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

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

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National security and secret evidence in legislation and before the courts: exploring the challenges

FULL STUDY DOWNLOADABLE HERE
Visit the European Parliament’s Studies website:

EXECUTIVE SUMMARY
This Study examines the way in which justice systems across a selection of EU Member States use and rely on intelligence information that is kept secret and not disclosed to the defendants and judicial authorities in the name of national security.
It analyses the laws and practices in place from the perspective of their multifaceted impact on the EU Charter of Fundamental Rights (in particular its provisions related to the rights of the defence and freedom of information and expression), as well as on wider ‘rule of law’ principles. The analysis is based on a comparative study of the legal regimes, interpretations by domestic and European tribunals as well as key developments and contemporary practices concerning the use of intelligence information as ‘evidence’ and the classification of information as ‘state secrets’ during trials in the name of ‘national security’ in the following seven EU Member States (EUMS): the United Kingdom, France, Germany, Spain, Italy, the Netherlands and Sweden.

The examination has highlighted a number of key research findings.

It first shows a wide variety of national legal systems and judicial practices embedded in domestic historical, political and constitutional trajectories characterising each Member State jurisdiction (see Section 1 of the Study and Annex 5 with detailed Country Fiches).
The United Kingdom and the Netherlands are the only two Member States examined with official legislation allowing for the formal use of classified intelligence information in judicial proceedings. The United Kingdom constitutes an ‘exception’ in the broader EU landscape due to the existence of the much-contested ‘Closed Material Procedures’ (CMPs) – secret court hearings where only the judge and security-cleared special advocates are given access to sensitive intelligence material. The Netherlands operates a system of ‘shielded witnesses’ in courts, allowing intelligence officials to be heard before a special examining magistrate (Sections 1.1. and 1.2 of this Study). Other EUMS analysed (Germany, Spain and Sweden) present indirect judicial practices in which certain evidence may be hidden from a party during trials under a number of conditions (Section 1.3).

Nevertheless, the Study demonstrates that secret evidence is not always legal evidence. In countries such as Germany, Italy or Spain the rights of the defence and the right to a fair trial cannot be ‘balanced’ against national security or state interests as this would directly contravene their respective constitutional frameworks (Section 1.4).

Yet, all EUMS under examination face a number of challenges as regards the difficult and often controversial declassification or disclosure of intelligence materials, which too often lacks proper independent judicial oversight and allows for a disproportionate margin of appreciation by state authorities (Section 1.5 of this Study).

Another issue resulting from the comparative investigation relates to the fuzziness and legal uncertainties inherent to the very term ‘national security’ (as evidenced in Section 1.6 and Annex 3).
While this notion is quite regularly part of political and legal debates in EU and national arenas, the Study reveals that a proper definition of what national security actually means is lacking across a majority of EUMS under investigation.
The few definitional features that appear in EUMS’ legal regimes and doctrinal practices fail to meet legal certainty and ‘rule of law’ standards, such as the “in accordance with the law” test (see below). This too often leads to a disproportionate degree of appreciation for the executive and over-protection from independent judicial oversight, which is further exacerbated in a context where some EUMS have bilateral systems of mutual respect of state secrets with third countries such as the US.
Moreover, the disparities and heterogeneous legal protection regimes among EUMS also mean that EU citizens who are suspects in judicial procedures are protected differently or to divergent degrees across the EU. There are variable ‘areas of justice’ in the EU when it comes to the rights of defence of suspects in cases dealing with national security and state secrets. This diversity is at odds with the ambition of developing a common AFSJ and achieving non discrimination between EU nationals when it comes to the delivery of fundamental rights.

A second key finding of the Study relates to a growing transnational exchange of intelligence and use of these intelligence materials before courts (as developed in Section 2 and Annex 1 of this Study).

The 2013 Snowden revelations provide the general context within which EUMS’ regimes and practices need to be analysed. There has been a growing expansion of intelligence cooperation across the world, which is mainly transatlantic and asymmetrical in nature due to the more prominent role played by the US.
This has strengthened the view that transnational threats require a more extensive sharing of raw data on individuals collected by internet or mobile devices. This trend poses a number of dilemmas from the perspective of judicial accountably and the rule of law (Section 2.1 of this Study). One relates to the difficulties in assessing the quality, lawfulness and accuracy of the information, and the extent to which this very information can be considered ‘evidence’ in trials (Section 2.2). The current reliance on intelligence information is, moreover, problematic in light of insufficient or deferential judicial oversight of executive decisions taken ‘in the name of national security’.
This is particularly also the case in respect of the ways in which the use of state secrets can disrupt government officials’ accountability in cases of alleged ‘wrongdoing’ (Section 2.3).

A third finding concerns an emerging set of European judicial standards from the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) on issues related to intelligence information, national security and state secrets, in particular when these affect the rights of the defence (refer to Section 3, Annex 1 and Annex 2 of this Study).

One of the most important legal standards when assessing national security and intelligence information is the “in accordance with the law” principle. Continue reading “National security and secret evidence in legislation and before the courts: exploring the challenges”

Presumption of Innocence and the Right to be Present at Trial: the Meijers Committee’s (*) position

Original published HERE

The Meijers Committee has taken note of the General Approach adopted by the Council on the Proposal for a directive of the European Parliament and of the Council on strengthening certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings (dated 4 December 2014, Council Doc. 16531/14). The Meijers Committee emphasises the great importance of the presumption of innocence and related rights in criminal proceedings to suspected and accused persons. Following the extensive revisions in the Council preparatory bodies and the General Approach ultimately adopted, the Meijers Committee invites the Parliament and the Council to take the following remarks and suggestions into consideration.

Subsidiarity of the proposal

A number of Member States have expressed doubt as to the added value of the current proposal. Together with the Dutch Advisory Council on International Affairs, the Meijers Committee is of the opinion that harmonizing procedural rights is most desirable in light of previously agreed European cooperation in criminal matters.(1) This ensures the legal protection of individuals throughout the Union. The Meijers Committee notes that although guarantees as to the presumption of innocence and the right to be present at trial are of an adequate standard in many Member States, harmonization will enhance the mutual trust which mutual recognition presupposes.

Material scope: not only criminal law

The proposal limits the scope of application of this directive to criminal proceedings only. Administrative proceedings, including administrative proceedings that can lead to sanctions, such as proceedings relating to competition, trade, financial services, or tax, including tax surcharge, and investigations by administrative authorities in relation to such proceedings, as well as civil proceedings, are not covered by this Directive (recital 6).

The Meijers Committee finds this general exclusion of administrative law from the scope of application of this directive to be unjustified. The Meijers Committee recalls the long line of case-law of the European Court of Human Rights, which establishes that the application of administrative law can be (extremely) punitive in nature (e.g. fines in tax law), and hence fall within the scope of Article 6 ECHR concerning a fair trial.(2) Many branches of law, such as those mentioned in the recital above and social security and agricultural law, are upheld by administrative law and its administrative sanction system, not by the criminal law. Although the sanctioning system is a national choice, the Meijers Committee sees no justification for allowing the Member States to choose whether or not a European human right standard, such as the “presumptio innocentiae”, should apply when the sanction is punitive in nature. The Meijers Committee recommends that Article 2 be expanded to cover all administrative proceedings and investigations that can lead to sanctions. Continue reading “Presumption of Innocence and the Right to be Present at Trial: the Meijers Committee’s (*) position”

Statewatch Analysis: The Proposed Data Protection Regulation: What has the Council agreed so far?

By Steve Peers, Professor of Law, University of Essex
Twitter: @StevePeers 8 December 2014

Introduction

Back in January 2012, the Commission proposed a new data protection Regulation that would replace the EU’s existing Directive on the subject. It also proposed a new Directive on data protection in the sphere of law enforcement, which would replace the current ‘Framework Decision’ on that subject.
Nearly three years later, there has been some gradual progress on discussing these proposals. The European Parliament (which has joint decision-making power on both proposals) adopted its positions back in the spring. For its part, the EU Council (which consists of Member States’ justice ministers) has been adopting its position on the proposed Regulation in several pieces. It has not yet adopted even part of its position on the proposed Directive.
For the benefit of those interested in the details of these developments, the following analysis presents a consolidated text of the three pieces of the proposed Regulation which the Council has agreed to date, including the parts of the preamble which have already been agreed. I have left intact the footnotes appearing in the agreed texts, which set out Member States’ comments.
The underline, italics and bold text indicate changes from the Commission proposal. I have added a short summary of the subject-matter of the Chapters and Articles in the main text which have not yet been agreed by the Council.
For detailed analyses of some parts of the texts agreed so far, see the links to the two blog posts.
The Council might always change its current position at a later point, and of course the final text of the new legislation will also depend on negotiations between the Council and the European Parliament.

Background documents :‘Public sector’ provisions, agreed by Dec. 2014 JHA Council:
Chapter IV, agreed by Oct. 2014 JHA Council: Rules on territorial scope, agreed by June 2014 JHA Council: Proposal from Commission:Position of European Parliament: Analysis of agreed territorial scope rules: Analysis of agreed ‘privacy seals’ rules:

SEE THE FULL CONSOLIDATED TEXT ANALYSIS (85 pages) HERE

Unaccompanied minors: the Meijers Committee criticizes the Council Presidency amendments to the Dublin III Regulation

ORIGINAL PUBLISHED HERE

The Meijers Committee (*) is of the opinion that the judgment in case C-646/11 on the position of unaccompanied minors should be implemented fully. This would be in conformity with both the political agreement reached by the co-legislators upon the adoption of the Dublin III regulation and the requirements of the Charter of Fundamental Rights. Accordingly, the original Commission proposal should be adopted, without the changes made in the Council Presidency compromise text. In addition, the Meijers Committee believes that it is in the best interest of the child to extend these provisions to unaccompanied minors who do not lodge an application for international protection. Finally, the Meijers Committee suggests that effective remedies should also be ensured against decisions not to transfer an asylum applicant.

Introduction

The Meijers Committee has taken note of the proposal1 of the European Commission of 26 June 2014 to amend Regulation 604/2013 (the Dublin III Regulation) and the changes made to this proposal in the Presidency compromise text of 20 November 2014.2

The proposal seeks to revise Article 8(4) of the Regulation in the light of the judgment of the Court of Justice of the European Union in case C648/11 MA and Others vs. Secretary of State for the Home Department. In this judgment the Court of Justice ruled that ‘where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the Member State responsible’.

Article 8(4a) of the proposal reflects this judgment. However, Articles 8(4b and c) of the Presidency compromise text of 20 November 2014 state that, by way of derogation from Article 8(4a), the Member State which has already taken a decision at first instance on the basis of an adequate and complete examination of its substance is responsible under the Dublin Regulation. This does not conform with the judgment in Case C-648/11.

The proposal also addresses the situation of unaccompanied minor asylum applicants who are present in the territory of a Member State and who do not lodge an application there. Such a situation was not covered by the judgment in case C-648/11. Article 8(4b) of the proposal provides that in that case the unaccompanied child should be transferred to the Member State where he has lodged his or her most recent application, unless this is not in his best interest. The Meijers Committee welcomes the fact that the proposal ‘takes highest account of the Court of Justice’s ruling in case C-648/11’. However, the Committee also wishes to put forward several comments, in particular with regard to Articles 8(4b and c) of the compromise text and Article 8(4d) of the proposal.

A full implementation of the judgment in Case C-648/11

Case C-648/11 concerned the interpretation of Article 6 of Regulation 343/2003 (the Dublin II Regulation). Some Governments contend that this judgment therefore does not require the Union legislator to bring the Dublin III Regulation into conformity with the Court’s judgment. In fact, the Dutch Government put forward the counterargument that such a rule promotes asylum shopping.3 It therefore argues that the rules for transferring asylum seekers pursuant to the Dublin III Regulation should be the same for children and adults alike.4

The Meijers Committee is of the opinion that the Union Legislator cannot but implement the judgment in case C-648/11. It is true that the Court of Justice in case C-648/11 pertained to the old Dublin II regulation. However, the Meijers Committee recalls that upon adoption of the final text of the Dublin III regulation, the co-legislators attached a declaration in which they committed themselves to amending Article 8, once the judgment in C-648/11 was delivered. The Meijers Committee understands this to mean that the Council and Parliament settled their differences by seeking guidance from the Court. Moreover, as explained below, the Court in its ruling explicitly addressed concerns about so-called ‘asylum shopping.’

There are sound legal reasons to implement the Court’s ruling. The Court took into account the objectives of Article 6 (i.e. to make separate provisions for unaccompanied minors) and the Dublin II regulation as a whole (i.e. to guarantee effective access to an assessment of the applicant’s refugee status). The Court held that ‘[s]ince unaccompanied minors form a category of particularly vulnerable persons, it is important not to prolong more than is strictly necessary the procedure for determining the Member State responsible, which means that, as a rule, unaccompanied minors should not be transferred to another Member State.’ The protection of (unaccompanied) minors and effective access to the procedures for granting international protection are also important objectives of the Dublin III regulation.5

Further, the Court of Justice held that Article 24(2) of the Charter of Fundamental Rights of the European Union (the Charter) requires that the child’s best interests must be a primary consideration in decisions concerning the transfer of unaccompanied minors. According to the Court of Justice it is in the interest of unaccompanied minors ‘not to prolong unnecessarily the procedure for determining the Member State responsible, and to ensure that unaccompanied minors have prompt access to the procedures for determining refugee status’. Therefore an unaccompanied minor who lodges an asylum claim in a Member State and is present there should not be transferred to the Member State where he first lodged an asylum claim.

Article 8(4) of the current Dublin III regulation should also be interpreted in conformity with Article 24(2) of the Charter and thus, in principle, prevent the transfer of an unaccompanied minor.6

Legality of the derogation provisions laid down in Article 8(4b and c) of the compromise text

The principles set out by the Court of Justice in its judgment in Case C-648/11 apply to all unaccompanied minors. The question whether these minors still have an asylum procedure pending or completed in another Member State was irrelevant to the Court. However, Article 8(4b and c) of the compromise text provides that an accompanied minor who is present and lodges an asylum claim in a Member State should be transferred to another Member State if that Member State has already taken a final decision on the basis of an adequate and complete examination of its substance. Article 8(4c) contains short time limits in order to guarantee a relatively swift completion of the Dublin procedure. However, it may still take several months (six weeks for the decision in first instance and the time necessary to lodge an effective remedy and obtain a court decision) before the unaccompanied minor will be transferred.

This is not in conformity with the requirement following from the judgment in case C-648/11 that the Dublin procedure must not be prolonged unnecessarily and prompt access to the procedures for determining refugee status must be ensured.

Therefore these provisions violate Article 24(2) of the Charter. There is a clear risk that Articles 8(4b and c) of the compromise text will be declared invalid by the Court of Justice, should they be adopted by the Union legislator. In this respect, it is important to note that the Court of Justice found that a rule as laid down in Article 8(4a) as originally proposed does not entail a risk of asylum shopping.7 The Court considered that an unaccompanied minor whose application for asylum is substantively rejected in one Member State cannot subsequently compel another Member State to examine an application for asylum. According to the Court, Article 25 of Directive 2005/85/EC (asylum procedures directive) allows Member States to declare an asylum application inadmissible (and thus avoid examination of the substance of the application), if the asylum applicant has lodged an identical application after a final decision has been taken against him in another Member State.

The Member State which becomes responsible under Article 8(4) of the proposal needs to inform the Member State with which the first application has been lodged accordingly. In the reasoning of the Court therefore, there is no risk of asylum shopping, because a Member State may declare inadmissible an asylum application that is identical to an application on which another Member State has already finally decided. This possibility is maintained in the recast asylum procedures directive 2013/32/EU (Art. 33(1)(d)).

The Meijers Committee recommends deletion of paragraphs 4b and 4c (I – IV) in their entirety, as they do not comply with the Charter and the case law of the Court of Justice.

Taking back unaccompanied minors who have not claimed asylum

Article 8(4b) of the Commission proposal (Article 8(4d) of the compromise text) provides that Member States should inform unaccompanied minors who are present on their territory of their right to make an application and give them an effective opportunity to lodge an application in that Member State. If the unaccompanied minor does not lodge such application, he will as a general rule be transferred to the Member State where he has lodged his most recent asylum claim. Member States should refrain from transferring the minor if the transfer is not in his best interests.

The Meijers Committee finds that Article 24(2) of the Charter requires that the best interest of the child is a primary consideration in all decisions concerning the transfer of unaccompanied minors to another Member State. Unaccompanied minors belong to a category of particularly vulnerable persons, whether or not they have applied for asylum.8 It follows from the Court of Justice’s judgment in case C-648/11 that extensive procedures for determining the responsible Member State are not in a child’s best interest. This should therefore also apply to unaccompanied minors who did not lodge an application in the Member State in which they are present, as referred to in Article 8(4b) of the proposal.

The Meijers Committee is concerned that the rule laid down in the proposed Article 8(4b) will place the burden on the unaccompanied minor to prove that transfer is not in her or his best interest. Member States may be inclined to apply the general rule rather than performing a full best-interest determination before taking a decision to transfer or not. Furthermore, the proposed Article 8(4b) will encourage unaccompanied minors who do not wish to be transferred to another Member State to lodge an application, even if such an application has no chance of success. This would not be in the interest of the Member States nor in the best interest of the unaccompanied minor.

The Meijer Committee proposes that when the unaccompanied minor makes an informed decision not to apply for asylum, the Member State in which he is present shall perform a best interest determination before taking a decision on his transfer to another Member State. The duty to perform such a best interest determination should be included in Article 8(4b) of the proposal. The rule that the minor should be transferred to the Member State where he has lodged his most recent asylum claim should be deleted.

Legal protection in case the Member State decides not to transfer

The position of unaccompanied minors also highlights an anomaly in the Dublin Regulation in the sphere of effective remedies. Article 27 of the Regulation only ensures the right to an effective remedy ‘against a transfer decision’. Presumably this means that decisions not to transfer an applicant cannot be challenged before a court pursuant to the Regulation. The Meijers Committee has been informed of a number of cases in which an unaccompanied minor has expressly stated a preference to be transferred to another Member State, because a family member is present there, but where no take-charge request is submitted, or where the requested Member State refuses to accept such a request. The Regulation presumes that this a matter for the Member States to settle among themselves. Where, however, a decision not to transfer affects the asylum applicant in the enjoyment of his or her fundamental rights, such as the right to family life or the child’s best interests, an effective remedy against such a decision must be available. This follows clearly from Article 47 of the EU Charter of Fundamental Rights, which lays down that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy’.

The Meijers Committee therefore proposes to change the text of Article 27(1) of the Regulation in such a way that an effective remedy is also open to decisions not to transfer an applicant:

Article 27 Remedies

The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, [before a court or tribunal, against a transfer decision, a failure to submit a take-charge or take-back request as referred to in Articles 21, 23 and 24, or a decision on the request to take charge or to take back as referred to in Articles 22 and 25] before a court or tribunal.…

NOTES

1 COM(2014) 382 final.

2 Council Document No 15567/14 of 20 November 2014.

3 Case C-648/11 MA and Others vs. Secretary of State for the Home Department, para 63.

4 TK 2013-2014, 22 112, nr. 1895.

5 See recitals 5, 13 and 16 and Art. 8 of the Regulation.

6 Case C-648/11 MA and Others vs. Secretary of State for the Home Department, para 58.

7 Case C-648/11 MA and Others vs. Secretary of State for the Home Department, para 63.

8 ECtHR 4 November 2014, Tarakhel v Switzerland, Appl. no. , para 119.

(*) About: The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Anti-discrimination and Institutional Law. The Committee aims to promote the protection of fundamental rights, access to judicial remedies and democratic decision-making in EU legislation. The Meijers Committee is funded by the Dutch Bar Association (NOvA), the Dutch Refugee Council (VWN), Forum Institute on Multicultural Affairs, the Dutch Section of the International Commission of Jurists (NJCM), Art. 1 Anti-Discrimination Office, and the Dutch Foundation for Refugee Students UAF. Contact info:

Louis Middelkoop Executive secretary l.middelkoop@commissie-meijers.nl +31(0)30 297 4328

Please visit http://www.commissie-meijers.nl for more information.

The End of the Transitional Period for Police and Criminal Justice Measures Adopted before the Lisbon Treaty. Who Monitors Trust in the European Justice Area?

Abstract of a study submitted to the European Parliament Civil Liberties Committee. (LIBE) THE FULL TEXT IS AVAILABLE HERE

Authors: Prof. Valsamis Mitsilegas, Head of Department of Law and Professor of European Criminal Law, Queen Mary, University of London Dr Sergio Carrera, Senior Research Fellow and Head of Justice and Home Affairs Section, Centre for European Policy Studies, CEPS Dr Katharina Eisele, Researcher, CEPS

This Study examines the legal and political implications of the forthcoming end of the transitional period, enshrined in Protocol 36 to the EU Treaties, applicable to legislative measures dealing with police and judicial cooperation in criminal matters and adopted before the entry into force of the Lisbon Treaty. The analysis focuses on the meaning of the transitional period for the wider nature and fundamentals of the European Criminal Justice area and its interplay in the Area of Freedom, Security and Justice (AFSJ). Particular attention is paid to its multifaceted consequences of ‘Lisbonisation’ as regards supranational legislative oversight and judicial scrutiny, not least by the European Parliament in this context, as well as its relevance at times of rethinking the relationship between the principle of mutual recognition of judicial decisions and the fundamental rights of the defence in criminal matters in the AFSJ.

Legal Framework of the Transition

The transitional provisions envisaged in Protocol 36 have limited some of the most far-reaching innovations introduced by the Treaty of Lisbon over EU cooperation in justice and home affairs (JHA) for a period of five years (1 December 2009 to 1 December 2014). Such limits include restrictions on the enforcement powers of the European Commission and of the judicial scrutiny of the Court of Justice of the European Union over legislative measures adopted in these fields before the entry into force of the Lisbon Treaty under the old EU Third Pillar (Title VI of the former version of the Treaty on the European Union). Moreover, Protocol 36 provides for special ‘opt-out/opt-in’ possibilities for the UK. The scope and rules set out in Protocol 36 are of a highly complex and technical nature. The end of the transitional period enshrined in Protocol 36 reveals a complex conglomerate of legal provisions and procedures primarily designed for meeting the interest of some Member States’ governments to limit EU scrutiny, supervision and enforcement powers over national implementation and compliance with European law on police and criminal justice cooperation. This is a critical juncture because the transitional provisions of Protocol 36 come to a formal end on 1 December 2014.

Findings and Challenges

The main legal and political challenges related to the transitional provisions of Protocol 36 are multifaceted. The forthcoming end of the transitional period will only partially address the diverse legal landscape of fundamental rights protection in Europe’s area of criminal justice. The Study argues that the non-participation of the UK in EU legal instruments dealing with suspects’ rights in criminal proceedings undermines severely the effective operability of pre-Lisbon Treaty instruments driven by the mutual recognition principle, such as the European Arrest Warrant, even if from a ‘black letter’ law perspective the UK is entitled to ‘pick and choose’. In addition, the complex legal setting has contributed to creating legal uncertainty and lack of transparency characterising EU criminal justice instruments and their common applicability and implementation across the EU. The ambivalent position of the UK opens up the emergence of different and even competing areas of justice as well as dispersed levels of Europeanisation where enforcement of the principle of mutual recognition and protection of suspect rights are variable and anachronistic across the Union.

That notwithstanding, the Study argues that one of the most far-reaching consequences of the end of the transitional period will be the shifting of supervision on compliance and faithful implementation of EU law on police and criminal justice from domestic authorities in the Member States to EU institutional instances. The end of the transition will most significantly mean the liberalisation of ‘who monitors trust in the AFSJ’. This shift will for the first time ensure transnational legal, judicial and democratic accountability of Member States’ laws and practices implementing EU law in these contested areas, in particular the extent to which EU legislation is timely and duly observed by national authorities.

Protocol 36 does not foresee a formal role for the European Parliament in the decisions involved in the transition. Yet, the Parliament does have responsibility for the partly highly sensitive content of the Third Pillar measures directly affecting the citizens’ rights and freedoms and as co-legislator in post-Lisbon Treaty laws in these same domains. The lack of an effective and independent evaluation mechanism of EU criminal justice instruments based on the principle of mutual recognition poses a major challenge to legal and democratic accountability.

Protocol 36 has primarily aimed at limiting the degree of supranational (EU) legal, judicial and democratic scrutiny concerning EU Member States’ obligations in the EU Area of Justice. The legal patchwork of UK participation in pre- and post-Treaty of Lisbon criminal justice acquis indeed sends a critical signal of incoherency in the current delineation of the European Criminal Justice Area. The Study argues that the varied landscape resulting from the selective participation of the UK in EU criminal law measures poses significant challenges for legal certainty, the protection of fundamental rights in Europe’s area of criminal justice and the overall coherence of EU law.

Article 82(2) TFEU grants express EU competence to legislate on rights of the defence in criminal procedures where necessary to facilitate the operation of the principle of mutual recognition in criminal matters. The legality of post-Lisbon legislation on defence rights is thus inextricably linked with the effective operation of mutual recognition in criminal matters, including of the Framework Decision on the European Arrest Warrant. This is supported by pertinent case law of the Court of Justice of the European Union (CJEU), which ruled against previous UK requests to participate in the Visa Information System, or the Frontex and biometrics regulations on the basis of a teleological and contextual approach focusing on the coherence of EU law.

The Study argues that defence rights should not be negotiable at the expense of citizens’ and residents’ rights and freedoms. There is a direct causal link under EU primary law between the adoption of EU defence rights measures and the effective operation of mutual recognition enforcement instruments. Differing levels of EU Member State commitment to and participation in the fundamental rights of individuals in criminal proceedings run counter to a teleological approach which respects fully the objectives and the integrated nature of the AFSJ.

Recommendations

Increasing Coherency and Practical Operability: Suspects Rights as Sine qua non

The transition envisaged in Protocol 36 may well lead to incoherency and practical inoperability of the European Criminal Justice Area. The European Parliament as co-legislator in EU criminal justice law has an active role to play at times of ensuring that a common understanding of ‘ensuring coherency’ and ‘practical operability’ of the EU AFSJ is firmly anchored on strong defence rights and fair trial protection (rights of suspected or accused persons) and a sound rule of law-compliant (on-theground) implementation across the domestic justice arenas of EU Member States.

Promoting Consolidation and Codification — Better Linking of Mutual Recognition and Rights of Suspects in Criminal Proceedings

The European Parliament should give priority at times of implementing previous inter-institutional calls for consolidation and even codification of existing EU rules and instruments dealing with judicial cooperation in criminal matters. The new LIBE Committee should follow up the calls outlined in the European Parliament Report with recommendations to the Commission on the review of the European Arrest Warrant (2013/2109(INL). This should go along with the full accomplishment of the EU Roadmap of suspects’ rights in criminal proceedings as well as the procedural rights package.

Implementation and Evaluation — A Stronger Democratic Accountability

The European Parliament should give particular priority to better ensuring Member States’ timely and effective implementation of pre- and post-Lisbon Treaty European criminal law. An effective and independent evaluation mechanism should be developed following the template provided by the new 2013 Schengen Evaluation Mechanism, in which the European Parliament has played a role in the decision-making and implementation. This template should be followed at times of implementing any future system for criminal justice cooperation.

The Study starts by situating the discussion and briefly explaining the material scope and particulars featuring the transitional period in Protocol 36 in Section 2. Section 3 then moves into locating the debate in the specific context of the UK, and outlining its casuistic or privileged position in respect of the expansion of `supranationalism’ over EU police and criminal justice cooperation. Section 4 identifies a number of cross-cutting dilemmas and challenges affecting the transitional period, in particular those related to the impact of activating the Commission and Luxembourg Court’s legal and judicial scrutiny powers, questions of incoherencies due to UK’s variable participation and the obstacles to practical operability. Section 5 lays down three potential scenarios for the way forward in what concerns issues of fragmentation and coherence, reforming old EU Third Pillar law and the EAW while ensuring their added value, and questions related to implementation, consolidation and codification of EU criminal law. Section 6 offers some conclusions and puts forward a set of policy suggestions to the European Parliament and its LIBE Committee.

Towards a Declaration of Internet Rights

by Professor Stefano RODOTA’ (FREE Group member) (*)

For many years there has been a wide discussion about the possibility of adopting an Internet Bill of Rights, and debates have produced a considerable number of proposals. The Berkman Centre at Harvard University counted 87 of such proposals, to which we can add the Internet Magna Charta that Tim Berners-Lee is working on, and lastly the Declaration of the Rights of Internet Rights that has been drafted by a Committee established by the President of the Italian Chamber of Deputies. The novelty of the latter is that for the first time the proposal of an Internet Bill of Rights has not been produced by scholars, associations, dynamic coalitions, enterprises, or groups of stakeholders, but by an institutional entity.

It is necessary to recall that the debate on this topic dates back to the World Summit on the Information Society organised in 2005 by the UN in Tunis, where the need for an International Convention on Internet rights was explicitly underlined. This subject was deepened in the following UN Internet Governance Forums. But the international debate was progressively turned into precise rules within the European Union, even before the issue of the Internet Bill of Rights appeared in the international arena. These are not, however, parallel situationsdestined not to meet at any point. The European Union progressively brought to light the constitutional basis of the protection of personal data, finding its full recognition in Article 8 (**) of its Charter of Fundamental Rights. Here a strong similarity with the Internet Bill of Rights is identified, and it concerns precisely the constitutional scope of rules.

We are going through a phase of deep change in the way in which we are facing the problems highlighted by the Internet dynamics, in the passage from Web 1.0 to Web 2.0 and now to Web 3.0. It is not just a matter of following technological changes by adjusting legal provisions to suit them. A new definition is being developed of the rationale driving actions in this area, through a radical U-turn as regards the dynamics of the latest phase. A possible historical turning point is ahead of us, whose/that’s opportunities must be seized.

It seemed that an approach had become consolidated, which left little room to rights. From Scott McNealy’s abrupt statement of 1999 – “You have zero privacy. Get over it” – up to the recent hasty conclusion by Mark Zuckerberg about the end of privacy as a “social rule”, a line characterised by the intertwining of two elements emerged: technological irresistibility and the primacy of the economic logic. On the one side, in fact, it was highlighted how technological innovations and the new social practices made it increasingly difficult, not to say impossible, the safeguard of one’s private life and of the public liberties; on the other side, the statement on the “death of privacy” had become the argument to state that personal information had to be considered as property of those who collected it.

These certainties were radically challenged by Edward Snowden’s disclosure on the magnitude of the National Security Agency’s Prism programme and by the judgements of the European Court of Justice on data retention and Google. The idea according to which the protection of fundamental rights shall give way to the interests of security agencies and enterprises was rejected.

A new hierarchy has been established, with the fundamental rights as the first and starting point. The US President had to admit the inadmissibility of the procedures provided for by the Prism program and the Court of Justice, with its decision of 8th April, that declared that the Directive on data retention was illegal. And in the Google case the same Court explicitly stated that “the fundamental rights under Articles 7 and 8 of the Charter (…) override, as a norm (…) the economic interest of the operator of the search engine”, in a perspective broadening the European Union’s jurisdiction beyond its borders.

We are faced with a true “resurrection of privacy” and, more generally, with the primacy of the need and legitimacy of rules effectively protecting the rights of Internet users. Making reference to article 8 of the Charter, the Court of Justice was acting as a true constitutional court, opening a new and wide perspective.

The Italian initiative

This is the framework within which the Italian initiative on the Declaration of Internet Rights was adopted. Its goal is not limited to having a text to be used for national debate only.

The establishment of the Committee that drafted the document, in fact, was preceded by an international conference gathering some of the authors of the Brazilian Marco Civil, the representatives of European Institutions, and several experts from different Countries.

The text drafted by the Committee was presented on 13th October during a meeting at the Chamber of Deputies with the Presidents of the Parliamentary Committees of Member Countries in charge of fundamental rights.

The present draft is now submitted to a four-month public consultation on the Internet, at the end of which the Committee will draft the final text. Such consultation, however, is also being carried out at a European and international level, as shown by the contacts with other European Parliaments and by the video conference that will be held at the beginning of December between the Italian and the French Committees. Consultations are also taking place with experts and associations from non-European Countries.

An ambitious target was set: drafting a text allowing a common international debate, accompanied by a constant monitoring by the Chamber of Deputies. The goal is not limited to working in the complex and remote perspective of an international convention. Short-term and feasible results can be achieved, concerning the strengthening of the European system, its developments and the relationships with other countries, and most of all the consolidation of a culture highlighting common dynamics in the different legal systems. In this way, the debate around a future Internet Bill of Rights may lead to the awareness that in the different legal systems several elements already exist that, once connected to one another, establish an informal Internet Bill of Rights. An evidence of such trend is found in the decisions of the Courts of the different Countries and in the choice of legislative models, as shown by the clear influence of the European model on the Brazilian Marco Civil.

The Italian Declaration is characterised by a fundamental choice. Differently from almost all the other ones, it does not contain a specific and detailed wording of the different principles and rights already stated by international documents and national Constitutions. Of course, these are generally recalled as an unavoidable reference. But the attempt of the Declaration, as a matter of fact, was to identify the specific principles and rights of the digital world, by underlining not only their peculiarities but also the way in which they generally contribute to redefining the entire sphere of rights.

The key words – besides the most well-known ones concerning the protection of personal data and the right to the informational self-determination – include access, neutrality, integrity and inviolability of IT systems and domains, mass surveillance, development of digital identity, rights and guarantees of people in Internet platforms, anonymity and right to be forgotten, interoperability, right to knowledge and education, and control over Internet governance. The importance of the needs linked to security and to the market is obviously taken into consideration, but the balancing of these interests with fundamental rights and freedoms cannot take place on equal terms, in the sense of ensuring first and foremost the full respect for rights and freedom according to the clear provisions of the Charter of Fundamental Rights and to European case law.

In particular, security needs shall not determine the establishment of a society of surveillance, control and social sorting. Economic needs are taken into consideration in the framework of the neutrality principle that, by guaranteeing the generative nature of the Internet, keeps the possibilities for innovation unchanged, and prevents strong subjects from creating conditions of exclusion of possible competitors. Furthermore, whenever Internet platforms provide public services that are essential for the life and the activities of people, it is necessary to guarantee the conditions for a suitable interoperability in compliance with the principle of competition and equal treatment of people.

Provided that not all the issues can be analysed in this document, it is suitable recalling the need to consider the access to the Internet as a fundamental right of individuals (Tim Berners-Lee compared it to the access to water), as an essential guarantee not only against any form of censorship, but also against indirect limitations, such as taxation as it is presently happening in Hungary. The set of rights recognised do not guarantee a general freedom on the Internet, but specifically aims at preventing the dependency of people from the outside, the expropriation of the right to freely develop one’s personality and identity as it may happen with the wide and increasing use of algorithms and probabilistic techniques. The autonomy in the management of personal data, therefore, shall also consider new rights as those not to be tracked and to keep silent the chip. This perspective requires a particular in-depth analysis, since a deeply interconnected society is being developed, with a passage to Internet of Things in forms that have suggested some people to speak of an Internet of Everything, which determines a digitalisation of day-to-day lives that is able to transform any person and their bodies.

People cannot be reduced to objects of external powers, they must recover the sovereignty on their digital person. Identity is a key issue. The free development of one’s personality must be safeguarded.

Starting from this set of references, it is necessary to thoroughly examine the issue of the transformation of copyright, whose analysis was postponed to the end of the consultation, since knowledge on the Internet appears as a shared asset that can be considered as a common global resource.

A broader perspective is therefore opened by the Italian draft Declaration, in consideration of the large amount of topics to be tackled and the debate between different points of view; and such Declaration is significantly in line with the European Union policy that particularly emphasises the Charter of Fundamental Rights. The unquestionable aspect is the need to fine-tune a constitutional policy for the Internet, whose users – presently amounting to three billion people – cannot rely on a freedom guaranteed by the absence of rules, as it is still presently stated.

The reality is very different, showing an interconnected network heavily regulated by private subjects that cannot be controlled and that have no democratic legitimation, as it happens – beyond any disputes – with the “Over the Top” operating on the Internet. Internet rights are denied by totalitarian regimes and, unfortunately, by democratic regimes as well. The perspective of a Declaration of Internet rights aims at developing – through procedures different from the ones of the past – the constitutional rules that are fundamental in order to allow the Internet to keep its main feature as a place of freedom and democracy, as the widest space of the history of mankind.

NOTE

(*) Intervention at the Friedrich-Ebert-Stiftung –FREE Group experts meeting on :
Internet: only a “single digital market” or also a space to promote fundamental rights – Towards a European “Marco Civil”? (November 12, 2014). The main idea of this experts’ conference has been to have a first look to the impact of the EU Digital Agenda on fundamental rights as framed by the Treaties, the EU Charter and the recent CJEU jurisprudence (Data retention, Google Case..). As stated by the Charter the individual should be at the center of all EU policies and this objective underpins the recent proposal for an Internet Bill Of Rights of the Italian Chamber of Deputies as well as other national examples (Brasilian “Marco Civil” and recent US initiatives at government, congress and civil society level).
Bearing in mind that EU is competent on most of the aspects dealing with Internet the question arises how to preserve and promote individual rights notably in the pending negotiations on legislative proposals notably on Data Protection, Net Neutrality and Network Security (NIS). Moreover what should be the future initiatives to be developed by the a new Commission’s legislative programme impacting on Internet ? How the future EU single digital market could preserve the principles of non-discrimination, and of informational self determination by strengthening the access to internet as a public common good ?
Together with Stefano Rodotà took also part to the Seminar
Claude Moraes Chairman of the European Parliament Civil liberties Committee (which adopted in 2009 a first Internet Bill of Rights resolution)
Jan Philipp Albrecht EP Rapporteur for the Data Protection Regulaiton and for the transatlantic “umbrella” Agreement
Paul Nemitz Director at the European Commission
Giovanni Buttarelli, Assistant European Data Protection Supervisor
Marc ROTENBERG Professor at the Georgetown University and Director of EPIC and Marie GEORGES expert at the Council of Europe
as well as Joe Mc Namee, Executive Director, European Digital Rights (EDRi).

(**) Article 8 Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority

Denmark and EU Justice and Home Affairs Law: Really Opting Back In?

Original published EU LAW ANALYSIS

by Steve Peers

On October 7th the Danish Prime Minister made an announcement that Denmark would hold another referendum on EU matters in 2015. This was widely reported as a vote on whether Denmark would opt back in to EU Justice and Home Affairs (JHA) law. In fact, the government’s intention is to hold a vote on whether to replace a complete opt out with a selective opt-out. This blog post explains the detail of the issue, including a complete list of the measures which Denmark might opt back into if the Danish public approves the referendum proposal.

The Danish opt-out effectively dates back to the Danish referendum on the Maastricht Treaty in 1992. Following the initial Danish ‘no’ vote to that treaty, the EU’s Heads of State of Government adopted a Decision, which states that Denmark fully participates in EU JHA law. This was accompanied by a declaration stating that any transfer of powers to the European Community (as it then was) would be subject to a referendum in Denmark. This is generally regarded as the basis for Denmark’s opt-out on JHA matters.

This Decision is also often described as an opt-out on EU citizenship, although it is no such thing: it simply clarifies the relationship between Danish and EU citizenship. In fact, despite a widespread belief to the contrary, Denmark has no opt-out on EU citizenship at all. The JHA opt-out was formalised as a Protocol to the Treaties at the time of the Treaty of Amsterdam (in force 1999), and was then revised at the time of the Treaty of Lisbon (in force 2009). It currently appears as Protocol 22 to the Treaties.

In a nutshell, the legal position is as follows. Continue reading “Denmark and EU Justice and Home Affairs Law: Really Opting Back In?”

Some questions to the would-be Commissioner for Better Regulation, Fundamental Rights and Rule of Law (Timmermans)

by Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be Commissioners for Better Regulation, Fundamental Rights and Rule of Law (Timmermans) will be questioned tomorrow by Members of the European Parliament (MEPs), to determine whether the EP should vote to confirm them in office. MEPs have already asked some written questions and the would-be Commissioner have replied. However, during the oral hearing will be an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments.
Rather strangely the hearing will not follow to the EP very detailed internal rules (of art.118 and Annex XVI (*) which require that hearing should take place before the Parliamentary committees Candidate Vice President Timmermans will instead be heard by the Conference of President of political Groups.

1.Rule of law / implementation of EU law
The confidence of all EU citizens and national authorities in the functioning of the rule of law in the Member States is vital to increase the mutual trust and to further develop the EU into “an area of freedom, security and justice without internal frontiers”.
In your written reply you strongly support the recent Commission proposal for a “common rule of law framework (COM(2014)158 as repeatedly advocated by the European Parliament (but criticized by the Council legal Service). However such an exercise risk which should cover all the EU member states, risk to be meaningless if the Commission does not strengthen the mechanisms which implement the principle of sincere cooperation with and between the MS. For instance there is no ground in the Treaty which justify confidential meetings between the Commission and the MS (even in the framework of the so called “EU Pilot mechanism”) when legal certainty on the exact scope of EU citizens rights and obligations are at stake.
As first steps to strengthen the rule of law would not then be appropriate :
– to update the way how the Commission on a daily basis debates with the Member states the implementation of EU legislation?
– make public the MS implementation plans as well as the table of correspondence between EU and national rules ?
– to implement, (five years after the Lisbon Treaty !), the art.70 mechanism on “objective and impartial evaluation of the implementation of the Union policies” in the FSJA by keeping informed the European and national parliaments ?
– to take stock every year of the ruling of the European Courts and of the measures taken at national level ?

2. Charter of Fundamental rights as “roadmap for the EU legislator ?
In a recent ruling the Court of Justice stroke down for the first time an EU Directive (the Data Retention Directive 2006/24) because “.., the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter. ” According to the CJEU the Directive “..does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter” and moreover “does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured…” In other terms from now on the Court of Justice will require 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.
On the basis of this landmark ruling do you not consider your priority to revise under the proportionality perspective the legislation falling in judicial and police cooperation in criminal matters adopted before the entry into force of the Charter and of the Treaty of Lisbon ?
Will you commit to develop a stronger and more transparent strategy to deal with infringements of EU law where the rights in the Charter are threatened by a Member State’s non-existent or incorrect implemenation of its EU law obligations?
Will not be sensible, taking in account your attachment to the REFIT exercise to review the legislation by establishing “sunset clauses” for measures limiting EU citizens rights? Moreover, by sticking on data protection aspects do you not consider that this ruling raise even bigger doubts on the compatibility with the proportionality principle of the EU-US agreements on PNR and TFTP and of the legislative proposals submitted by the Commission on the EU-PNR and the “Entry-Exit” (not to speak of the lack of compliance of the proposal on trusted traveller with the principle of non discrimination) ? Continue reading “Some questions to the would-be Commissioner for Better Regulation, Fundamental Rights and Rule of Law (Timmermans)”

Some questions to the candidate High Representative for external relations (Federica Mogherini)

By Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be High Representative for the Common Foreign and Security Policy and Commission Vice President for external relations (Mogherini) will questioned in the next two days by Members of the European Parliament (MEPs), to determine whether the EP should vote to confirm her in office. MEPs have already asked some written questions and the would-be Commissioners have replied. However, the oral hearings which will shortly take place are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments.

The following are suggested questions on institutional issues, although of course MEPs should also ask questions on the substance of EU foreign policy.

QUESTIONS TO HIGH REPRESENTATIVE CANDIDATE MOGHERINI

1 External Internal Security Policy

In your written answer you claim the need of a consistent and global approach to external and internal security. However, legally these two dimensions have been artificially separated in the Treaties by a disconnection clause (art.40 of TEU) [1] according to which the external security will remain intergovernmental. This means that consensus between the 28 Member States will remain the main rule, there are no legislative powers and the Court of Justice has no full judicial oversight. Bearing in mind these flaws of the EU external security policy (also from the point of view of the democracy principle and of the rule of law) would not be better to achieve some of your goals by building them on the external dimension of “internal” policies (such as protection of borders, migration, judicial and police cooperation)? If so qualified majority will be the rule and external agreements will be approved by the EP (as already happened with some EU-US agreements) and EU acts will be under the control of the Court of justice…

2.Solidarity clause in case of terrorist attack or natural or man made disaster (art. 222 TFEU)

On a joint proposal of your predecessor and of the Commission on 24 June 2014 the Council adopted thearrangements for the implementation by the Union of the solidarity clause (art 222 TFEU) to be activated if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The text has been adopted without associating the EP and moreover it does not foresee any structured information of the European Parliament on the way in which threats are defined and monitored, not even in the case that such an event occurs. However even if the Treaty does not impose a requirement to provide this information nothing would had prevented the Council from foreseeing it on its own initiative also because it would be bizarre that the members of the EP discover a terrorist attack from the press rather than from institutional channels. Will you propose an amendment to that Decision by recognising an adequate space for the EP?

3.Global Approach to Migration and mobility partnership as a binding act

As you rightly say in your written answer, EU development policy and international agreements could be the answer to address the root causes of displacement. However the Global Approach of Migration and the mobility partnership are only diplomatic instruments and are meaningless if not framed as full international agreements. Should they be transformed into legal binding acts (both for third countries and the EU and its Member States) and be accompanied by formal EU agreements with the relevant UN Agencies (UNHCR, IOM) tasking (and financing) them for the interventions in third countries? Continue reading “Some questions to the candidate High Representative for external relations (Federica Mogherini)”

WARNING: THE EU COUNCIL IS TRYING TO UNDERMINE PRIVACY SEALS (and through this, the General Data Protection Regulation)

by Douwe KORFF (*)

(*) Professor Douwe Korff is an Associate of the Oxford Martin School of the University of Oxford and a Visiting Fellow at Yale University (Information Society Project). He helped to establish the European Privacy Seal (EuroPriSe) scheme discussed in the text.

Introduction

Some people, including myself, believe that good privacy seals, managed by the right bodies, can make a serious contribution to high-level data protection – while bad seals, issued by bodies that are more interested in providing fig-leaves and making money, can seriously harm data protection. The arrangements for data protection certification in the new General Data Protection Regulation (hereafter: “the regulation”) are therefore important. The original draft of the regulation, issued by the Commission in January 2012, merely said that certification schemes should be “encouraged” (although it provided for some EU-level harmonisation of the frameworks).

The European Parliament’s amended text is much more ambitious in this regard and, if adopted, would make certification schemes both more integrated with the general data protection regime and stronger, also in terms of ensuring that no seals could be issued in one Member State that would undermine data protection in other Member States.

However, the text set out in an EU Council document dated 26 September 2014 and just leaked, shows that the Member States are trying to undermine the good proposals of Parliament.

At II, I first briefly set out the problems with European privacy seal schemes under the current rules. Next, at III, I analyse the relevant provisions in the different versions of the regulation, adopted by the Commission, Parliament and the Council. Finally, at IV, I conclude that if the Council text were to be adopted, the provisions on seals could become a Trojan Horse that could seriously undermine the in principle strong data protection regime in the regulation (pace other watering-down attempts by the Council). This note thus seeks to sound a warning to those involved in the upcoming trilateral negotiations on the regulation text, not to allow such a dangerous scheme (or rather, an ill-defined miscellany of schemes) to slip in.

Data protection seals and the 1995 Data Protection Directive

There is no explicit provision on data protection- or privacy seals or certification schemes in the main EC data protection directive (Directive 95/46/EC, hereafter “the directive”), although other self-regulatory mechanisms, such as codes of conduct and contractual arrangements are encouraged under it (see Art. 27 re codes; Art. 26(2) re “appropriate contractual clauses”). Nevertheless, the European Commission has in practice encouraged the establishment of seals, in particular by supporting the establishment of the “European Privacy Seal” (EuroPriSe) scheme under an “e-TEN” programme; this was until recently operated by the data protection authority of the German Land of Schleswig-Holstein, the Independent Centre for Privacy Protection (or ULD after its German initials), but has recently been passed on to a private German company, 2B.[1] The French data protection authority, CNIL, has also established a certification scheme, under which controllers can certify that they meet certain CNIL-specified criteria (but so far only in relation to privacy training, data protection audit, and one product: cloud computing).[2]

Continue reading “WARNING: THE EU COUNCIL IS TRYING TO UNDERMINE PRIVACY SEALS (and through this, the General Data Protection Regulation)”