Parliamentary tracker : echoes from LIBE meeting of January 30-3124, 2017

by Luigi LIMONE (*)

Summary :
– Information systems and interoperability
– 2009 Europol Data Breaches
– Europol-Danemark Agreement
– Amnesty Report on Hotspots in Italy
– Residence Permits for Third Country Nationals
– Trade framework Agreement with Turkey
– LIBE delegations to the UN Summit on migration (2016)
– Electorinc votes
– Draft Report on the Reception Directive
– Implementation PNR Directive
– Registration Ships Passengers
– EU-Afghanistan Joint Way Forward (migration)
– Study on criminalisation of humanitarian assistance to irregular migrants
– Implementation Directives on seasonal workers and intracorporate transfert

 
Point 1 – High-Level Expert Group on information systems and interoperability
Presentation of the state of play of the process towards the interoperability of information systems and first results of the High-Level Expert Group’s interim report of December 2016 by Julian King, Commissioner for the Security Union.
Julian King, Commissioner for the Security Union, opened his presentation highlighting the need for an effective information sharing system between Member States. In particular, he reported several repeating cases of people being registered under different identities within the  various EU information systems. Therefore, he underlined the importance of looking at how to improve the quality of the data which are put into the information systems, the access to that data by the national authorities as well as the way in which that data in processed.
He also mentioned the need to increasingly support Member States for the implementation of the EU Passenger Name Record (PNR) directive and claimed that some progress was achieved in the way information is shared between national authorities, mentioning in particular Europol contribution to smart data information.
From his presentation, three priority actions have emerged:  Continue reading

Parliamentary tracker : echoes from LIBE meeting of January 23-24, 2017

by Luigi LIMONE (*)

Summary:
– Confirmation of Claude Moraes as Chairman of LIBE Committee
– State of Roma integration in the EU
– Collection of biometric data of illegally staying third-country nationals
– Structured dialogue with Commissioneer Vera Jourova
– Legal Service presentation of Tele2/SverigeAB ruling on data retention
– EASO assesment on Turkey and Balkan Countries as “safe countries”
– Danemark-Europol cooperation after May 1st 2017
– Structured dialogue with Commissioneer Avramopoulos
– EP report on “Fundamental rights implications of Big Data”
– Outcome of the LIBE delegation in Sweden (19-20 September 2016)

 

The Committee meeting of LIBE of 23 and 24 January opened with the confirmation of Claude Moraes (S&D, United Kingdom) as chairman of the LIBE Committee for the second half of the 8th legislature (2014-2019).

  1. The first point on the agenda was about the ‘State of play of Roma integration in Member States’.

It has been opened by an intervention of  Ioannis Dimitrakopoulos, Head of Equality and Citizens’ Rights Department for the European Union Agency for Fundamental Rights (FRA) who presented the findings of the Second European Union Minorities and Discrimination (MIDIS) Survey on Roma inclusion.
This Survey build on the results of the first wave of the large-scale survey conducted by the European Union Agency for Fundamental Rights (FRA) in 2008 and is particularly focused on the issue of Roma inclusion in order to fulfill both the EU global strategy for the next period and the UN Agenda for sustainable development..
The main emerging issues of the second survey based have been :
1) Education: this is the only area where some improvements have been registered, notably for young children. However, almost half of Roma children don’t follow secondary schools and almost 95% do not attend any form of post-secondary education.
2) Youth: on average, 63% of young Roma (aged 16-24) are neither working nor studying or following professional training (compared to 12% of their non-Roma peers of the same age in the EU).
3) Employment: fewer than one on three Roma have a paid job, and the situation is even worse for Roma women.
Most of Roma people are marginalized and not less than 41% of Roma living in Europe is discriminated in employment, education or when trying to reach health care centers or the public administration. Continue reading

The final UK renegotiation deal: immigration issues

MY COMMENTS : Steve PEERS contribution is, as always, focused, and legally outstanding. It is interesting to note that in case of positive result of the UK referendum  it will be up to the EP to decide if, to preserve the UK “special” status, substantial amendments to the EU legislation on freedom of movement should be adopted. However what is at stake is the principle of non discrimination between EU citizens as defined by art. 9 of the TEU according to which “..In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.”  

I do believe that in a “political” Union, worth its name and its former ambitions,  this should the objective of the negotiations  should had been to delete the existing protocols granting special status to some Countries and (their national Citizens) who become more “equal” than the others EU citizens.. However thanks to Mr Cameron it is now abundantly clear that our EU leaders are no more “Dwarfs on giant’s shoulders” but only short sighted political dwarfs… What is even more troubling is that, if the UK which has been for more than 40 years consistent with its initial position, other EU Countries, rhetoric statements taken apart,  have a much more ambiguous position towards the EU ( see France, Polonia, Hungary, Sweden, Finland and even Italy) and behave in a way incompatible with the idea of being part of the same family.

Emilio DE CAPITANI

 

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Saturday, 20 February 2016)

by Steve Peers*

So David Cameron has achieved his deal on the renegotiation of the UK’s EU membership (full text of that deal here). This is the first of a series of posts on the final deal – starting with the issue of ‘EU immigration’ (or, from the EU law point of view, the free movement of EU citizens). This builds on (and partly recycles) myearlier post on the EU immigration issues in the draft deal.

I will write later about the other substantive issues (competitiveness, Eurozone relations, sovereignty) and on the legal form of the deal (although see already my post on the legal form of the draft deal; my comments there won’t change much when I update them in light of the final deal). And see also Katarzyna Granat’s analysis of the ‘red card’ for national parliaments – again, the final text of the deal doesn’t differ from the draft here).

The deal takes the form of seven legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘Decision’); a Statement of the Heads of State and Government (which consists of an agreed Council Decision); aDeclaration by the European Council (which consists of the EU Member States’ Heads of State and Government, although when acting collectively they are legally distinct from the European Council): and four declarations by the Commission. Of these, Section D of the draft Decision and three of the Commission declarations relate to immigration issues. One of these Commission declarations (relating to child benefit exports) was added during the negotiation, while the text of Section D and another declaration (on the ‘emergency brake’ in in-work benefits) was amended. The other declaration (on so-called ‘abuse’ of free movement) was not changed.

While Section D contains some important attempts to clarify EU free movement law, the key feature of the deal on immigration is the intention to propose amendments to the three main current EU laws. These three laws are: (a) the EU citizens’ Directive, which sets out the main rules on most EU citizens moving to other Member States: (b) the EU Regulation on free movement of workers, which contains some specific rules on workers who move; and (c) the Regulation on social security, which sets out rules on coordination and equal treatment in social security for those who move between Member States.

All three sets of amendments are to be proposed by the Commission as soon as the main Decision enters into effect. That will happen (see Section E of the Decision) as soon as the UK announces that it will remain a member of the EU – if, of course, the UK public vote to remain in the upcoming referendum. The deal includes a commitment from the Commission to make these proposals, and from the other Member States to support their adoption in the EU Council (oddly, the latter commitment does not apply to the planned amendment to the citizens’ Directive, since that proposal is not referred to in the main Decision).

However, all three proposals will be subject to the ‘ordinary legislative procedure’, meaning that they have to be agreed with the European Parliament. It is also possible that their legality would be challenged before the EU Court of Justice. I can’t appraise the political likelihood of the European Parliament approving the proposals, although the largest party (the European People’s Party, made up essentially of centre-right parties like Angela Merkel’s Christian Democrats) hasannounced that it supports the renegotiation deal in principle, subject to examination of the details. However, I offer some thoughts below about possible challenges to the legality of these laws if they are adopted.

Unlike some other parts of the deal (on the position of non-Eurozone states, and the exemption of the UK from ‘ever closer union’), there is no mention of future Treaty amendments to give effect to any part of the text dealing with free movement (immigration) issues. So the main impact of the deal in this area will come from the three legislative proposals, once adopted. Since those proposals will not be tabled or agreed until after the UK ‘Remain’ vote (if there is one), this means that the analysis of the details is necessarily somewhat speculative. There are some important points of detail that will only be clear once the legislation is proposed and approved. I flag up some of those finer points below.

Although the press discussion has focussed on the ‘emergency brake’ in in-work benefits, there are three categories of issues: benefits (including a couple of points besides that emergency brake); the family members of non-EU citizens; and EU citizens who commit criminal offences. I refer back to Cameron’s November 2014 speech on EU immigration issues (which I analysed here) where relevant.

It should be noted that there is no text in the deal on two of the issues which Cameron had raised: removal of job-seekers if they do not find a job within six months, and a requirement to have a job offer before entry. Both these changes would have required a Treaty amendment, in light of the Antonissen judgment of the CJEU.

Benefits

There are three benefits issues in the draft deal: (a) the ‘emergency brake’ for in-work benefits; (b) the export of child benefit; and (c) benefits for those out of work.

‘Emergency brake’ on in-work benefits

Cameron had called for no access to tax credits, housing benefits and social housing for four years for EU citizens, but later signalled his willingness to compromise on this point. The position of non-workers and job-seekers is discussed below; but the position of workers is legally and politically difficult, since the Treaty guarantees them non-discrimination.

In the end, the deal provides not for permanent discrimination on this issue, but temporary discrimination on the basis of an ‘emergency brake’. The Commission will propose legislation on this issue, which will provide that the UK (or other Member States) can apply a four-year ban on in-work benefits, subject to substantive and procedural criteria. Procedurally, the rules will say that a Member State will apply to the Council to authorise the ban. The Council will presumably act by the default voting rule in the Treaties: a qualified majority on a proposal from the Commission. That means no single Member State can veto the request to pull the brake. The final deal leaves vague the exact authorisation process which will apply in the Council, to avoid annoying the European Parliament (EP); but that detail will have to be addressed sooner or later. Certainly the EP will have to approve the legislation which sets up that process in the first place; the question is whether it would have a role deciding if the brake should be pulled.

A Commission declaration states the UK qualifies to pull this ban immediately, in particular because it did not apply transitional controls to workers from new Member States in 2004. However, there is nothing in the deal to suggest that Member States – who would have the final word – also agree. The restrictions would only to those who were ‘newly arriving for a period of seven years’, and would have to be phased out during that time. Again, the seven years matches the transitional period which the UK could have applied to control the numbers of workers from new Member States, back in 2004.

Several points of detail arise. First of all, after the seven years have expired, it’s not clear how much time would then have to pass before the brake could be applied again. Secondly, it will be important to clarify the meaning of those who are ‘newly arriving’. What about those who lived in the UK before, and are now returning here? How much time would they have had to spend in Poland (say) before they are considered ‘newly arriving’ again? Presumably the brake would not apply to those who are already here when the brake is pulled, but are not working at that time (due to youth, unemployment, childcare or illness) but who get work afterward.

Thirdly, it will be necessary to define how to calculate the four year period. It’s easy enough to apply it to those who begin work as soon as they (newly) arrive in the country, and who work for the full four years afterward. But what about those (a non-working spouse, or a teenager, for instance) who start work some time after they enter the country? What about those who start work, stop for whatever reason and then restart? What about those who start work during the brake period, then spend a year or so in Poland, then come back? And how can we be sure when exactly someone entered the country in the first place?

The final crucial point of detail is, obviously, the grounds on which the brake can be applied. According to the Decision, it would apply where:

‘an exceptional situation exists on a scale that affects essential aspects of [a Member State’s] social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services’.

There’s certainly a widespread perception that one of more of these problems exist in the UK and are caused by the large increase in the number of workers from other Member States in recent years. However, there are two serious problems with the proposed mechanism. Firstly, as Jonathan Portes has argued, objective evidence for this view is lacking. Secondly, while the CJEU has been willing to accept certain limits to free movement rights on the grounds of protecting health systems (see myprior blog post for details), this would have a much more far-reaching impact on non-discrimination for workers. It’s certainly conceivable that by analogy from the Court’s obvious willingness to keep EU monetary union afloat, along with its endorsement of restrictions for non-workers in recent years (see below), it mightaccept that these plans do not violate the Treaties. But as EU law currently stands, that is probably a long shot.

Export of child benefit

Cameron sought to end payment of child benefit to children living in other Member States. This payment is provided for in the EU social security coordination Regulation, which would have to be amended to change those rulesThere was a strong argument that the plan would have breached the Treaties, since in the case ofPinna the CJEU struck down EU legislation that allowed Member States not to export such benefits at all as a breach of the rules on free movement of workers.

The deal does not go as far as Cameron wanted: instead child benefit can be limited by indexing it to the ‘conditions’ in the receiving State. This will only apply to ‘new claims made by EU workers in the host Member State’; but after 1 January 2020, this ‘may’ be extended to ‘existing claims already exported by EU workers’. This is clarified by the Commission declaration, which states that the ‘conditions’ refers to the ‘standard of living and level of child benefits’ in the child’s State of residence. The transitional rule, and the Commission declaration, were added during negotiations. It’s an open question whether this new law would breach the Treaties, since there is no case law on the point.

Several points of detail arise here. It’s explicit that the new rules will be optional, so Member States can still be more generous if they want to. There’s nothing to limit their application to the UK (although I will refer to the UK and Poland here, purely for the sake of readability). It’s not clear whether the rules will also apply to Britishcitizens who have children in other Member States; arguably the principle of non-discrimination will require that they do. It’s also not clear what happens to ‘mixed’ families of (say) British and Polish parents (or indeed step-parents). Will it depend on which parent is the worker? What if both are workers? What if that changes over time?

The transitional clause also raises issues. The Decision distinguishes between ‘new claims’ and ‘existing claims already exported by EU workers’. Presumably the new law will state a precise date at which claims can be regarded as ‘existing’ (say 1 January 2017). These must be existing exported claims, so if a child moves to Poland after 1 January 2017, or is born after that date and resides in Poland, then child benefits could be reduced, even if the worker is already in the UK. So if my estimated date is correct, anyone who is thinking about having a child, and who wants to avoid the application of these rules, had better get a move on. Perhaps this Easter will be the season of fertility even more than usual.

Finally, it should be noted that a challenge by the Commission to other aspects of UK payment of child benefit to EU citizens is still pending. The non-binding opinion of an Advocate-General argues in favour of the UK in this case (for a critical view, see Charlotte O’Brien’s analysis here). It wouldn’t surprise me if the Commission quietly withdrew this legal challenge. You read that here first.

Benefits for those out of work

Cameron sought to end social assistance for job-seekers. The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. Although the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question, it took a narrow view of this rule in the judgment in AlimanovicPure benefit tourists (who have never had work in the host State) are not entitled to benefits, according to the judgment in Dano. So the Decision simply reiterates this case law, which has already satisfied Cameron’s main objectives in this field. It should be noted that another judgment by the Court of Justice on EU benefits issues is due next week.

EU citizens’ family members

Under the EU citizens’ Directive, currently EU citizens can bring with them to another Member State their spouse or partner, the children of both (or either) who are under 21 or dependent, and the dependent parents of either. This applies regardless of whether the family members are EU citizens or not. No further conditions are possible, besides the prospect of a refusal of entry (or subsequent expulsion) on grounds of public policy, public security or public health (on which, see below).

In principle EU law does not apply to UK citizens who wish to bring non-EU family members to the UK, so the UK is free to put in place restrictive rules in those cases (which it has done, as regards income requirements and language rules). However, the CJEU has ruled that UK citizens can move to another Member State (the ‘host Member State’) and be joined by non-EU family members there, under the more generous rules in the EU legislation. Then they can move back to the UK (the ‘home Member State’) with their family members, now invoking the free movement rights in the Treaties. This is known in practice (in the UK) as the ‘Surinder Singh route’, because of the name of the case which first established this principle. In 2014, the CJEU clarified two points about this scenario (as discussed by Chiara Berneri here): (a) it was necessary to spend at least three months in the host Member State exercising EU law rights and residing with the family member, before coming back; and (b) the EU citizens’ Directive applied by analogy to govern the situation of UK citizens who return with their family members.

In his 2014 speech, David Cameron announced his desire to end all distinction between EU citizens and UK citizens as regards admission of non-EU family members, by allowing the UK to impose upon the EU citizens the same strict conditions that apply to UK citizens. Since this would have deterred the free movement of those EU citizens who have non-EU family members, there is a good chance that it would have required not just a legislative amendment but a Treaty change.  (Note that according to the CJEU, EU free movement law does not just require the abolition of discrimination between UK and other EU citizens, but also the abolition of non-discriminatory ‘obstacles’ to free movement).

However, the deal does not go this far. The main Decision states that:

‘In accordance with Union law, Member States are able to take action to prevent abuse of rights or fraud, such as the presentation of forged documents, and address cases of contracting or maintaining of marriages of convenience with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a Member State or for bypassing national immigration rules applying to third country nationals.’

The Commission Declaration then states that it will make a proposal to amend the citizens’ Directive:

‘to exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State. Accordingly, in such cases, the host Member State’s immigration law will apply to the third country national.’

That Declaration also states that the Commission will clarify that:

‘Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules’; and

‘The concept of marriage of convenience – which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State.’

It seems clear that these ‘clarifications’ will not be included in the legislative proposal, since the declaration later concludes (emphasis added):

‘These clarifications will be developed in a Communication providing guidelines on the application of Union law on the free movement of Union citizens.’

Let’s examine the planned legislative amendments, then the guidelines which will provide ‘clarifications’. The amendments will exclude two separate categories of non-EU citizens from the scope of the citizens’ Directive: those who did not have prior lawful residence in a Member State before marrying an EU citizen who has moved to another Member State; and those who marry such an EU citizen after he or she has moved to a Member State. For these people, national immigration law will apply.

The background to this proposal is CJEU case law. In 2003, in the judgment inAkrich, the CJEU ruled that Member States could insist that non-EU family members had previously been lawfully resident in the Member State concerned (previously no such rule appeared to exist). But in 2008, in Metock, the CJEU overturned this ruling and said that a prior legal residence requirement was not allowed.

Several points arise. First, the basic definition: what is lawful residence exactly? Presumably it means more than lawful presence, ie a stay of three months on the basis of a valid visa or visa waiver. But what about ambiguous cases, such as a pending asylum application or appeal? EU legislation says that asylum-seekers can usually stay until the application fails (if it fails), and then during the appeal (subject to some big exceptions). According to the CJEU, the EU’s main rules on irregular migrants therefore don’t apply to asylum-seekers whose application is pending.

Secondly, it’s odd to refer to national law alone, since sometimes EU law governs the admission of non-EU nationals. Even the UK (along with Ireland) is bound by the first-phase EU asylum law, and by the EU/Turkey association agreement. Denmark is bound by the latter treaty. And all other Member States are bound by the second-phase asylum law, along with EU legislation on admission of students and researchers and some categories of labour migrants (the highly-skilled, seasonal workers and intra-corporate transferees).

Thirdly, it’s arguable that the EU principle of non-discrimination applies. That would mean, for instance, that if a German woman already in the UK married her American husband, the UK would have to treat her the same as a British woman in the same situation – but no worse. This would in fact be relevant to every Member State – there’s nothing in this part of the deal that limits its application to the UK. (One important point of detail is whether all Member States would be obliged to apply the new rules on ‘prior lawful residence’ and ‘marriage after entry of the EU citizen’, or whether they could choose to waive one or both of those rules. The EU citizens’ Directive already states that Member States can apply more liberal standards if they wish to).

Finally, the consequences of the rule will need to be clearer in the future legislative amendments. Does the exclusion from the scope of the Directive mean that the family member is excluded forever from the scope of the citizens’ Directive – even if the person concerned is admitted pursuant to national immigration law? That would mean that national immigration law (or EU immigration legislation, in some cases) would continue to govern issues such as the family member’s access to employment or benefits, or subsequent permanent residence. It’s also not clear what happen to children such as the step-child of the EU citizen, or a child that was born to the EU and non-EU citizen couple while living in a third country.

Could this legislative amendment violate the EU Treaties? In its judgment inMetock, the Court referred almost entirely to the wording of the citizens’ Directive. It mainly referred to the Treaties when concluding that the EU had the competenceto regulate the status of EU citizens’ third-country national family members. But it also referred to the Treaty objective of creating an ‘internal market’, as well as the ‘serious obstruct[ion]’ to the exercise of freedoms guaranteed by the Treaty, if EU citizens could not lead a ‘normal family life’. It must therefore be concluded that there is some possibility that the revised rules would be invalid for breach of EU free movement law.

Would the amendment violate the EU Charter right to family life? That’s unlikely. While the right to family life is often invoked to prevent expulsions of family members, the case law of the European Court of Human Rights gives great leeway to Member States to refuse admission of family members, on the grounds that the family could always live ‘elsewhere’ – as the CJEU has itself acknowledged (EP v Council). There is some possibility, though, that the CJEU would be reluctant to follow that case law (EP v Council concerns families entirely consisting of non-EU nationals) in the context of free movement: the idea that you could go away and enjoy your family life somewhere else is antithetical to the logic of free movement.

As for the ‘clarifications’ in future guidelines, they will of course not be binding. They first of all refer to cases where an EU citizen has moved to another Member State and come back to the home State. The definition of what constitutes a ‘sufficiently genuine’ move to another country is set out in the case law (three months’ stay with a family member) and mere guidelines cannot overturn this.

It should be noted that the Surinder Singh case law is in any event derived from theTreaty. This line of case law does not accept that such movement between Member States is an ‘evasion’ of national law – as long as free movement rights are genuinely exercised with a family member for a minimum time. The CJEU also usually assumes (see Metock, for instance) that a ‘marriage of convenience’ cannot apply to cases where there is a genuine relationship, even if an immigration advantage is gained. (The Commission has released guidelines already on the ‘marriage of convenience’ concept: see analysis by Alina Tryfonidou here).

Having said that, the planned legislative changes will complicate the plans of people who wish to move to another Member State with their non-EU family and then move back, since national immigration law will apply to their move to the hostMember State. It will be important to see how the legislative amendments address the transitional issues of people who have already moved to a host Member State before the new rules apply. Can the home Member State say, possibly based on the Commission’s ‘guidance’ (which might be issued before the new legislation is adopted) that those families must now obtain lawful residence in the host State for the non-EU family member, before the non-EU family member can come to the home State?

Criminality and free movement law

The Treaties allow for the refusal or entry or expulsion of EU citizens on ‘grounds of public policy, public security or public health’. The citizens’ Directive sets out detailed substantive and procedural rules on this issue, which has been the subject of considerable CJEU case law.

What does the renegotiation deal do? First of all, the Decision states that:

‘Member States may also take the necessary restrictive measures to protect themselves against individuals whose personal conduct is likely to represent a genuine and serious threat to public policy or security. In determining whether the conduct of an individual poses a present threat to public policy or security, Member States may take into account past conduct of the individual concerned and the threat may not always need to be imminent. Even in the absence of a previous criminal conviction, Member States may act on preventative grounds, so long as they are specific to the individual concerned.’

To this end, the Commission declaration states that it will:

‘also clarify that Member States may take into account past conduct of an individual in the determination of whether a Union citizen’s conduct poses a “present” threat to public policy or security. They may act on grounds of public policy or public security even in the absence of a previous criminal conviction on preventative grounds but specific to the individual concerned. The Commission will also clarify the notions of “serious grounds of public policy or public security” and “imperative grounds of public security” [grounds for expelling people who have resided for longer periods in a host Member State].  Moreover, on the occasion of a future revision of [the citizens’ Directive], the Commission will examine the thresholds to which these notions are connected.’

It’s not clear whether the revision of the Directive referred to at the end here is as imminent as the proposal to amend the rules to create a ‘prior lawful residence’ rule for non-EU family members. Otherwise the plan to issue guidelines is clearly not binding. The language in these guidelines partly reflects the existing law, but some features are new: the greater emphasis on past conduct, the lesser need to show that a threat is imminent and the possibility of expelling someone as a ‘preventative’ measure.

These changes fall within the scope of Cameron’s desire to have ‘stronger measures to deport EU criminals’. However, it should be noted that there is no specific reference to his plans for ‘tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters’. While a conviction and re-entry ban for fraud might be covered by the guidelines referred to above, there’s no mention of clarifying entry bans as regards those guidelines, or changing the legislation on this issue. Also, as I noted in my comments on Cameron’s plans at the time, EU legislation does not allow for re-entry bans for rough sleepers and beggars, since the EU citizens’ Directive states unambiguously that a ban on entry cannot be imposed where a person was expelled for grounds other than public policy, public security and public health. Put simply, a Member State can impose an entry ban where an EU citizen has been expelled due to criminality – but not where he or she has been expelled due to poverty.

Longer waiting periods for free movement of persons from new Member States

Finally, it should be noted that the Decision briefly refers to Cameron’s plan to have longer waiting periods for free movement of persons in future accession treaties. It does not incorporate his suggestion, but merely notes it. However, since the details of each new Member State’s adaptation to EU law are set out in each accession treaty, which has to be approved by each Member State, the UK can simply veto any future accession treaties unless longer waiting periods for free movement are indeed included. The next accession to the EU is at least four years away, probably more. So nothing really turns on the absence of agreement with the UK’s position for now.

Conclusion

The key point to remember about the renegotiation deal, particularly as regards EU immigration, is that it consists of different parts. The main deal takes the form of a Decision, which essentially clarifies EU law without amending it. According to CJEU case law (Rottmann), the Court is willing to take Decisions like these into account when interpreting EU law.

However, in the area of EU immigration, the other parts of the deal are more relevant: the intention to pass three new EU secondary laws. Those new laws will be a fully-fledged amendment to existing EU rules, not simply a clarification of it. While some points of detail remain to be worked out, it is clear from the deal that the Commission will make proposals in these areas, and all Member States (ie the Council) will support them. It remains to be seen whether the European Parliament will approve them, and whether the CJEU would accept challenges to their legality. My assessment of the Court’s likely response, as detailed above, is that the amendments on family members will probably be acceptable; the child benefit reforms are an open question; and the changes on in-work benefits are highly vulnerable. Of course, there’s no prior case law on these specific issues, and so we can’t be certain of the Court’s approach in advance.

Overall, as I concluded in the earlier post on the draft agreement, these changes, if they are all implemented as planned, will fall short of a fundamental change in the UK’s relationship with the EU. But equally it is clearly wrong to say that they mean nothing – if in fact they are implemented. The changes would be modest but significant: amendments to three key pieces of EU legislation that would for the first time roll back EU free movement law, not extend it. Leaving aside the calls for non-binding guidelines, there would be cutbacks in in-work benefits (albeit for a limited period), significantly more control on the admission of non-EU family members of EU citizens, and more limited export of child benefit.

Barnard & Peers: chapter 13

Photo credit: http://www.telegraph.co.uk
*Disclosure: I will be consulting for the European Parliament on the free movement aspects of the renegotiation. However, my advice will be fully independent; I don’t represent or advocate for the European Parliament (or anyone else) on these (or any other) issues.

Posted by Steve Peers at 01:35 15 comments:

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Labels: benefits, Brexit, child benefit, EU citizenship, EU referendum, EU reform, expulsion, family benefit, free movement of persons, tax credits, UK renegotiation

Thursday, 18 February 2016

Mutual trust – blind trust or general trust with exceptions? The CJEU hears key cases on the European Arrest Warrant

Henning Bang Fuglsang Madsen Sørensen, Associate Professor, Department of Law, University of Southern Denmark

Monday 15 February was a busy day in Luxembourg. The Court held a hearing in C-404/15, Aranyosi, which was lodged at the Court in July 2015. But the Court also received C-659/15, Caldararu, at 9 December 2015 under the ‘emergency’ PPU-procedure. The Court decided to join the two cases as they were submitted by the same court – Hanseatisches Oberlandesgericht in Bremen, Germany – and concerned the same issue – should surrender on a European Arrest Warrant be refused if there is reason to fear the wanted person will be exposed to inhumane prison conditions in the requesting state? So the hearing concerned both cases and it turned out to be a busy but also interesting day because the two cases touch upon the application of the principle of mutual recognition as the cornerstone of EU criminal law as recognized by recital 6 of the Framework Decision establishing the European Arrest Warrant.

During the day, the Court heard the submissions from the lawyers of Aranyosi and Caldararu, the referring judge from Bremen, 9 Member States (Germany, Ireland, Spain, France, Lithuania, Hungary, The Netherlands, Romania and UK) and of course the Commission.

But what was all the fuss about? Well, let us have a look at the two cases first. Then we will turn to the submissions of the Member States and the Commission.

The cases

Aranyosi is a young man, living with his parents in Bremen. He has a girlfriend in Germany, with whom he has a child. He was arrested in Bremen 14 January 2015 as Hungary had requested his surrender on a European Arrest Warrant. Aranyosi is suspected for two accounts of burglary. However, Aranyosi resisted the surrender, referring to reports from the Committee on the Prevention of Torture (CPT) and case law from the European Court of the Human Rights, which documented a massive over-crowding in Hungarian prisons to an extent that could be considered a violation of ECHR art. 3 (corresponding to Article 4 of the EU Charter of Fundamental Rights). The Bremen Court decided to ask the Luxembourg Court if it was possible to read article 1(3) of the EAW Framework Decision (the ‘human rights’ clause) as an opportunity to refuse the surrender in case of strong indications of detention conditions insufficient to satisfy ECHR art. 3. The Bremen Court also asked if it was possible to request assurances concerning the prison conditions from the requesting state before surrender was allowed. Due to Aranyosi’s connections with Bremen, the judge decided to release Aranyosi while the case was pending.

Caldararu is also a young man. He was sentenced to 8 months in prison by a court in Romania for driving without a driver’s license. The case was heard in absentia. However, Caldararu left Romania before the sentenced time could be served and Romania issued a European Arrest Warrant for Caldararu. He was arrested in Bremen, Germany, on 8 November 2015, and his surrender to Romania was then allowed on 20 November 2015. He refused however to consent to the surrender with reference to the detention conditions in Romania. The Bremen Court decided to keep Caldararu in custody as the Bremen Court also sent a request for a preliminary ruling in this case. The request was sent on 9 December 2015.

So, two cases from the same court, basically concerning the same question: Can a judge refuse surrender if it is feared that detention facilities in the requesting state are inadequate?

But the reply to these questions touches upon a number of arguments, and the day turned out to be very intense as these arguments involves fundamental rights, the principle of mutual recognition, the relationship between Member States and not least what to do if surrender is denied. The parties were far from a common understanding of how these arguments should be used, and the hearing turned out to be a very interesting and well-spent day in Luxembourg.

Let us have a look at some of the major arguments.

The first argument – mutual trust means blind trust!

One could argue that mutual trust means blind trust to such a degree that the executing Member State must execute the European Arrest Warrant without any checks for anything else other than the grounds for refusal to execute an EAW mentioned in Articles 3 and 4 of the Framework Decision (such as double jeopardy, or age of a child).

The Bremen judge of course opposed this view as this would make his request for a preliminary ruling obsolete.

Especially Spain supported this argument, saying that the evaluation of the protection of fundamental rights is a privilege for the court in the issuing State as the court in the executing State is not empowered to make abstract evaluations of the prison conditions in another Member State. The prior CJEU judgment inMelloni was mentioned as an example of a situation, where Spain was denied the possibility to make the surrender conditional upon specific guarantees. Spain had difficulties aligning the conclusions of Melloni with a possibility to make evaluations of foreign prison systems prior to deciding surrender and then perhaps condition the surrender on guarantees regarding detention conditions. Spain therefore held, that the executing State had to surrender unless Article 3 or 4 of the Framework Decision were applicable and it would then be for the courts of the requesting state to evaluate whether prison conditions would amount to a violation of ECHR art. 3 / Charter art. 4.

Lithuania presented a similar argument, arguing that the principle of mutual trust would fall apart if Member States were given the power to check each other in regard to prison conditions. Lithuania further referred to TEU art 7 (on the possible suspension of a Member State from the EU on human rights grounds) as the procedure prescribed by the treaties in case a Member State is found not to respect fundamental rights. Lithuania also expressed concern whether the issuing State would be able to make its arguments before the court in the executing State deemed the prison conditions in the issuing State insufficient in regards to fundamental rights, and it could lead to a situation where the issuing State would be denied the possibility to use the EAW as such. This would make it impossible to prosecute absconded criminals and would thus threaten the idea of AFSJ as such.

The remaining States together with the Commission were in opposition to Spain and Lithuania. The parties argued in general in favor of understanding mutual trust as a general trust in opposition to a blind trust. The Bremen judge reported his difficulties when reading about the prison conditions in Hungary, and how he had asked the German Government in vain to obtain guarantees concerning the prison conditions for Aranyosi. He argued that it would be unacceptable to demand that a judge should ignore obvious reasons to fear for violations of fundamental rights and the possibility of denying the execution of the EAW had to be present in such a situation. Being a judge himself, he called upon the Luxembourg judges not to put this burden on him.

The German Government along with Ireland, France, Hungary, The Netherlands, Romania, UK and the Commission presented various arguments in favor of understanding mutual trust as a general trust which only is rebuttable in very exceptional circumstances.

Germany argued that the executing state cannot be making assessments of the respect for fundamental rights in other Member States, except when under very exceptional circumstances. Such circumstances could be several reports from the Council of Europe, CPT, judgements from the ECtHR, reports from NGOs and even from the American Secretary of State. Germany further read recital 13 in the preamble together with art. 1(3) of the EU Framework Decision in such a way that a risk of violation of fundamental rights is a general reason for denying execution of the EAW in supplement to the specific reasons mentioned in Articles 3 and 4 of the law. Ireland supported this argument with a reference to recital 12, while Hungary supported the argument with reference to recital 10. The UK also argued in favor of reference also to recitals 5 and 6, together with recital 10, 12 and 13 and Article 1(2) and 1(3).

The Commission argued for the need of a balance between mutual trust and the protection of fundamental rights, requiring Member States to have a general trust in each other with a possibility to test the protection of fundamental rights if there seems to be a real risk for a violation of fundamental rights. The Commission found support for this in Art. 19(2) of the Charter (non-removal from a Member State to face torture et al), as the Commission supported the Bremen judge by finding it unacceptable to force a Member State to surrender to a known risk of violation of fundamental rights without taking action to protect fundamental rights. The Commission further stressed that if the principle of mutual recognition would prevail over the protection of fundamental rights, then a principle had been given more weight than fundamental rights. Fundamental rights, being a part of primary law and the reason for the Union as such, could not be set aside by a general principle within EU law.

When is the obligation to examine a potential risk triggered?

If detention facilities in the requesting Member State may be examined prior to the decision of surrender, then how much is needed for triggering such an examination?

The main question was whether an examination should be accepted only in case of systemic failures in the requesting state or whether an individual risk concerning the specific person should be enough. The first situation, where an examination only is acceptable in cases of systemic failures, correspond to the conclusions of the Luxembourg Court in the cases of N.S. (on the Dublin system in Greece). andMelloni, and also paragraphs 191-194 of Opinion 2/13 (on ECHR accession). The second situation corresponds to the conclusion of ECtHR in Soering (on extradition to ‘death row’ in the USA).

Germany, UK and The Netherlands argued in favor of the individual approach, exemplified by a person who may be kept under harsh detention conditions due to religion or sexual orientation. Ireland argued together with France, Romania and Hungary in favor of the systemic approach, and also stressing that the threshold that has to be met had to be set rather high in respect for the principle of mutual trust. Spain argued against both approaches, as Spain found the examination to be directed against the detention facilities of the requesting state and as such not covered by any of the terms. Lithuania referred to art 7 TEU as the correct method to handle suspicions concerning violation of fundamental rights in a Member State, and concluded on this basis that the examination conducted in the executing Member State should be limited to an examination of whether or not art. 7 had been activated in regards to the issuing Member State.

The Commission found it relevant to initiate an investigation if an individual risk were present.

The parties were thus split in half on the question of whether an examination was allowed only in case of systemic failures or whether the examination should be allowed based on the individual risk of the person wanted for surrender. The submissions of the Member States were however also influenced by the question of what to do if the examination leads to the conclusion of a present and relevant risk in case of surrender – should the requesting state be given the opportunity to eliminate the found risk through guarantees or should the surrender be conditioned upon guarantees? The position of the Member States on this issue will be reported below. First, we must turn our attention to how the Member States would examine a real and present danger of a violation of a fundamental right in case surrender is allowed.

How will the Member States examine a claimed risk of violation of fundamental rights?

The problem of how a court in one Member State can obtain information on the detention system in another Member State in order to establish whether or not these detention facilities may be seen as a violation of fundamental rights were also included in the submissions of the parties.

Germany referred to reports from the CPT and the Council of Europe, together with the case law of the ECtHR, reports from NGOs and even the American Secretary of State. Germany stressed that these sources had to be published within a reasonably short time before the national court was to decide on the question of surrender. The UK also supported the use of reports from international organs, the case law of the ECtHR, individual claims and testimonies and reports from national experts. Ireland and The Netherlands also argued for the use of reports from the CPT and the case law of the ECtHR, while France considered especially the case law of the ECtHR as relevant. Hungary elaborated on the fact that reports from the CPT are at least one year underway, while a judgement of the ECtHR refer to facts as they were at the time of the claimed violation. That could be several years prior to the judgement were handed down. These sources thus had to be used with great care.

Romania did not elaborate on the question of how to make an examination. Also Spain and Lithuania opposed the general idea of letting foreign courts examine domestic prison conditions, but did not elaborate on how this may be done in case the Luxembourg Court would allow it.

The Commission supported the use of the case law of ECtHR, reports from international organisations, statistics on the over-crowding of prisons in the requesting State and even any other relevant source. The Commission was thus in line with especially Germany and UK.


The importance of dialogue between Member States – the concept of guarantees

Several parties stressed the importance of dialogue between the requesting Member State and the executing Member States.

The Bremen judge, Germany and France argued in favour of giving the judge of the court in the executing Member State the possibility to call for guarantees from the issuing Member State. The guarantees would be able to remove the fear for a violation of fundamental rights, and the surrender should therefore be denied if the required guarantees were not provided.

Ireland and The Netherlands found no basis for refusing to surrender due to the lack of diplomatic guarantees. The executing Member State had to make its mind up whether or not there would be a real and present risk for a violation of fundamental rights and handle the request for surrender in accordance with this.

Spain argued against the use of guarantees, as the judge calling for the guarantees may be setting the criteria that has to be met before he or she will allow surrender. This would generate a risk of huge variations in the way the Member States use this possibility, and would therefore threaten the uniformity of Union Law. Lithuania also argued against the use of guarantees by elaborating on the fact that the guarantee is not worth much if the requesting Member State decides not to fulfill its obligations in accordance with the guarantee after the surrender has taken place.

Especially Hungary stressed the importance of Article 15(2) of the Framework Decision. If a Member State is afraid of surrendering due to the fear of violation of fundamental rights, then the two involved states must engage in a dialogue for the purpose of removing the reasons for this fear. Hungary saw the risk of violations as a specific and concrete problem, which could be handled with specific and concrete solutions. Such solutions could be alternative detention measures, a decision to keep the surrendered person in custody in another prison or perhaps show the executing court that the reasons are obsolete due to for instance the constructions of new prisons following e.g. a judgment from the ECtHR. This line of arguments was supported by the UK as well as Ireland and The Netherlands. These arguments were also supported by Romania by stating that the risk for a violation of fundamental rights may be real and present but nevertheless possible to eliminate in the specific case. The Commission also supported this view.

Especially Romania also raised another issue concerning equal treatment, as Romania mentioned that if certain inmates where kept under custody under more beneficial conditions due to guarantees while other inmates were kept in custody under normal conditions. Romania pointed to the simple fact that if prisoners with guarantees were to be given more space, then the remaining prisoners would have even less space. This motivated the referring judge to ask Romania, Germany and France to elaborate on this risk concerning unequal treatment. Romania found this risk to be non-acceptable, while France argued that the risk of unequal treatment were a less evil than the risk of violating fundamental rights. Germany stated, that Germany did not want unequal treatment, but appropriate prison conditions. The risk of unequal treatment was however the only way to respect the Soeringjudgment of the ECtHR.

Thus, there were different views on whether surrender could be conditioned upon guarantees or whether guarantees should be seen more as a dialogue comforting the executing judge in the removal of a risk of violation of fundamental rights. However, there seemed to be general consensus when it came to how guaranties should be issued, as the parties found this should be regulated in national law of the specific Member State.

The consequence of denying surrender

The last major issue touched upon by the parties was the question of what should happen if surrender were refused.

The Bremen judge explained how German law made it possible to let Germany continue the criminal proceedings if surrender was denied, but practical problems in regards to witnesses etc. made this theoretical possibility an illusion in real life. In regards to Aranyosi, a decision not to surrender would therefore in real life also be decision to discontinue the criminal proceedings. In regards to Caldararu, who was sentenced in Romania, a decision to not surrender could provide the basis for letting Caldararu serve the sentence in Germany, but this would also result in a number of practical problems as Caldararu only had stayed a very short time in Germany. He therefore does not speak the language nor would any initiatives to rehabilitate him into the German society have any likelihood for success.  So it was also questionable whether it would be relevant to transfer the sentence to Germany in the present case. The Bremen judge made it clear that it would not be satisfactory if a denial to surrender the sought person would mean crimes would go unpunished.

The German government shared this view, while France noted that it was for each Member State to decide whether they would let their courts have jurisdiction in cases in which surrender had been denied. Romania also made it clear, that it would be unacceptable if criminal activities were going un-punished because of a decision to deny surrender. If the executing Member State denies surrender, then the executing Member State must bear the responsibility to see justice fulfilled. Lithuania pointed to the fact that a decision not to surrender due to unsatisfactory detention facilities would in practice create areas within the AFSJ it which it would be impossible to punish crimes as the criminals would be able to commit their crimes in such areas and then flee to other parts of the AFSJ without risking surrendering afterwards.

A number of parties also underscored this as the major difference between asylum law and the test used in the N.S. case against criminal law and the test that may be used in the present cases. If the return of an asylum seeker is impossible, then the Member State in which the asylum seeker is at the moment will be able to process the application for asylum. It is of lesser importance for the asylum seeker whether one or the other Member State processes the application for asylum as asylum law is almost fully harmonized. The consequence of not surrendering a suspect in a criminal case could very well be that crimes would go unpunished, which is a rather different result and of course not acceptable.

What next?

The Advocate General promised to announce within 24 hours when his opinion will be submitted to the Court. The cases were heard on 15 February 2016 but the Curia-webpage still do not contain any new information by the end of the 17 February 2016. Nonetheless, Caldararu is a PPU-case as Caldararu is kept in custody, and we must therefore expect the opinion of the general advocate within few days. The decision of the Court will then be expected within a few weeks or perhaps a month, so the excitement will soon be released.

It seems apparent that especially Spain and Lithuania were very skeptical as to whether one Member State should be allowed to examine the detention facilities in another Member State at all. The other seven Member States seemed to find it appropriate to have the possibility in very exceptional circumstances. France, Romania and Hungary seemed to limit the possibility to cases with systemic problems, while the remaining Member States also wanted to be able to conduct an examination in cases with individual problems. Germany wanted to let the executing Member State demand guarantees from the issuing Member State so surrender could be denied if the requested guarantees were not delivered. The remaining Member States seemed to agree that the two Member States had to engage in a dialogue to establish whether there was a problem in the specific case at all and whether a problem could be solved by for instance alternative detention measures. It is also worth noticing the position of the Commission as a rather pragmatic approach, where the Commission supported the need to make investigations in even individual cases, using a variety of sources.

INFORMAL MEETING OF MINISTERS OF JUSTICE AND HOME AFFAIRS

Amsterdam, 25th – 26th January 2016

PROGRAMME (version 21-1-2016)

Monday January 25   Home Affairs and Migration

09.00 – 10.45   Session I Home Affairs, Security (Counterterrorism)
11.15 – 12.15   Session II Home Affairs, Security (Counterterrorism)
12.15 – 12.30  Session III Home Affairs, Security (presentation cyber security)
13.00 – 14.30   Working lunch (EU and COMIX Ministers Home Affairs and Migration only)
14.30 – 16.00   Session IV Migration
16.30 – 17.30   Continuation session IV Migration
17.45 – 18.30   Press conference

Tuesday January 26 Justice

08.15 – 09.15   Breakfast ECRIS (Ministers of Justice only)
09.30 – 11.00   Session V Cybercrime (jurisdiction)
11.00 – 11.30   Family photo and coffee break
11.30 – 12.35   Continuation session V Justice Cybercrime (jurisdiction)
12.35 – 12.45  Presentation by European Commission proposals contract law and insolvency
13.00 – 14.30 Working lunch on the European Forensic Science Area
14.45 – 15.15   Press conference

PAPERS FOR DISCUSSION

Discussion Paper European Border and Coast Guard

In order to have an area without internal border controls within the Schengen area, an efficient and well-functioning control of the external borders of the Schengen area is essential.
The control by each Schengen Member State and Associated State of its parts of these external borders is not only in the interest of that Member State (MS), but in the interest of all.
Border control is necessary to prevent illegal immigration and crossing of the borders by persons who pose a threat to the public order or security of MS or the Schengen area.
Our citizens expect us to carry out this task, and will lose their confidence in Schengen if we don’t. MS are not only controlling their external borders in their own interest, but in the interest of all EU citizens.
Since the conclusion of the Schengen Treaty in 1985, the Schengen States (and later the EU) have worked on a broad range of legislative and policy instruments with the goal of creating common rules (Schengen Borders Code), common practices (Frontex, Schengen Evaluation Mechanism) and common tools (SIS, VIS, Eurosur) for managing the external borders.

The Integrated Border Management (IBM) concept has been a leading principle when developing these new instruments.
A true Integrated Border Management requires cooperation and genuine solidarity and sharing of responsibility among MS, which is reflected at EU level by the creation of Frontex in 2004 and funding possibilities under the Internal Security Fund.
Solidarity however comes with responsibility.
The main and final responsibility for border management is with the MS. Until now, this has worked relatively well in the ‘normal’ situation which we have experienced most of the time since the Schengen area was created.

Since last summer we are facing a different situation.
The constantly increasing pressure of (irregular) migration at the EU’s external border and present security threats within and outside the EU have shown that the existing border management tools are not sufficient to guarantee an efficient integrated border management. This puts the question on the table of what should be done to change the concept in a way to equip the EU and Schengen to counter these challenges effectively.
On 15 October 2015 the European Council set out clear political guidance to strengthen the EU external borders, especially in emergency situations. The European Council concluded that this must be done by enhancing the mandate of Frontex in the context of discussions over the development of a European Border and Coast Guard System.
On 15 December 2015 the European Commission presented its “border management package”, which contains a Communication on a European Border and Coast Guard and effective management of Europe’s external borders associated with a number of proposals and measures, including in particular the proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard.

The proposal is the main element in the Commissions’ response to address the current situation and aims at making border management more effective, reliable and to enable the EU to intervene to prevent and resolve crises, by proposing a new framework for border management.
The proposal does not replace the national border guards, but puts them within this new framework in order to achieve a more integrated management of Europe’s external borders, as foreseen by Art. 77(2)(d) TFEU.
The proposal lays down the general principles of genuine European integrated border management (IBM). It establishes a European Border and Coast Guard, with a strengthened agency, named the European Border and Coast Guard Agency, being a key player in the system.
With the establishment of the European Border and Coast Guard, the IBM becomes a shared responsibility of the Agency and the national authorities responsible for border management, as proposed in the European Agenda on Migration and the European Agenda on Security.
The Netherlands Presidency is convinced of the importance of this file and reiterates the conclusion of the European Council of 17 December 2015, stating that a Council position on the proposal on a European Border and Coast Guard should be adopted under the Netherlands Presidency.
With a view to fulfilling this task given by the European leaders, it is suggested that the file is discussed during the informal meeting of JHA ministers in order to give a political steer to expert work at the Council on the below main elements of the Commissions’ proposal, in relation to situations requiring urgent actions on the external borders.
 

  1. Defnition of the European integrated border management (IBM) concept in the proposal for a Regulation, and introduction of the principle of ‘shared responsibility’

A European Border and Coast Guard is set up bringing together the European Border and Coast Guard Agency and the MS authorities responsible for border management.
The national coastguard authorities are also part of the EU Border and Coast Guard in so far as they perform maritime border surveillance. The European Border and Coast Guard will ensure the full and coherent implementation of the European IBM.
The national border guard authorities will continue performing their regular functions on a daily basis at national level. However, in exceptional situations, the European Border and Coast Guard Agency will have a capacity to act in order to ensure the protections of the affected sections of the external border.
In this context, the MS will have the obligation to make available a certain percentage of their border guards to be deployed by the Agency. MS are also required to register in the Agency’s technical equipment pool. Furthermore, to ensure the implementation of the European IBM, the mandate of the Agency is strengthened.

Questions:

  1. What is needed to effectively protect our external borders, including security aspects and screening?
  2. Do you agree that the European Border and Coast Guard (European Border and Coast Guard Agency and MS authorities) should carry a ‘shared responsibility’ for implementing the EU IBM as proposed?
  3. Do you agree that the principle of ‘shared responsibility’ should bring the obligation for MS to contribute a certain percentage to a pool of officers and to a pool of equipment in order to bring the Agency in the position to act more pro-actively, flexible and effective?

 

  1. The introduction of a vulnerability assessment

In parallel to the ‘stress test’ in the Banking Union, the Commission proposes a system to ensure that the European Border and Coast Guard has the capacity and means to be ready to face challenges at the external borders. The Agency will have the mandate to carry out a vulnerability assessment in order to assess the capacity of MS to face challenges at their external borders, including by means of an assessment of the equipment and resources of MS as well as of their contingency planning.

On the basis of this assessment the Agency will identify and decide on measures that need to be taken by the MS. This decision will be binding. In case a MS concerned fails to act, the mater will be referred to the management board of the Agency.

Questions:

  1. Do you agree that a vulnerability assessment should be carried out in order to ensure that a MS and/or the European Border and Coast Guard is ready to face upcoming challenges at the external borders? Should the Agency carry out this assessment on its own or should MS be involved?
  2. Do you agree that this assessment could lead to a decision by the Executive Director of the Agency and, where necessary, a further decision by the Management Board of the Agency, with regard to the Member State concerned to take corrective measures concerning technical equipment, systems, capabilities, resources and contingency plans? Should this decision be binding?
  1. The right to intervene in case of a situation at the external border requiring urgent action

The Commission proposes a new procedure to address deficiencies rendering the control of the external borders ineffective to such an extent that it risks putting in jeopardy the functioning of the Schengen area.
This procedure can be applied in case a MS has not taken corrective measures decided by the Management Board of the Agency, or in case of disproportionate migratory pressure at the external border.
The Commission can adopt an implementing decision providing for measures such as for example organizing rapid border interventions and deploying European Border and Coast Guard Teams. The Member State concerned is required to comply with the Commission decision and cooperate with the Agency for that purpose.
This applies even when there is no request from a Member State for assistance; however, the operational plan of the operation will have to be drawn up in cooperation with the MS concerned.

Questions:

  1. What remedies/measures should be taken regarding the Member States concerned in the situations referred to?
  2. Can Member States agree to a solution based on the proposal made by the Commission in order to prevent a situation meant in article 26 Schengen Borders Code?
  3. What should be the role of the Council in that situation?

 

Discussion Paper on counterterrorism

Information exchange on foreign terrorist fighters, firearms and precursors

Over the last decade the EU and its Member States, European and international bodies, have made much effort at the political, legal and operational level to improve information exchange on counterterrorism. In recent years the foreign terrorist fighters issue has been a particular focus. Member States have committed themselves several times to increasing the exchange of information.

Recent events and terrorist attacks as well as statistics on input of information in the various systems on EU-level have led us to conclude that there still is room for improvement in effective information exchange between our competent authorities and with European or international bodies. Two dimensions are essential to reach this: quantity, but also quality of information (contextual information concerning foreign fighters and their support networks especially), in order to identify new lines of investigation and to help prevent terrorist attacks and counteract related activities.

A high level of combined expertise and a correct and uniform (standardized) application of systems is crucial. Any challenges and obstacles that still prevent an effective and comprehensive practice must now be eliminated. Whether these lie at political, legal, operational or technical level, concrete and tangible steps must be taken to better facilitate our national competent authorities and European or international bodies.
This includes the exchange of information between security services and their respective national law enforcement services, between migration and law enforcement services, or between law enforcement and customs authorities.
The Presidency would like to discuss 1 the remaining underlying obstacles for information exchange on foreign terrorist fighters and ways forward to clear these obstacles, along the lines of the following questions:

  1. Given the specific safeguards in the handling of information (such as privacy considerations, source protection) which obstacles do you encounter in the exchange of information between national counterterrorism actors in your country and how does this affect co-operation and information exchange from your country with other European partners?
  2. Would you qualify defining common measurable deliverables for input into European systems as necessary in order to achieve an effective practice?
  3. What kind of common standards do you consider useful to improve the exchange of actionable information? Examples are timing, quality and additional background information. In which way could investments in collaboration and trust, or secure ICT solutions, support further improvement on current exchange practices? Which additional actions would you like to propose?
  4. Would you qualify a uniform (standardized) approach to the implementation and use of detection and signalling systems (such as the SISII, Interpol diffusions) as a vital element in stopping foreign terrorist fighters? In your experience, how are competent authorities best aided in acting upon the alerts entered into or resulting from such detection and signaling systems? In which way could the implementation or use be improved?

 

Another issue that will be addressed is information sharing between Member States on firearms and explosives precursors.

The revision of the firearms directive aims to establish a stricter regime for (the sale and purchase of) firearms and a more uniform practice within the EU.
Illegal arms trade, including via the internet, is the next target-area for EU Member States in partnership with Europol’s Counter Terrorism Centre. National law enforcement agencies have stepped up their intra-EU cooperation and shared more information on their national law enforcement efforts to combat the flow of illegal arms. This includes improved information sharing between organized crime and CT investigations. We have to look for further improvements.
Currently, information sharing on explosives precursors with a (possible) international dimension is ad hoc and limited.

This is especially problematic for online trade: it is of key importance that suspicious behaviour is immediately reported to the country of delivery (and not only the country where the internet company is established).The effect and value of the existing reporting structures on these suspicious transactions of explosives precursors can be strengthened by organizing information sharing between the national contact points. Other ways to alter this situation is to organize information sharing on licenses, as well as inspection and law enforcement practices.
This is especially relevant for customs authorities, so that they can properly check parcels and where appropriate passengers. In this regard, cooperation on national level among all stakeholders involved, including customs authorities and border guards, is important.

  1. In addressing better information sharing on firearms and explosives precursors, which capability gaps do you perceive, if any?
  2. Would an EU reporting structure be helpful to prevent the use of precursors for explosives, also in view of informing foreign law enforcement authorities in time? Please elaborate.

Comprehensive local approach

Terrorist organizations target urban areas in an effort to destabilize European society. As recent attacks in Europe have shown, some of the terrorists executing these atrocities, grew up in these cities. Law enforcement agencies and intelligence services work around the clock to prevent threats to national security and track down terrorists.
National and local authorities are combating these terrorist groups and the dissemination of their violent ideas and are trying to prevent the growth of new adherents.
In many EU Member States local authorities are the first line of defence in countering violent extremism. During this informal JHA Ministerial meeting we want to focus on the importance of local approaches as part of national CT-strategies and discuss how we can strengthen them within the EU.
Most of the local approaches in place center around the premise that combating terrorism and preventing radicalization is best addressed throughout a targeted strategy in which national and local authorities are partners. Goals of a local approach can be to strengthen the resilience of communities in cooperation with e.g. schools and social networks, to invest in risk assessments and early warning mechanisms and to create possible intervention tools.
These interventions can vary from multidisciplinary case-management to an administrative, a criminal justice or an intelligence measure.
In every scenario a solid information position and information sharing is crucial. This also concerns a sustainable and active relationship with the local communities. Local governments are addressing many dilemmas while developing these strategies.

We would like to address the following questions:

  1. Does your national CT strategy include a local approach? What are the main characteristics of your local approach? Do you have best practices to share with other Member States? Do you encounter challenges in developing an efective local approach?
  2. Would you asses a local approach to be most efective when it is multidisciplinary, and contains ‘preventive’ and ‘repressive’ measures? If so, which local partners should be included in a local approach?
  3. How can Member States share information, experience and best practices about a local approach? Do you need EU support (for example through the Radicalization Awareness Network Centre of Excellence) to further implement a local approach and, if so, what kind of support?

 Discussion Paper on tackling cybercrime

The criminal use of cyberspace

Cyberspace is borderless. Information flows freely between countries providing citizens and organisations almost unlimited access to information and digital services. Information is everywhere; the physical location of the servers on which it is stored is often not known and deemed irrelevant to users.
Information can be stored, changed and deleted, and internet services can be used from anywhere in the world. Cyberspace has grown into an essential element of modern life.
The protection of cyberspace from incidents, malicious activities and misuse has become crucial for the functioning of our societies and economies.
The borderless nature of cyberspace poses special challenges and opportunities for law enforcement and judicial authorities. Important information for law enforcement and judicial authorities, such as electronic evidence, can also be stored, changed and deleted in seconds.
It can be stored in one country by criminals located in another country, and moved when they suspect law enforcement is catching up to them. The current procedures for mutual legal assistance (MLA) are complex, time consuming, and not adapted to the requirements of cyber investigations leaving law enforcement and juridical authorities far behind technically capable criminals. When criminals hide the location of their activities and identities with technical methods these MLA procedures become inadequate. In those cases it is not even known which country to request assistance from. Law enforcement agencies often rely on internet service providers to provide e-evidence. However, the laws for obtaining e-evidence are not identical in all countries. Internet service providers themselves, who are mostly willing to cooperate with law enforcement and judicial authorities if legally required, open have to cross borders to retrieve information, making it possible to violate laws in one country simply by complying in another.
Criminals know law enforcement and judicial authorities struggles to cope with these issues and they exploit these. They use technical means to hide their identity and move their criminal activity between countries, using the snail’s pace of existing procedures to their advantage. They also often know which countries do not have the necessary legal framework, capability or legal assistance processes in place to fight them effectively. They can use these countries as safe havens for their criminal activities. By effectively evading the rule of law they enjoy an impunity that is unacceptable.

European action

The EU has recognized the challenge cyber criminality poses and has acted accordingly. Almost all Member States are party to the Budapest Convention on Cybercrime, providing a baseline for tackling cybercrime and for enhanced cooperation across borders. Europol and Eurojust have stepped up to the challenge of enhancing international cooperation both between Member States and with third countries.
The European Cyber Crime Centre (EC3) has evolved into a vital hub for international cybercrime investigations. Several Joint Investigation Teams were successful and the efficiency of legal assistance procedures has increased.
The implementation of the European Directive regarding the European Investigation Order  in criminal matters will further improve cooperation between member states also for cyber investigations.

Remaining challenges

Unfortunately, some challenges remain unaddressed. Criminals who are technically capable or hide in countries with limited law enforcement capabilities against cybercrime are well able to evade prosecution.
Cyberspace still gives criminals the opportunity to make large gains with little risk and technically advanced criminals can find a safe have in cyberspace.

Two types of situations remain especially challenging:

1. Mutual legal assistance is not possible because the location of information or the origin of a cyber-attack is not known.
Various effective ways to hide information about the location of information and activities have been developed and some hosting providers offer hosting in countries of choice, allowing criminals to choose countries with limited law enforcement capabilities. This is called “bullet proof hosting”. These hosts promise their clients not to log their activities and to inform them when law enforcement and judicial agencies are requesting their data. Criminals use these hosters to store stolen data, including credit card information, data for botnet herding or child abuse images in those countries. Dedicated communication servers are another example.

Criminals can use their own enterprise server to direct their communications while applying strong encryption techniques. Eavesdropping is not effective because of the encryption, and data from the server cannot be obtained, because it is located in the criminal’s country of choice. There seems to be a lively trade in these kind of servers.
TOR and I2P techniques are a third example. Although these techniques of course also allow for legal use most TOR and I2P traffic is of a criminal nature, in particular the trade in drugs and weapons and the spread of child abuse images. Identifying criminals, both buyers and sellers, is often not possible and many criminals are untouchable.

In these situations mutual legal assistance is not possible, no matter how efficient procedures are. In these circumstances, stopping a cyber-attack or acquiring e-evidence could violate the sovereignty of another country. In most cases this is not allowed under international law. MLA can also be impossible for other reasons.
For example, the countries involved could have only limited relations or be involved in diplomatic issues.

Second, legal differences could limit the possibilities for assistance. Investigative powers can differ, or the dual criminality requirement might not be met.

Third, the country could lack effective capabilities for handling cybercrime and mutual legal assistance requests.

Fourth, criminals move their activities to other countries either regularly or when they suspect they are being investigated by law enforcement and judicial authorities, staying ahead of these agencies due to slow MLA procedures. These examples often involve countries outside the EU.

  1. Conflicting regulations hamper cooperation with private parties.

Internet service providers, especially those providing cloud computing services, often do not store information about clients and their activities in the countries where those clients are. Those private companies may even be established in one country while also providing their services in other countries.
Suspects of criminal investigations can be located in one country while information about them is in another. It can be necessary for law enforcement and judicial authorities to request information physically stored in another country. For internet service providers, differences in regulations can become an obstacle for cooperation. Complying with a request for data in one country could imply breaking the law in the other.
In situations as described in the above, the investigation and any further action taken against cybercrime comes to a halt.

These challenges cannot be resolved by further improving cooperation.
The European Agenda on Security (Doc. 8293/15)  recognises that this state of affairs is unacceptable and prioritises “reviewing the obstacles to criminal investigations on cybercrime, notably on issues of competent jurisdiction and rules on access to evidence and information”.

Common interest: the security of cyberspace

The security of cyberspace is of common interest to law enforcement and judicial authorities, citizens, private organisations and other parts of government. Solutions for these challenges should therefore take into account interests of all these parties.
Law enforcement and judicial authorities are charged with upholding the rule of law within the appropriate legal framework, also in cyberspace.
People and businesses should be protected against crime.
A secure internet is vital to society. Law enforcement and judicial authorities should be given the ability to improve that security for social and economic activities and to counter crime.
The legal framework should provide law enforcement and judicial authorities with the powers necessary to perform their duties effectively.
At the same time, the investigative powers they hold can intrude into private lives and business processes. Everyone should be confident that law enforcement and judicial authorities will only use their investigative powers under strict conditions, their use being lawful, necessary and proportionate and subject to proper procedural safeguards.

Proper regulation and transparency about the use of investigative powers are essential for people and businesses to trust the law enforcement and judicial authorities and for their trust in cyberspace being safe and secure.

  1. Do we need alternative approaches (e.g. legal or other instruments) for situations when mutual legal assistance is not possible?
  2. Which alternatives would you propose?
  3. Conflicting national and international regulations regarding e-evidence hamper cooperation with private parties. Should we develop a common approach to tackle this issue?
  4. Which elements should be part of such a common approach?
  1. Private enterprises are often valuable partners in the fight against cybercrime.

The private sector not only has the information necessary to solve individual cases because of their control of applications on the internet but also has valuable knowledge about cyberspace and the possibilities it provides for effective investigation. So as to ensure that the cooperation with private partners remains constructive, clear regulations and points of contact are required. Moreover, the issue of conflicting regulations should be addressed.

EU process

Following the adoption of the EU Agenda on Security, valuable contributions were made to the debate on jurisdiction in cyberspace during Luxembourg’s EU presidency term.
The current paper serves as a basis for an informal discussion at the ministerial level during their EU presidency term. Current practices in joint cybercrime operations are set to be evaluated through EMPACT. This is to be followed up on by an expert-level conference to build on the insights gained thus far.
The results will thereafter be discussed by COSI and CATS, possibly leading to the development of a further programme of action.
In the light of the above, ministers are invited to discuss the following questions2:

  1. Do you support the development of a common view on jurisdiction in cyberspace in addition to improving operational cooperation?
  2. Which issues do you think could be addressed in that respect and what is your view on those issues?

Discussion Paper on the European Forensic Science Area 2020 (Lunch meeting Ministers of Justice, 26 January 2016)

Introduction

Forensic evidence is increasingly important in criminal matters. Since crime goes beyond national borders, there is also a growing need for Member States to exchange forensic evidence. At present it is all too often the case that public prosecutors and judges are unable to use forensic evidence from another Member State because they do not have sufficient knowledge about how the investigation was carried out or whether it was up to standards.
The exchange of forensic evidence could be streamlined by creating a European Forensic Science Area. This would be an area in which the procedures of the providers of forensic services in the Member States would be better coordinated and the quality of investigations would be brought to an acceptable level.
This will build confidence and encourage cooperation in the field of law enforcement and prosecution.
On 13 and 14 December 2011 the Council (Justice and Home Affairs) approved conclusions regarding the realisation of a European Forensic Science Area by 2020 1.
In its conclusions of 15 and 16 June 2015 2 on the renewed Internal Security Strategy 2015-2020, the Council (Justice and Home Affairs) emphasised the importance of a European Forensic Area for law enforcement and prosecution: ‘Law enforcement and judicial authorities must be confident that the forensic data they rely on is of high quality, including if the data comes from another Member State. It is therefore important to ensure that the forensic data exchanged through information exchange systems, such as the Prüm framework for fingerprints and DNA profiles, can be effectively used in court.’
Notwithstanding differences of opinion, however, about the way in which a European Forensic Science Area can best be achieved, replies to a questionnaire issued in June 2015 show that Member States continue to underline the importance thereof.
The demand for forensic research continues to grow, especially with the growing power of technology. The available budgets for forensic research are nevertheless under pressure in many Member States.

The aim of creating and developing a European Forensic Science Area is to enable the mutual exchange of knowledge and expertise. In the longer term it may even be possible for the Member States to share capacities: It would then no longer be necessary for each Member State to have its own top-level expertise ‘in-house’ for every area of forensic expertise; as a consequence, the financial and technical burdens could be shared between them.
In order to cooperate well in the field of forensics it is essential to invest in quality.
In this regard an important contribution could be made by the objectives stated in the Council’s Conclusions of 2011 such as the accreditation of forensic science institutes, respect for minimum competence criteria for forensic science personnel, and minimum quality standards for scene-of-crime investigations.
In the short term an investment in quality could focus on the following objectives:
–    developing best practice manuals and proficiency tests 3 for all areas of forensic expertise;
–    developing courses to increase forensic awareness among the law enforcement and justice community;
–    encouraging the exchange of forensic data from databases.

  1. Do you think that ENFSI should be given a greater role in the further elaboration of the details of some of the Council’s Conclusions of 2011 by being a European centre of expertise in the field of forensic research and could it contribute to the gradual realisation of the objectives set out in those conclusions?
  2. If not, why not? If so, do you have any suggestions on ENFSI’s role of governance?
  3. The knowledge and expertise built up by the European Network of Forensic Science Institutes (ENFSI) could be put to good use in achieving these objectives. Several countries have already indicated in their replies to the questionnaire that they envisage a greater role for ENFSI.

Cooperation with ENFSI could therefore be encouraged. Cooperation could also be sought with CEPOL (the European Police College) in relation to forensic awareness courses.

Discussion

The ministers will be asked to answer 4 the following questions concerning the further development of the European Forensic Science Area:

  1. The exchange of DNA profles and fnger-prints in the EU by linking databases has been very successful. Would you also like to encourage the linking of national databases covering other forensic data?
  2. If so, for which areas of expertise (e.g. weapons and ammunition or drugs)?
  3. In your opinion, will the development and use of best practice manuals, profciency tests and forensic awareness courses contribute to the European Forensic Science Area in the short term?
  4. If so, which issues should have the highest priority?

NOTES

1 htp://www.consilium.europa.eu/uedocs/cms_data/docs/ pressdata/en/jha/126875.pdf
2 htp://ec.europa.eu/dgs/home-afairs/e-library/documents/ basic-documents/docs/eu_agenda_on_security_en.pdf
3 Proficiency testing determines the performance of individual laboratories for specific tests or measurements and is used to monitor laboratories’ continuing performance.

Some notes on the relations between UNSC Resolution 2240 (2015) fighting smugglers in Mediterranean and the EUNAVFOR Med “Sophia” operation

by Isabella Mercone  (Free Group Trainee – Original Version in Italian)

  1. INTRODUCTION

On 9 October 2015, the Security Council of the United Nations adopted Resolution 2240 (2015), authorizing Member States to intercept vessels off  Libyan coast, suspected of migrant smuggling.

The resolution was adopted in a short time, without much discussion and ahead of schedule, with 14 votes in favour and just one abstention (Venezuela). “Incredible!” – Someone could say – “For once, the Security Council succeeded in adopting a resolution on time.” However, the true is that the adopted resolution is not the one imagined in May by the High Representative for Foreign Affairs and Security Policy of the European Union, Federica Mogherini, when operation EUNAVFOR Med was launched. But let’s go one step at a time: let’s see first where the idea of ​​EUNAVFOR Med came from and what is its goal, and let’s try to understand why the EU should have required a resolution by the Security Council, allowing it to intervene in the Mediterranean and dismantle the smuggling of migrants.

  1. THE OPERATION EUNAVFOR MED (now renamed “SOPHIA”)

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EU CITIZENS’ ACCESS TO BENEFITS: THE CJEU CLARIFIES THE POSITION OF FORMER WORKERS

Published on EU LAW ANALYSIS on Tuesday, 15 September 2015

by Steve Peers

Today’s CJEU judgment in Alimanovic clarifies again the meaning of the EU law rules on the thorny issue of EU citizens’ access to benefits in another Member State. Like last year’s judgment in Dano (discussed here), it takes a more restrictive approach than suggested by the Court’s prior case law. However, like that prior judgment, today’s ruling leaves some issues open. I will discuss in turn the judgment itself, the impact on EU citizens’ access to benefits, and the UK government’s plans to renegotiate the country’s EU membership.

As a starting point, on the issue of EU citizens’ access to benefits, it is important to make distinctions as regards three issues: (a) the status of the person applying for the benefit ((i) not economically active; (ii) first-time job-seeker in the host State; (iii) previously employed in the host State; (iv) currently in work; (v) permanent resident); (b) the type of benefit at issue (social assistance, or concerning access to the labour market); and (c) whether the dispute concerns access to benefits or expulsion of the person concerned.

The judgment

The Alimanovic case concerns a Swedish woman and her daughter who had worked in Germany briefly, then lost their jobs. They sought a particular benefit in Germany, and the national court asked the CJEU if they were entitled to it.

First of all, the Court reiterated and expanded on what it had said in Dano: the benefit in question was a ‘social assistance’ benefit, not a benefit relating to labour market access. This distinction is important because the EU citizens’ Directivestates that access to ‘social assistance’ benefits can be denied to first-time job-seekers, for as long as they are seeking work, and to all EU citizens during their first three months of residence. Furthermore, the Court’s previous case law (interpreting the Treaty rules on free movement of workers) states that first time job-seekers were entitled to benefits relating to labour market access, but not to social assistance benefits. The Court references that case law obliquely in the Alimanovicjudgment, but does not either reaffirm or denounce it; it should be noted that a case about job-seekers’ access to this same benefit is pending (Garcia-Nieto: see the Advocate-General’s opinion in that case here).

Secondly, the Court then turned to the question of whether EU citizens who were previously briefly employed in the host State could be denied social assistance benefits. The previously employed are not one of the two categories of people specifically excluded from equal treatment to social assistance benefits by the citizens’ Directive; but that does not necessarily mean that they have access to those benefits.

To determine whether they had access to those benefits, the Court interpreted the equal treatment rule in the Directive, which states that equal treatment applies to all those EU citizens ‘residing on the basis of this Directive’ and their family members (leaving aside the exclusions which were already mentioned, as well as other exclusions in the Treaties or other EU legislation). So were the two benefit claimants residing on the basis of the Directive?

The Court ruled that they were not still covered by the Directive as former workers, since the Directive says that those who work in the host State for less than one year (as in their case) retain ‘worker’ status for at least six months after becoming unemployed. After that point, a Member State can (as Germany did) terminate their worker status, which means (unless they have another basis to stay, which was not relevant in this case) they are no longer covered by the equal treatment rule, and lose access to social assistance benefits. The national court also took the view that they could be classified as first-time job-seekers, although the Court pointed out that in that case, the Directive expressly permits Germany to refuse access to social assistance benefits.

Next, the Court distinguished prior case law which requires an individual assessment of whether an EU citizen could be expelled or is an ‘unreasonable burden’ on the social assistance system of the host State. In this case, no such assessment was needed, because the citizens’ Directive already took account of the individual position of workers. The specific period of retaining worker status set out in the Directive and national law ensured legal certainty, while ‘while complying with the principle of proportionality’. Finally, when considering whether there was an ‘unreasonable burden’ on national systems, the individual claim did not count: rather the total of all claims would be ‘bound to’ constitute such a burden.

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La politique européenne d’asile : Strange fruit ? (II)

ORIGINAL PUBLISHED ON CDRE HERE  (10 SEPTEMBRE 2015)

 par Henri Labayle, 

II – Etat de crise

Ouverte au lendemain de la publication de l’Agenda européen sur la migration (COM (2015) 240), la crise affectant la politique commune d’asile de l’Union est en réalité une crise beaucoup plus importante qu’on ne l’imagine, aux racines profondes. Elle est à la fois morale et institutionnelle.

1. Une crise morale

La déconvenue faisant suite au Conseil des ministres JAI du 20 juillet a entraîné une crise ouverte, d’autant plus grave qu’en parallèle l’exode meurtrier en Méditerranée se poursuivait. Aux abonnés absents pendant l’été, les institutions de l’Union ont laissé place aux égoïsmes nationaux, sans grande réaction.

Le Conseil s’était en effet accordé sur le principe d’une aide à l’Italie et la Grèce en admettant le principe d’une « relocalisation » de 40 000 personnes ayant manifestement besoin d’une protection internationale. Une proposition de décision du Conseil en ce sens traduisait ce principe sous la forme d’un « mécanisme temporaire et exceptionnel ». Simplement « volontaire », cette position était largement en deça du souhait d’établir une contrainte du Président de la Commission, ce dernier n’ayant pas mâché ses mots pour stigmatiser une Union européenne incapable de montrer « à la hauteur ».

Une « résolution des représentants des gouvernements des États membres réunis au sein du Conseil » traduisait en effet ce demi-échec, incapable d’atteindre le chiffre symbolique proposé de 40 000 bénéficiaires. Le refus de certains Etats membres bloquait la barre à 32 256 personnes « relocalisables » à partir de l’Italie et de la Grèce, au nom d’une solidarité mesquine. La promesse d’atteindre le but, en décembre 2015, n’était donc ni à la mesure de l’augmentation de la pression migratoire ni à la hauteur de l’ambition d’engager l’Union sur le terrain de la solidarité. A cette occasion, des lignes de fracture préoccupantes apparurent au grand jour.

Un front du refus s’est ainsi constitué, facile à dessiner en lisant les statistiques d’Eurostat concernant les demandes d’asile et les décisions nationales positives de protection. Il n’a pas été franchi, les chiffres nationaux de la protection expliquant tout. La Pologne accueille du bout des lèvres 720 réfugiés en 2014 et les Etats baltes ne sont pas plus concernés (Estonie 20, Lettonie 25, Lituanie 75), République tchèque (765), Slovénie (45). Y ajouter l’Espagne et ses 1585 décisions positives complète le tableau. Cas à part, la Hongrie faisait, elle, de la question un enjeu politique à proprement parler.

Cette situation mise en perspective avec celle d’une Bulgarie dépassée par les faits (7 020) mais surtout avec les 8 045 décisions positives belges et les 30 650 réfugiés acceptés en Suède, tout conduisait à l’impasse du début de l’été.

Courageusement, alors, la chancelière allemande a pris ses responsabilités au cœur du mois d’août, seule et face à un silence français révélateur des réticences de ses dirigeants. Son coup de force a pris deux formes, significatives l’une comme l’autre. De façon très politique, d’abord et enfin serait-on tenté d’ajouter, l’Allemagne a souligné que la question était d’une extrême gravité et qu’elle devait être abordée avant tout sur le plan des principes et des valeurs qui fondent le projet européen. D’autre part, elle a délibérément accentué la crise en affirmant que l’impuissance à surmonter cette épreuve était susceptible de remettre en cause l’espace de libre circulation de l’Union.

La question se pose exactement sur ce terrain. Les valeurs de l’Union, en particulier en matière d’asile, sont aujourd’hui un vain mot. Rivés sur leurs agendas politiciens nationaux, nombre d’Etats membres refusent délibérément de faire face à leurs responsabilités. Ignorer les causes de l’exode liées à une politique étrangère commune inexistante, tolérer la complicité active des Etats voisins de ces persécutions, de la Turquie à la Libye, fermer les yeux sur les défaillances nationales dans la gestion de la frontière commune comme dans l’accueil des candidats au refuge, ne pas engager de véritable lutte contre ces nouvelles formes d’esclavage que sont les trafics d’êtres humains ont fait office de politique commune.

Faisant tomber les masques, le positionnement de la Chancelière allemande met à jour la sourde opposition séparant les Etats membres de l’Union concernant la politique migratoire et plus exactement ici l’exercice du droit d’asile. Ainsi qu’Angela Merkel l’a fait remarquer devant le Bundestag, l’Union et ses membres n’ont pas tiré les leçons du passé. Plus précisément ici, l’ambiguïté initiale ayant accompagné l’élargissement à l’Est n’a jamais vraiment été levée concernant la gestion des frontières, la présence de ressortissants de pays tiers et la politique d’asile.

L’inflexion des couloirs de migration de la Méditerranée vers l’Europe centrale et les Balkans a crevé l’abcès, au coeur de l’été. Le sens et la portée des termes du traité vis-à-vis d’une partie non négligeable des Etats membres demeurent incertains, dès lors que l’on évoque les « valeurs » des articles 2 et 3 TUE ou la « solidarité » des articles 67 et 80 du TFUE …

Si ces Etats membres ne sont pas ignorants des phénomènes migratoires, soit qu’ils les nourrissent vers l’Ouest de l’Union, soit qu’ils en soient l’objet depuis l’Est du continent et notamment de l’Ukraine et de la Russie, le fossé culturel creusé par leurs histoires nationales n’est pas comblé. Qu’il s’agisse de la surveillance de leur frontière extérieure, confisquée par d’autres pendant un demi-siècle, ou bien d’une protection internationale au nom des droits fondamentaux largement étrangère à leur culture, le débat restait passablement théorique au plan interne et au sein de leurs institutions publiques. Le passage à l’acte imposé par la crise de juillet a donc fait office de déclencheur dès lors qu’il ne s’agissait plus de bénéficier des fonds de l’Union relatif à la pré-adhésion et au renforcement des instruments de la JAI. A fortiori quand, comme certains Etats, ils étaient tenus à l’écart de l’espace Schengen par leurs partenaires depuis 7 ans …

Hostiles à une quelconque solidarité entre Etats dans une matière où ils ne se sentent pas vraiment concernés, quand ils n’y sont pas radicalement opposés comme la Hongrie, ces Etats ont multiplié les signes de défiance et se sont regroupés au sein du groupe dit « de Visegrad ». Menés par la Hongrie, ils ont été rejoints par la République tchèque, la Pologne, la Slovaquie et discrètement appuyés par les Etats baltes et l’Espagne. Acculés à la défensive, ils ont alors exprimé des opinions et adopté des comportements posant clairement la question de leur adhésion à un projet et à des valeurs communes. La crainte de « l’invasion » ou la mise en avant de « l’identité chrétienne » confortés par le traitement médiatique de la crise, la construction de « murs » ou les comportements des forces de l’ordre sur le terrain ont suffi à en prendre conscience. La réunion du groupe, le 4 septembre, a abouti à un refus clair du partage des charges, tous le jugeant « inacceptable », la Hongrie estimant même qu’il s’agissait là exclusivement d’un « problème allemand ».

En parallèle, la fin de l’été a été le théâtre de la résurgence des tensions migratoires à la frontière franco-britannique, Calais et le terminal d’Eurostar ayant succédé à Sangatte. Au delà de la curiosité consistant à voir la France garder les frontières d’un Etat tiers à l’Espace Schengen et bénéficier à cet égard d’une aide financière de la Commission, l’occasion pour les autorités britanniques de se démarquer de la politique de l’Union et du dispositif Schengen qui les protège pourtant était trop belle pour qu’ils manquent de la critiquer et d’en tirer justification à leur « opt-out ».

Aussi et devant la désunion des Etats membres, la menace explicite allemande de remettre en cause le fonctionnement sinon l’existence de l’espace Schengen doit-elle être prise au sérieux. Conçu pour des périodes de calme, le système Schengen ne résiste plus aux coups de boutoir d’une crise majeure, qu’il s’agisse d’y pénétrer, de l’Europe des Balkans à celle du Sud, ou même d’en sortir, à Calais. Certains de ses principes majeurs, notamment celui du traitement Dublin des demandeurs, pourraient bien ne pas y résister à en lire la lettre des ministres des affaires étrangèresà leurs homologues de l’Union. Pourtant, y remédier réclame un système institutionnel efficace et non en pleine crise lui même. En effet, courageusement, la présidence luxembourgeoise s’est attachée à tenter une sortie de la crise « par le haut ».

2. Une crise institutionnelle

La proposition de la Commission de répartir les charges en matière d’asile, au printemps, est donc tombée dans l’impasse, à la fois quant à sa portée non obligatoire et quant à ses objectifs chiffrés. L’autisme de l’Union face à la question migratoire et aux conflits ouverts à sa périphérie ne pouvait s’en accommoder.

Le ralliement d’une majorité d’Etats membres à l’initiative courageuse de Jean-Claude Juncker s’est pourtant concrétisé dans la difficulté. Ultime avanie pour une prétendue « politique commune », cet accord minimal a pris la forme passablement intergouvernementale d’une « résolution des représentants des gouvernements réunis au sein du Conseil », attitude identique pour la question de la réinstallation. Elle témoigne de l’impuissance de la Commission à forcer la porte des Etats et de l’incapacité totale du Parlement européen à jouer le rôle d’un contrepoids que la soumission de la matière à la majorité qualifiée pouvait laisser espérer.

A cet égard, le débat sur les bases juridiques de la proposition de la Commission mérite un rappel, même s’il a été escamoté rapidement au Parlement européen lors du vote de la proposition le 9 septembre.

Ayant pour objectif d’instituer des mesures provisoires (24 mois) au profit de l’Italie et de la Grèce dans le domaine de la protection internationale, la proposition de décision présentée par la Commission implique par nature une dérogation temporaire au règlement Dublin n° 604/2013. Mettant en avant une « situation d’urgence caractérisée par un afflux soudain de ressortissants de pays tiers » justifiant « d’adopter des mesures provisoires » ainsi que l’article 78.3 TFUE le signifie, la Commission a retenu cette base juridique pour agir, impliquant une simple consultation du Parlement.

Or, le même article 78 du TFUE, dans son paragraphe 2 point c) identifie « la protection temporaire … en cas d’afflux massif » comme un élément constitutif du système commun d’asile et … le soumet à la procédure législative ordinaire.

On aurait pu en débattre si, précisément, l’aggravation de la situation n’avait pas poussé des parlementaires européens peu téméraires à faire l’économie d’une querelle juridique, quitte à y perdre leur qualité de co-législateur. En effet, la « situation d’urgence » et le caractère « soudain » de l’afflux de demandeurs étaient, en mai 2015, tout sauf inconnus des institutions de l’Union et de ses membres. Depuis de longs mois, de Conseils des ministres en Conseils européens, la sinistre litanie des morts en Méditerranée faisait la une de l’actualité et ce scandale provoquait des crises internes récurrentes  dans l’Union, comme par exemple lors du printemps arabe. Les statistiques de 2014 produites opportunément par Eurostat confirment bien qu’en fait c’est l’inaction de l’Union qui a commandé une réaction au mois de juillet davantage que la survenance d’un évènement imprévu, au premier semestre 2015.

Conscient de son impuissance à engager une bataille perdue d’avance, le Parlement a donc voté une résolution approuvant l’initiative, quitte, en annexe, à souligner qu’il « ne peut accepter l’article 78, paragraphe 3, du traité sur le fonctionnement de l’Union européenne comme base juridique qu’en tant que mesure d’urgence, qui sera suivie d’une proposition législative en bonne et due forme visant à réagir de manière structurelle aux futures situations d’urgence ».

L’impasse dans laquelle la Commission s’est trouvée au début de l’été, et avant l’offensive de Jean Claude Juncker dans son discours général sur l’état de l’Union européenne du 9 septembre, s’est accompagnée d’une mise en cause sévère de sa capacité à s’acquitter de ses fonctions en matière migratoire.

Là encore, les autorités allemandes ont été à la manœuvre, soulignant la lenteur avec laquelle les décisions prises s’appliquent et la curieuse impunité avec laquelle un certain nombre d’Etats, de la Grèce à la Hongrie en passant par l’Italie, se soustraient à leur obligation de transposition et d’application des règles communes. La critique est largement fondée, tant en ce qui concerne la lenteur de la mise en place des options arrêtées qu’à propos du contrôle de l’application de la législation de l’Union en matière d’asile et d’immigration qui incombe exclusivement à la Commission.

Pour être distinctes, les deux critiques font néanmoins mouche. Outre la lenteur technocratique avec laquelle la moindre décision se met en place, la défiance est au cœur des relations internes à l’espace de liberté. La suspicion des Etats de destination selon laquelle les Etats de première réception ne jouent pas le jeu de leurs obligations propres, en matière de contrôle des personnes, d’accueil comme en matière d’enregistrement, n’est pas dépourvue de fondement. De l’attitude hongroise à l’impuissance grecque ou l’ambiguïté italienne, les dossiers sont nombreux et ce d’autant plus que si l’on se penche sur la transposition et l’application de la législation dérivée, il saute aux yeux que le patchwork antérieur demeure.

L’exécutif est parfaitement conscient de cet état de fait et multiplie les preuves de bonne volonté, par exemple en soulignant que 32 procédures en infraction relatives au « Paquet asile » ont été enclenchées mais sans beaucoup convaincre lorsque l’on connaît le caractère très formaliste de telles procédures. Avec une intelligence certaine, la publication d’un encart positivant son action, le jour du discours de son Président, s’efforce de contenir la montée des critiques. Car l’enjeu est n’est pas mince : la prise de pouvoir des Etats qu’exprime le leadership allemand ici a pour conséquence de renvoyer la Commission au simple rôle d’un exécutant. Les querelles d’il y a peu relatives à l’évaluation de l’ELSJ dans le cadre de Schengen ont-elles déjà été oubliées par les différents protagonistes ?

La troisième source de trouble institutionnel est plus anecdotique, sauf si l’on se souvient de la place qu’on prétendait lui accorder au lendemain du traité de Lisbonne. Elle concerne le rôle du Président du Conseil européen.

Confronté à une crise où le souvenir de sa nationalité l’a manifestement emporté sur le poids de sa fonction, Donald Tusk avait jugé bon au début de l’été de freiner l’initiative de la Commission en mettant l’accent sur le renvoi davantage que sur l’accueil des demandeurs de protection. Loin de « l’honnête courtier » qu’avait tenté d’être son prédécesseur, il avait ainsi apporté sa pierre à l’échec de la proposition. L’entendre trois mois après défendre une proposition triplant le nombre des réfugiés dans l’Union lors de la conférence annuelle des ambassadeurs de l’UE, au nom des valeurs, laisse perplexe quant à la valeur ajoutée de l’institution …

Dès lors, le discours de Jean Claude Juncker et sa réaction à l’aggravation de la crise étaient attendus pour esquisser les voies d’une sortie de crise.