taken a fairly critical position on some of the elements of the proposal.
In his opinion, in fact, the EDPS states, among other things, that the establishment of ETIAS would have a significant impact on the right to the protection of personal data, since various kinds of data, collected initially for very different purposes, will become accessible to a broader range of public authorities (i.e. immigration authorities, border guards, law enforcement authorities, etc). For this reason, the EDPS considers that there is a need for conducting an assessment of the impact that the Proposal will entail on the right to privacy and the right to data protection enshrined in the Charter of Fundamental Rights of the EU, which will take stock of all existing EU-level measures for migration and security objectives.

Last but not least, during a TRAN (transport and tourism) committee on Wednesday 22 March, different speakers representing the tourist sector expressed concerns about the costs generated by the ETIAS in the tourism sector. However, the TRAN Committee decided not to give an opinion to LIBE.

NEXT STEPS

As soon as the two co-legislators will have defined their position a trilogue  could be launched which can bring to an agreement on first reading. As things currently stay an agreement will probably go hand in hand with the other “ENTRY/EXIT” legislative proposal.

 

Parliamentary Tracker : Rule of law in Hungary (LIBE hearing on February 27,2017)

by Luigi LIMONE (FREE Group Trainee)

This BLOG has already published or reblogged  several posts on the worrying situation of fundamental rights and rule of law principle in Hungary. The most recent tense debate of the European Parliament on this issue took place in the presence of Hungarian Prime Minister Viktor ORBAN in Strasbourg on April 27. It has been widely relayed by the press (See the video stream here ) and rumors on the possible expulsion of the Fidesz party from the EPP political family have not been confirmed by the facts.

However also the LIBE committee which is in charge of protection of fundamental rights and values follows closely since several years the situation in Hungary and its last hearing on the subject took place on February 27,2017. (see below)

 

Hearing on “The situation of fundamental rights in Hungary”      (27 February 2017)

In June 2016, Hungary’s President János Áder signed into law a package of draconian counter-terrorism measures, including a “sixth amendment” to the Constitution and amendments to laws governing the police, national security services and defence forces. The aim was to streamline the process to declare a state of emergency.

The package entered into force on 1 July 2016. Its measures rely on an extremely vague concept, a “terror threat situation”. This “terror threat situation” gives the executive wide-ranging powers that risk violating Hungary’s international human rights obligations. Such a  vague definition violates the principle of legality, according to which the law is to be formulated in clear and unambiguous terms.

The police, other law enforcement officers and the military are permitted to use lethal force in a “terror threat situation”. In addition, the “sixth amendment” provides for wide scope for sweeping restrictions on the rights to freedom association and peaceful assembly, privacy and freedom of movement.

Hungarian authorities have been particularly aggressive in their attempts to draw a link between refugees and the threat of terrorism. Since 2015, the Hungarian government has taken concrete steps toward keeping refugees out of the country and it has invoked a “crisis situation due to mass immigration”, a distinct state of emergency empowering the police and military forces to “assist” the asylum authorities.

At the same time, amendments to the Criminal Code have led to the criminalization of refugees and migrants who entered Hungary irregularly through its southern border fence, instituting a wide rage of sanctions, including prison sentences and mandatory expulsion.

Eleven people have been convicted for illegal crossing of the border fence aggravated by alleged participation in mass riot. They were part of a larger group of refugees and migrants stranded at the border between Serbia and Hungary on 16 September 2015, the day after Hungary moved to completely close its southern border. All of them, including a blind elderly Syrian woman and a wheelchair-bound Syrian man living with a disability, were alleged to have participated in a mass riot in their attempt to enter the country unlawfully.

In November 2016, one of the eleven, Ahmed H. from Syria, was convicted for committing “acts of terror” and was sentenced to ten years in prison and final expulsion from Hungary. He was found guilty of using a megaphone to request that the police communicate with the refugees and migrants at the border and of throwing objects at them.

According to the government’s chief spokesman, Zoltán Kovács. Hungary will submit proposals to the EU to protect Europe’s borders by automatically detaining any asylum seeker for the whole period of their asylum application. At a briefing in London, Kovács said that anyone seeking asylum through Hungary would be kept in “shelters” for the whole period of their application, even though they would be free to go back to their own country at any point.

As regards the right to privacy, the Hungarian system of surveillance employed by the Anti-Terrorism Taskforce was found contrary to European human rights law by the European Court of Human Rights (see Szabo and Vissy v. Hungary). The taskforce had been given broad surveillance powers, including opening correspondence and reading electronic communications. The Minister of Justice can order such surveillance on any individual on the basis of national security, without prior judicial authorization and without requiring the taskforce to produce any evidence to support its request. The Court concluded that the Hungarian law endowing the Anti-Terrorism Taskforce with these surveillance powers violated the right to privacy, as there were insufficient legal safeguards to ensure protection against abuse.

Faced with this complex situation, on 16 November 2016 the LIBE Committee decided to set up a hearing to present a comprehensive picture on the situation of fundamental rights in Hungary.  The hearing took place on 27 February 2017.

Following the opening remarks by Claude Moraes, Chair of the LIBE Committee, László Trócsányi, Minister of Justice of Hungary, took the floor. He clarified that the Hungarian government had always been open to dialogue and that Europe was facing a phase of deep  uncertainty intensified by the Brexit, the terrorist threat and the migration crisis.

In his opinion, the migration crisis is one of the most serious challenges Hungary is facing, since the country is placed at the external border of the EU. He said that Hungary was taking huge responsibilities to protect the EU borders in an efficient manner. According to him, all the EU institutions and Member States have to put themselves the same goals for an effective protection of the Schengen system. In order to overcome the migration crisis, the EU needs to  fight against irregular immigration as well as migrant trafficking, stop the tendency to mix up economic migrants and refugees and identify safe countries, as in the case of Turkey.

Miklós Szánthó, Director of the Centre for Fundamental Rights, a pro-government NGO,  dealt with the situation of democracy in Hungary and in the EU. He said that democracy, including fundamental rights and the rule of law, still existed in Hungary and that was proven by the existence of a Constitution as well as legal and transparent procedures. In his opinion, there exists no comprehensive definition of democracy within the EU, apart from two   elements which have been affirmed as fundamental marks of democracy, namely free elections and equal division of powers. He said that those elements were concretely realised in Hungary and that the EU, as provided by art. 4(2) TUE, should respect the way in which each Member State interpreted democracy and its values in compliance with its own perception of sovereignty. According to him, only Member States are entitled to frame their own legal framework relating to the protection of democratic values and fundamental rights and the EU should not impose supranational visions on national authorities.

According to Todor Gardos, Researcher at Amnesty International, the European Parliament should continue to put pressure on the Council and ask for clarifications about the situation in Hungary, since a number of serious threats to fundamental rights have been reported in the country over the last few years, such as uncontrolled use of imprisonment, weakness of the judiciary, restrictions on asylum and refugee rights, lack of protection for religious and ethnic minorities. For him, the most urgent threat is linked to the exceptional measures adopted by the government since 2015 with the aim of pushing refugees and migrants back at the Hungarian border with Serbia. Such measures could have extremely negative impact for vulnerable categories and children, which are massively sent to Serbia.

Gardos said that Amnesty International was extremely worried about the situation in Hungary, where refugees and migrants are more and more associated to criminals and terrorists. He mentioned, in particular, the story of Ahmed H, a Syrian national, living in Cyprus, who went to the border fence between Hungary and Serbia to help his parents enter into Europe to find international protection. Ahmed H. was arrested by the Hungarian police. He was accused of committing an act of terrorism, even though some videos have shown that he was just using his megaphone to talk with the Hungarian authorities and invite them to open the border. Hungarian criminal law is becoming increasingly stricter. The government is targeting Hungarian nationals nationals as well, on the pretext of controlling threats to national security and preventing terrorism.

In conclusion, Gardos said that Amnesty International was calling on the European Parliament   to continue to supervise the situation of fundamental rights in Hungary and, if necessary, ask for a visit to Hungary, in order to put pressure on the Hungarian criminal law system, with regard to trial transparency in particular.

Stefánia Kapronczay, Executive Director of the Hungarian Civil Liberties Union, touched on two basic issues concerning fundamental rights in Hungary:

  1. a) freedom of expression. She said that the Hungarian government was increasingly restricting the national media market and limiting freedom of expression for civil society and NGOs with censorship and sanctions. For instance, several journalists were denied access to refugee camps during the crisis in 2015;
  2. b) the situation of active citizenship in Hungary. She reported several cases of silenced criticism, defamation against journalists as well as civil society activists and stigmatisation of civil organisations. She also said that the government was exercising strict surveillance over active citizenship and civil participation, with regard to NGO foreign funding in particular.

For Marta Pardavi, Co-Chair of the Hungarian Helsinki Committee, the most serious issue in Hungary right now is the respect for refugee human rights. She noted that Hungary was performing massive returns of migrants to Serbia, on the assumption that the latter was a safe country of origin or transit, and that in 2016 the government had decided to adopt further measures to deter migrants by closing access to protection. As a consequence, asylum seekers and migrants are now stranded in Serbia under inhuman and degrading conditions, since the situation in Serbia is becoming increasingly difficult due to overpopulation of refugee camps. She raised serious concerns over the abuses on migrants by the Hungarian authorities at the border with Serbia. Such abuses have been criticized by Frontex as well, but the Hungarian government has always refused to go into deep examination of what is happening at its border.

Conclusions

Whereas it is true that the Hungarian government has been elected under democratic principles and it should, therefore, be recognised as legitimate, a democratic society should always respect pluralism, human rights, freedom of expression and the rule of law.

Like in Poland, a deterioration of the rule of law has been reported within the Hungarian society. The amendments to the Constitution and the new measures adopted by the Hungarian government since 2010 have had an adverse impact on human rights across sectors and have negatively affected the separation of powers, an essential element of democracy and the rule of law. All counter-powers, from the judiciary and the legislative power to media and civil society have been systematically weakened or brought under control of the executive. Most laws are pushed through via fast-track procedures, which bypass democratic rules and limit parliamentary and public debate and stakeholder participation.

The amendments to the Constitution have been introduced to create a favourable framework for the adoption of new measures which risk violating fundamental rights, especially for refugees. The alleged connection between migration and terrorism has led to new discussions concerning the adoption of a new law on detention. For many years, Hungary has been notorious for applying asylum detention very frequently. Actually, since 2015 detention has become the rule and detention measures were justified on the pretext of fighting terrorism and preventing threats to national security.

The Hungarian government has the duty to protect human rights during border control measures and provide access to effective procedures. The adoption of a new law on detention would undermine refugee and migrant human rights and should, therefore, be avoided.  Detention of asylum seekers should be a measure of last resort based on proportionality and  deprivation of liberty should always be accompanied by adequate safeguards, such as individual examination, access to legal aid and the right to an effective remedy.

 

 

 

 

Parliamentary Tracker: LIBE Security Dialogue with Interior Minsters of Germany and France (27/03/17)

by Luigi LIMONE (FREE-Group Trainee)

NB : Video link of the LIBE Security Dialogue with Thomas De Maizière (Federal Minister of the Interior of Germany) and Matthias Fekl (Minister of the Interior of France) – Exchange of views

As part of the security dialogue between France and Germany, a letter from the Federal Minister of the Interior of Germany and the Minister of the Interior of France concerning enhanced collective security in Europe was sent on 20 February 2017. The two ministers were invited to present the main points of their security dialogue before the LIBE committee.

Firstly, Matthias Fekl talked about the current perspectives on counter-terrorism in Europe. According to him, Europe is facing extremely high threat levels and therefore there is a lot to do in the field of security and prevention. The EU needs to work quickly and effectively, in order to combat terrorism and protect its citizens and their civil liberties. To do so, Member States should make use of the new counter-terrorism regulation which has recently been adopted and which constitutes a very important legal instrument. Among the long-term objectives in this area, Fekl mentioned the protection of EU external borders as the priority. In his opinion, new measures should be adopted to reinforce external border controls, such as a correct implementation of the PNR directive, the strengthening of the Schengen Information System (SIS) and the application of the fire-arms directive.

Thomas De Maizière then talked about the importance of interoperability, which is about   interlinks between the different systems. According to him, the principle of interoperability is fundamental for a good interconnection between information systems. Specifically, Eurodac and the Schengen Information System (SIS) should be considered as two complementary databases, the former collecting fingerprints but no names and the latter collecting names but not fingerprints. For De Maizière, interoperability is a central element of the EU security policy and there is today a need for a smart system for access to data as well as a rapid information exchange. He recalled, however, that data protection provisions should be respected in any case.

On interoperability, Matthias Fekl stated that every law enforcement officers should have real and direct access to information, in order to easily identify possible threats. For him, it is necessary to reinforce entry/exit controls at external borders, including on EU citizens. To do so, the EU should find a right balance between interoperability and protection of personal data. According to him one thing does not necessarily exclude the other.

Thomas De Maizière then dealt with the entry/exit system, which is expected to be put into place by the middle of the current year. For him, the entry/exit system is a prerogative for the existence of an area of free movement inside Europe. The EU must therefore reinforce its controls at the external borders. To do so, Member States have to make use of the information and data collection instruments which have already been put into place.

Matthias Fekl introduced the last element of the discussion, namely cryptic electronic device cooperation. According to him, one of the problems the EU is facing in this domain concerns the lack of cooperation on data exchange and information release by several electronic device operators. To close this gap, electronic device operators should be subjected to equal requirements concerning information transfer, while ensuring the full respect of individual freedom and personal data at the same time.

Thomas De Maizière concluded on telecommunications and media, by stating that the EU had already tried to adapt its legal framework to modern technologies, such as smartphones  and internet devices. According to him, it is however necessary to move from a legislation based on the type of technology (each technology has its own regulation) to a legislation focusing on different forms of surveillance and control on the information sources accessed by such devices.

Debate with MEPs:

For Roberta Metsola (EPP – Malta), it is not true that the only solution in order to reinforce internal security is the strengthening of EU external border controls, since there are some elements which refer to the internal security level. She also raised some concerns about the EU-US data protection agreement.

According to Birgit Sippel (S&D – Germany), there are some basic prerogatives upon which Member States must agree before, in order for interoperability to work in the right direction. Moreover, harmonisation is needed when it comes to definitions of what terrorism, terrorist threat and suspect of terrorism are.

Helga Stevens (ECR – Belgium) agreed with the necessity to find a balance between information exchange and privacy protection. She also highlighted the urgent need to fight against terrorist organisations and she made the example of Belgium, where, according to her, thousands of jihadist organisations are hiding in Molenbeek and they must be fought against.

Sophia In ‘t Veld (ALDE – Netherlands) said that she was quite worried about the implementation of new proposals concerning security, since the proposals previously adopted by the EU had not been implemented correctly by Member States. According to her, some  Member States are basically not interested in applying existing legislation and this creates a gap in the EU security system. In her opinion, a better definition of what terrorism is would be necessary and the EU should strike the right balance between security measures and safeguards for citizens when it comes to privacy and data protection.

According to Cornelia Ernst (GUE/NGL – Germany), it is necessary to look at the data which is already available and to think about how law enforcement forces from different Member States communicate with each other. For her, the main problem relates to the lack of communication and the existence of huge gaps in information exchange between law enforcement authorities across countries.

Ska Keller (Greens/EFA – Germany) asked for more precise figures on relocation from Greece and Italy and asked how France and Germany intend to work for speeding up the relocation process. She also told to be worried about Germany and France sending migrants back to Greece.

According to Christine Revault d’Allonnes-Bonnefoy (S&D – France), it is necessary to work on harmonisation of training activities for border and coast guards, police as well as security officials across Europe.

Cecilia Wikström (ALDE – Sweden) highlighted the importance not to mix asylum seekers and migration policy with terrorism. She said, however, that reducing the burden on frontline states caused by migration flows could lead to better security cooperation.

For Gérard Deprez (ALDE – Belgium), it is fundamental to ensure that any alarm triggered by the system is transferred immediately to the European Police Office (Europol).

For Michal Boni (EPP – Poland), when it comes to interoperability it is necessary to consider the new technical architecture for sending information in the real time. For him,  telecommunication obligations and e-privacy measures are interconnected and they have to be based on a balance between the respect for fundamental rights and the need for greater security.

According to Ana Gomes (S&D – Portugal), the reinforcement of external borders is not the right solution since recent terrorist attacks have shown that the problem comes from the inside, from home-grown terrorists. In her opinion, it is crucial to prevent radicalisation and promote de-radicalisation especially in European prisons. Another solution would be the promotion of safe and legal pathways for migrants, because in this way they would not be obliged to enter into contact with smugglers and criminal organisations to come into Europe.

For Barbara Spinelli (GUE/NGL – Italy), blocking migration flows is not the appropriate measure to reinforce security. Most of the problems affecting the EU security system concern  weak data exchange and limited transfer of information.

For Marek Jurek (ECR – Poland), in order to reinforce internal security it is necessary to exercise a strict control on smuggling activities, which he considers a real industry for illegal migration and criminals.