Category: 1.1 Decision Making Process – Planning

(ASGI and OTHERS) THE AGREEMENT BETWEEN THE EUROPEAN COUNCIL AND TURKEY OF 17/18 MARCH 2016 IS ILLEGAL.

NB. The original is available in the site of the Associazione di Studi Giuridici sull’Immigrazione (ASGI) Unofficial translation by Statewatch

 

It seriously violates European law and radically betrays the EU’s and Italy’s judicial culture.

The agreement of 17/18 March 2016 is a decision by the heads of state and of the governments of the EU which runs contrary to the European law that is in force. The violations which have been recorded are numerous, including the following:

  1. The agreement envisages the forced return to Turkey of asylum seekers who entered Greek territory passing through Turkish territory after their asylum application was declared inadmissible. According to what the European Council reported, such inadmissibility will be declared by the Greek authorities, in cooperation with UNHCR, following an examination which is defined as individual but is described in terms which apply to collective refoulements. Art. 33 of EU Directive 32/2013 (on common procedures) establishes that asylum applications can only be deemed inadmissible following an individual assessment which may lead, in such cases, to establishing that an asylum seeker may be readmitted into a third country which may be deemed a “first country of asylum” or “safe third country”. These two notions are specified better in arts. 35 and 38 of the same directive, and are subject to compliance with requisites which cannot be observed as applying to the case of Turkey in any way. In fact, the latter country, apart from violating human rights and not guaranteeing democratic principles to its citizens, does not offer “sufficient protection” to asylum seekers for it to be defined a first country of asylum (art. 35), nor does it offer “the possibility to apply for refugee status” or to “obtain protection in accordance with the Geneva Convention” to an extent that may allow it to be deemed a safe third country (art. 38). In other terms, the agreement wants to break through the current normative framework (Directive 32/2013) to qualify Turkey as a “first country of asylum” or “safe third country”, in order to trigger a system of absolutely summary evaluation of asylum applications which will lead to quick declarations of inadmissibility and, as a result, to forced deportations on the basis of the sole precondition that such asylum seekers have passed through Turkey and that, just for this reason, they may be sent back to that country.
  2. The agreement envisages the possibility of enacting forced returns towards Turkey of all the foreign citizens who have reached Greece after crossing Turkish territory without submitting an asylum application. In this case as well, the agreement defines as individual a mechanism which, conversely, is described as a collective refoulement, enacted en masse against all the foreign citizens who have not submitted an application (or who are unlikely to manage to express their will to do so), solely on the basis of the fact that they have crossed the Turkish border. Hence, this is a mechanism which openly contravenes the prohibition of collective refoulements which is enshrined by 4 of the 4th Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
  1. Finally, the agreement which has just been reached represents a decision by the heads of states and of governments, and not an authentic EU agreement. Thus, it requires ratification by the Italian Parliament if it is to be deemed binding for Italy.

In view of its illegal aspects highlighted above, the signatory associations (*) demand:

I. That the authorities of the European Union immediately reassess the terms of the agreement and thereby exclude the possibility that Turkey may be considered a “first country of asylum” or a “safe third country” in accordance with arts. 35 and 38 of EU Directive 32/2013. Further, we ASK that, in any case, they respect the individual nature of the examination of an asylum application, allowing asylum seekers the concrete chance to have effective access to the procedure for recognition of international protection and to express any reason they may have to exercise a genuine right to legal defence.

II. That UNHCR should not participate in operations of mass evaluation of the inadmissibility of requests for international protection submitted in Greece by applicants who have arrived from Turkey. Such an assessment concerning inadmissibility represents a waiting room for collective refoulements and UNHCR cannot and must not legitimate such an operation.

III. That the Italian Parliament subject the decision by heads of states and of governments to ratification and not to authorise it because it contravenes European law, the European Union’s Charter of Fundamental Rights, article 10.3 of the Italian Constitution and, more generally, the fundamental principles of our legal civility and our democratic tradition.

22 March 2016

(*) Arci, Asgi, Federazione delle Chiese Evangeliche in Italia, Centro Astalli, FOCUS -Casa dei Diritti Sociali, Medici per i Diritti Umani, Consiglio Italiano per i rifugiati (CIR), SenzaConfine

 

 

 

Is the EU-Turkey refugee and migration deal a treaty?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (emphasis have been added by myself. EDC)

by Maarten den Heijer*, Thomas Spijkerboer**

In the European Parliament, questions were asked about the legal nature of the EU-Turkey Statement of 18 March, pursuant to which Greece has started to return asylum seekers to Turkey this week. Apparently, the EU’s procedure for negotiating and concluding treaties with third countries, laid down in in Art. 218 TFEU, has not been followed. The European Parliament wants to know whether the Council nonetheless considers the Statement to be a treaty, and, if not, whether Turkey has been informed about the non-binding nature. Importantly, for treaties “covering fields to which the ordinary legislative procedure applies” (asylum and immigration is such a field), the Council may only conclude a treaty with a third country after obtaining consent of the European Parliament (Art. 218(6)(a)(v) TFEU).

It seems that legal experts of the Commission and the Council have identified the issue. Shortly after the EU-Turkey Statement, the Commission proposed to amend theRelocation Decisions relating to Italy and Greece, in order to transfer some of the relocation commitments concerning asylum seekers arriving in Italy and Greece to Syrians in Turkey. The proposal appears to contradict the view that the EU-Turkey Statement of 18 March did not intend to produce legal effects. However, in consideration 4 of the proposal’s preamble, the presented rationale for the amendment is the Statement of the EU Heads of State or Government of 7 March 2016, in which the Members of the European Council (and not Turkey) agreed to work towards the Turkish proposal of resettling, “for every Syrian readmitted by Turkey from Greek islands, another Syrian from Turkey to the Member States, within the framework of the existing commitments”. The Commission would seem to be navigating around the EU-Turkey Statement as the ground for amending the 22 September Council Decision, possibly fearing that to do otherwise may lend support to the argument that the Statement is, in fact, a treaty.

It could be argued that the statement is not a treaty in the meaning of the Vienna Convention on the Law of Treaties or an international agreement in the meaning of Article 216 TFEU, precisely because it is merely a “statement”. This is the view of Steve Peers on this blog: “Since the agreement will take the form of a ‘statement’, in my view it will not as such be legally binding. Therefore there will be no procedure to approve it at either EU or national level, besides its endorsement by the summit meeting. Nor can it be legally challenged as such. However, the individual elements of it – new Greek, Turkish and EU laws (or their implementation), and the further implementation of the EU/Turkey readmission agreement – will have to be approved at the relevant level, or implemented in individual cases if they are already in force.” Karolína Babická appears to share this view: “The EU-Turkey statement as such is not legally binding. It is only a politically binding joint declaration. It is not challengeable as such but its implementation in practice will be possibly challenged in court.”

A further reason not to view the statement as a treaty is that it does not use terms as shall and should, which are normally used in international law to indicate obligations of result (shall) or obligations of effort (should). Instead, the more indistinct term ‘will’ is used. On the other hand, the Statement says that the EU and Turkey “have agreed on the following additional points”. Article 216 TFEU uses the term ‘agreement’ when referring to a treaty with third countries. If two parties agree to something, can the result be anything less than an “agreement”? Or is the meaning of the term agreement in Art. 216 TFEU different from its ordinary meaning?

If one would embrace the thought that the Statement of 18 March is not a treaty or agreement because it is designated as “Statement” and uses the term “will”, it would follow that the EU could neglect the constitutional safeguards of Art. 218 TFEU by changing the form or terminology of a particular text. It would be rather odd if the EP and CJEU could be sidetracked by such clever ruses. It would mean that the applicability of constitutional safeguards depends entirely on choices regarding the design instead of content made by Commission or Council.

That the form is not decisive is confirmed in the case law of the International Court of Justice. In Aegean Sea, the question was whether a joint communiqué, issued after a meeting between the Prime Ministers of Greece and Turkey, in which they agreed that a territorial dispute dividing the two countries should be resolved by the ICJ, constituted a treaty on the basis of which the ICJ had jurisdiction over the case. The Court held:

  1. The Brussels Communiqué of 31 May 1975 does not bear any signature or initials, and the Court was informed by counsel for Greece that the Prime Ministers issued it directly to the press during a press conference held at the conclusion of their meeting on that date. The Turkish Government, in the observations which it transmitted to the Court on 25 August 1976, considered it “evident that a joint communiqué does not amount to an agreement under international law”, adding that “If it were one, it would need to be ratified at least on the part of Turkey” (para. 15). The Greek Government, on the other hand, maintains that a joint communiqué may constitute such an agreement. To have this effect, it says, “It is necessary, and it is sufficient, for the communiqué to include-in addition to the customary forms, protestations of friendship, recital of major principles and declarations of intent-provisions of a treaty nature” (Memorial, para. 279). Counsel for Greece, moreover, referred to the issue of joint communiqués as “a modern ritual which has acquired full status in international practice”.
  1. On the question of form, the Court need only observe that it knows of no rule of international law which might preclude a joint communiqué from constituting an international agreement to submit a dispute to arbitration or judicial settlement (cf. Arts. 2, 3 and 11 of the Vienna Convention on the Law of Treaties). Accordingly, whether the Brussels Communiqué of 31 May 1975 does or does not constitute such an agreement essentially depends on the nature of the act or transaction to which the Communiqué gives expression; and it does not settle the question simply to refer to the form – a communiqué – in which that act or transaction is embodied. On the contrary, in determining what was indeed the nature of the act or transaction embodied in the Brussels Communiqué, the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up.

The ICJ found that the terms of the communiqué, using terms as “decision” and “obligation” were indicative of the parties intending to bind themselves. However, it transpired from the context, namely previous and later negotiations and diplomatic exchanges between the parties, that they had not yet undertaken an unconditional commitment to submit the continental shelf dispute to the Court.

In Qatar/Bahrain, the question was whether minutes of a meeting between two Foreign Ministers constituted a treaty. The ICJ held:

  1. The 1990 Minutes refer to the consultations between the two Foreign Ministers of Bahrain and Qatar, in the presence of the Foreign Minister of Saudi Arabia, and state what had been “agreed” between the Parties. In paragraph 1 the commitments previously entered into are reaffirmed (which includes, at the least, the agreement constituted by the exchanges of letters of December 1987). In paragraph 2, the Minutes provide for the good offices of the King of Saudi Arabia to continue until May 1991, and exclude the submission of the dispute to the Court prior thereto. The circumstances are addressed under which the dispute may subsequently be submitted to the Court. Qatar’s acceptance of the Bahraini formula is placed on record. The Minutes provide that the Saudi good offices are to continue while the case is pending before the Court, and go on to Say that, if a compromise agreement is reached during that time, the case is to be withdrawn. 25. Thus the 1990 Minutes include a reaffirmation of obligations previously entered into; they entrust King Fahd with the task of attempting to find a solution to the dispute during a period of six months; and, lastly, they address the circumstances under which the Court could be seised after May 1991. Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting, similar to those drawn up within the framework of the Tripartite Committee; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement.

On that basis, the ICJ concluded the dispute to be within its jurisdiction. It follows that the question of whether a text is a treaty does not depend on form but on whether the parties intended to bind themselves. Whether there is such intent, depends on the terms used and the context in which the text was drawn up.

There is no reason to assume that this reasoning does not apply to the EU (which is not a party to the Vienna Convention on the Law of Treaties). In interpreting agreements concluded between the EU and third countries, the CJEU consistently observes thateven though the Vienna Convention does not bind either the Community or all its Member States, a series of provisions in that convention reflect the rules of customary international law which, as such, are binding upon the Community institutions and form part of the Community legal order (C-386/08, Brita, par 42). Presumably, the definition of a treaty in Art. 2(1)(a) VCLT belongs to customary international law. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, which has not yet entered into force, uses the same definition and expands it to agreements concluded between international organizations or an international organization and a state.

Both the text and context of the EU-Turkey Statement support the view that it is a treaty. The parties “decided” to end the irregular migration from Turkey to the EU, and, to that purpose, they “agreed” on a number of action points. These include a commitment on the part of Turkey to accept returned migrants and a commitment on the part of the EU to accept for resettlement one Syrian for every one Syrian returned to Turkey. Further, the Statement reaffirms the joint action plan of November 2015 and mentions that it is already being implemented. Indeed, several implementation reports have been drawn up since November 2015, from which it is clear that the previous action plan has been activated (here and here). The EU-Turkey Statement now at issue is also being implemented. For example, the Greek parliament has passed a law allowing migrants arriving in the country to be returned to Turkey. On Monday 4 April 2016, Turkey accepted the first returned asylum seekers from Greece. All this indicates that the EU-Turkey Statement was meant to sort legal effects. This, in turn, indicates that both parties intended to bind themselves and that, therefore, it is a treaty.

One way to argue that the EU-Turkey statement is not an agreement in the sense of Article 216 TFEU would be to posit that it merely reconfirms already existing obligations from previous agreements (such as the EU-Turkey and Greece-Turkey Readmission Agreements). But textually as well as contextually, that argument is difficult to uphold. First, the substantive part of the agreement opens with the decision to return all irregular migrants to Turkey. Even though this sentence is followed by qualifications about compatibility with international and European law and even the explicit statement that this does not constitute collective expulsion, this is a highly novel (and legally very questionable) element, which can hardly be construed as a restatement of pre-existing obligations. The same is true for the EU commitments to resettle Syrians from Turkey and the additional funding for the Facility for Refugees in Turkey of 3 billion euro. Secondly, it is well known that the pre-existing readmission obligations (on the basis of the EU-Turkey and Greece-Turkey Readmission Agreements) were barely being applied. Therefore, the fact that Turkey agreed that, as of 20 March 2016, all irregular migrants were to be accepted is a substantively novel element. The idea that the EU-Turkey Statement merely repeats pre-existing legal obligations is not convincing.

Does the fact that the internal EU rules were possibly not followed mean that the Statement does not have legal effect? Probably not, as the Statement was agreed by the Members of the European Council, whom Turkey could have considered to have full powers to bind the EU. Article 46 VCLT provides that a party may not “invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. Paragraph 2 of that provision provides that a violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. In Qatar/Bahrain, the ICJ did not consider it relevant that Qatar had not followed the procedures required by its own Constitution for the conclusion of treaties: “Nor is there anything in the material before the Court which would justify deducing from any disregard by Qatar of its constitutional rules relating to the conclusion of treaties that it did not intend to conclude, and did not consider that it had concluded, an instrument of that kind; nor could any such intention, even if shown to exist, prevail over the actual terms of the instrument in question.” (par. 29).

We are therefore of the view that the EU-Turkey Statement is a treaty with legal effects, despite its name and despite internal EU rules not having been observed.

Why is the binding nature relevant?

That the Statement is a treaty implies not only that the EU and Turkey must uphold its terms; it also opens up a debate out is legal effects, including possible challenges against its legality in view of possible conflict with other rules and treaties, such as human rights. The fact that the Statement has already been concluded and is therefore no longer merely ‘envisaged’, means, however, that it is no longer possible to obtain an opinion of the CJEU “as to whether an agreement envisaged is compatible with the Treaties” (Art. 218(11) TFEU). It is still possible for one of the EU institutions or a Member State to bring an action for annulment of the act of the European Council to conclude the agreement with Turkey. Such an action was successfully brought in Commission v France (C-327/91), when the ECJ declared void the act whereby the Commission sought to conclude a competition agreement with the US, for reason of the Commission not being empowered to do so. However, this left the Agreement with the US itself intact, which is in conformity with the rule of Article 46 VCLT.

In view of the default position in international law that all treaties are equal, it further is difficult to argue that the Statement is void because of a possible conflict with human rights such as guaranteed in the ECHR or within the EU legal order, such as the right to asylum and the prohibitions of non-refoulement and collective expulsion. Only if the EU-Turkey Statement conflicts with jus cogens, is it to be considered void and may Member States not give effect to it (Art. 53 VCLT).

It is however possible for individuals (such as those being returned from Greece to Turkey) to challenge the implementation of the EU-Turkey agreement before national courts, arguing that it conflicts with fundamental rights. This in turn, may lead to a referral to the CJEU or a complaint before the ECtHR.

Is the agreement in violation of human rights? As has been argued by UNHCR (here and here) and many others (eghere), the agreement may well raise issues under (at least) the prohibition of refoulement (is Turkey safe and is there a risk of expulsion from Turkey?), the right to liberty (is systematic detention in Greece allowed?) and the prohibition of collective expulsion (are the returnees able to challenge their return on individual basis, including before a court?).

However, the Statement does not prescribe how, exactly, returns are to be effectuated and does not oblige Greece to systematically detain all asylum seekers who enter the country from Turkey. The Statement says that returns are to “take place in full accordance with EU and international law, thus excluding any kind of collective expulsion” and that “[a]ll migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement.” Further, migrants are to be “duly registered and any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive.” It would seem therefore that the Statement itself does not directly violate international norms – it leaves the Member States sufficient freedom to implement the obligations in harmony with human rights. It follows that the Member States (Greece) must implement the agreement in harmony with human rights: “Where a number of apparently contradictory instruments are simultaneously applicable, they must be construed in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law.” (ECtHR Nada v Switzerland, par 170).

Conclusion

This brings us to two concluding observations. First, the devil of implementing the EU-Turkey deal is in the detail. Although its effectiveness in terms of stopping irregular migration by creating a deterrent effect may depend on returning all persons arriving in Greece as quickly as possible, fundamental rights may well halt returns in individual cases or result in lengthy procedures. It is indeed the question whether the appropriate human rights framework is in place in Greece (as is observed by UNHCR).

Second, the EP is right in asking critical questions about the Council not following the rules for concluding a treaty (also see earlier questions about the EU-Turkey deal of 29 November 2015). Although one could take the view that time did not allow to await an Opinion of the CJEU, the agreement was not concluded with Turkey overnight and there would at least seem to have been opportunity to ask consent from European Parliament (Art. 218(6) says that, in an “urgent situation”, EP and Council may agree on a time-limit for consent). That the institutional role of the EP has been neglected confirms the worrying trend that intergovernmental decision-making is taking over in the Union, and that national interests increasingly often prevail over the common values of the Union. This is bad for European democracy.

*Assistant professor of international law at the Universiteit van Amsterdam

**Professor of migration law at the Vrije Universiteit Amsterdam.

(Legislative Alert) Data Protection : the draft Directive covering public security policies

ORIGINAL TEXT ACCESSIBLE IN ALL EU LANGUAGES ON THE EU COUNCIL SITE 

Nota bene : the text below is the Council “position” which will be adopted in the coming hours by written procedure by the Coreper and sent to the EP for the second reading (currently foreseen for the APRIL  session plenary together with the EU  General Regulation on data protection and the draft Directive on the so called “EU PNR”). For the time being these passages foreseen by art. 294 TFEU are seen by the institutions as mere formalities as an “informal” agreement on the draft Council Position has already been reached on December 17/18 with an “informal” vote of the relevant Parliamentary committee (LIBE).

Following the “informal” practice of interinstitutional “early agreements” the Chairman of the Parliamentary Committee has already informed the Council that no amendments will be submitted by LIBE when the text of the Council position will be formally submitted to the EP. Therefore since last December the text  below has already been revised from the Jurist linguistsso that it can be published on the official Journal maybe already in May or June after the formal vote of the EP and the  final adoption by the Council as well as the signature of the EP and Council Presidents.

Below the text of the Council Position as well as of the Statement of reasons which according to the Treaty  should explain to the EP why the text is different from the one voted by the latter. Again this has become a pure formality as the EP has already negotiated with the Council the amendments to the original Commission Proposal. One can guess if the loser of this “informal” way of proceeding where a “Position” of an institution is already a consolidated compromise is the ordinary European citizen who has no real means to understand who between the EP and the Council should be taken accountable for the different choices made to reach the “compromise”. 

Comments on the content of the “Council Position” below will follow

EDC 

—

(Draft) Statement of the Council’s reasons on the  Position of the Council on DIRECTIVE (EU) 2016/… OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of … on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA

INTRODUCTION Continue reading “(Legislative Alert) Data Protection : the draft Directive covering public security policies”

(Legislative Alert) Data Protection :the new EU general Regulation

ORIGINAL TEXT ACCESSIBLE IN ALL EU LANGUAGES ON THE EU COUNCIL SITE 

Nota bene : the text below is the Council “position” which will be adopted in the coming hours by written procedure by the Coreper and sent to the EP for the second reading (currently foreseen for the APRIL  session plenary together with the EU Directive on data protection in the security sector and the draft Directive on the so called “EU PNR”). For the time being these passages foreseen by art. 294 TFEU are seen by the institutions as mere formalities as an “informal” agreement on the draft Council Position has already been reached on December 17 with an “informal” vote of the relevant Parliamentary committee (LIBE).

Following the “informal” practice of interinstitutional “early agreements” the Chairman of the Parliamentary Committee has already informed the Council that no amendments will be submitted by LIBE when the text of the Council position will be formally submitted to the EP. Therefore since last December the text  below has already been revised from the Jurist linguists so that it can be published on the official Journal maybe already in May or June after the formal vote of the EP and the  final adoption by the Council as well as the signature of the EP and Council Presidents.

Below the text of the Council Position as well as of the Statement of reasons which according to the Treaty  should explain to the EP why the text is different from the one voted by the latter. Again this has become a pure formality as the EP has already negotiated with the Council the amendments to the original Commission Proposal. One can guess if the loser of this “informal” way of proceeding where a “Position” of an institution is already a consolidated compromise is the ordinary European citizen who has no real means to understand who between the EP and the Council should be taken accountable for the different choices made to reach the “compromise”. 

Comments on the content of the “Council Position” below will follow

EDC 

(Draft) Statement of the Council’s reasons on the 

Position of the Council at first reading with a view to the adoption of a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) 

Continue reading “(Legislative Alert) Data Protection :the new EU general Regulation”

“EU-US Privacy Shield” : Towards a new Schrems 2.0 Case ? 

NOTA BENE : This is not a final version (San Francisco, April 3rd 2016)

By Max SCHREMS

INTRO

In the past weeks I was repeatedly asked by policy makers, MEPs, DPAs and interested lawyers and individuals about a written summary of my assessment of the proposed “Privacy Shield” system. This document is a quick response to these requests. Due to the limited time it may contain some typos and minor errors.

The debate on “Privacy Shield” is ongoing and a full proper academic review of the more than 120 page draft Commission decision, in context of the European and US laws and decisions, is a substantive project outside of the scope of this document, which was written as a citizen over the course of a weekend. This document can therefore only highlight some potential issues identified in summarize an initial examination of the proposed “Privacy Shield” and does not constitute a final or deep review.

The European Commission and the US government, as well as some lobby groups, have extensively promoted the positive sides of “Privacy Shield” and the improvements compared to the previous “Safe Harbor” system. I will not repeat these points in this document. Instead this document focuses on possible problems, shortcomings and issues of the proposed system, to allow overall balanced view.

The level of knowledge varies between persons requesting this document. Unfortunately this means that some elements may be irrelevant, too generalized or explained in very simple terms for experts in the field of data protection and/or EU law.

In the following comments I am primarily (but not exclusively) focusing on a legal analysis. As an initial political comment, I would therefore like to highlight that I am of the view that the EU and the US should reach an agreement that replaces “Safe Harbor”. The aim of case C-362/14 was to create a situation where the political leaders on both sides of the Atlantic have to work towards a new deal that remedies the obvious problems disclosed by Snowden. I unfortunately feel that the current policy makers within the European Commission have not seen this situation as an opportunity to work towards an improved framework that would protect the fundamental right to privacy, but instead as a problem, that shall now be swept under the rug.

1.PRIVATE SECTOR / PRIVACY SHIELD PRINCIPLES Continue reading ““EU-US Privacy Shield” : Towards a new Schrems 2.0 Case ? “

Desperately searching for solidarity : the EU asylum saga continues

ORIGINAL PUBLISHED ON CDRE SITE (5 AVRIL 2016)

par Jean-Baptiste Farcy, Eimear O’Neill and David Watt,  (Odysseus Network, OMNIA)

The “refugee crisis” has disappeared from the headlines of European news, of course in part because of the Brussels terror attacks, but also apparently because the agreement between the EU and Turkey concluded on 18th March seems, at least temporarily, to have reached its real goal: preventing migrants, including asylum seekers, from leaving Turkey in the direction of Greece. However, this does not mean that the crisis is over, even if the EU and its Member States want to forget this difficult chapter in their history.

We are therefore returning to the topic of EU solidarity, presenting what we learned at the Odysseus Network conference on 26 and 27 February, including the legal nature of solidarity, the reasons solidarity has failed and our hope for a better implementation of solidarity in the future.

1. The meaning of solidarity in EU law

Searching for solidarity in EU asylum and border policies requires that solidarity, the research subject, be defined. In the popular sense, solidarity refers to the existing relationship between a category of persons or entities which is the source of moral obligations. However, less straightforward is the legal nature and scope of solidarity. Indeed, solidarity is an ambiguous term in the sense that it lacks the precision of ordinary legal norms. Yet, solidarity is embedded in Article 80 of theTreaty on the Functioning of the European Union (TFEU) which is undoubtedly a hard law norm. Here lies the complexity for lawyers: Article 80 is hardly sufficiently concrete to oblige states to do anything particular, but it is material enough to be more than a nullity.

In order to clarify the legal construction of solidarity, it may be helpful to trace back to the Roman law origin of the term. Solidarity, in the Roman law of obligation, was a concept referring to the legal relationship existing between a group of people responsible for a debt. This concept of solidarity still exists in civil law tradition but it is most likely that the drafters of Article 80 distanced themselves from it as the necessary ex ante contract is absent here.

Another reading of Article 80 can arguably be based on the French social tradition. Here solidarity is grounded in the real existence of a social community, and solidarity is what binds individuals together according to Emile Durkheim. While this conception of solidarity was likely to be more influential in the framing of primary EU law, a social organism hardly exists at a pan-European level as the 2004 French and Dutch referenda on the Treaty establishing a Constitution for Europe demonstrated. The use of the term “solidarity” in Article 80, as in other provisions of the TFEU, could then be described as a dubious appropriation of an historical experience unfamiliar to the European construction. As a result, the constitution of an EU-wide solidarity was arguably bound to fail from the beginning as Article 80 remained empty in positivist terms.

Does it mean that the effectiveness of Article 80 ought to be void? The legal character of solidarity, as embodied in this provision, should not be dismissed too quickly, be it for its formal hard law nature. Given the theory of “effet utile”, a provision of EU law ought to be interpreted so as to best guarantee its practical effect. In that sense, Article 80 could be read as entailing both an obligation of means (engaging with others) and of result (reaching a fair result). It follows that it can be invoked in Court. Indeed, on the basis of Article 80 an infringement procedure could be brought either by the Commission (based on Article 258 TFEU) or by a Member State (based on Article 259 TFEU) for another Member State’s  failure to take its fair share of responsibility in the implementation of the EU asylum policy, and a precedent for this does exist (for instance in the common agricultural policy, see Case 39/72 Commission v. Italy of 7 February 1973). However, a functional executive body effectively securing the enforcement of the Common European Asylum System (CEAS) is missing at the EU level which allows for normative dumping or limited normative solidarity, as we have recently witnessed across Europe.

Once we agree that Article 80 is not deprived of any legal effectiveness, the question is: solidarity with whom? According to the wording of Article 80, solidarity is only considered among Member States. As a result, the claim that solidarity has an external dimension in relation with third countries seems difficult to uphold, the extent of solidarity among Member States having yet to be defined, and Article 8 of the Treaty on European Union (TEU) hardly constitutes a sufficient legal basis either. More fundamentally, the fact that solidarity is only conceived in the context of inter-state relations is illustrative of the prevailing narrative. Indeed, the principle of solidarity and fair sharing of responsibility which ought to govern the CEAS is exclusively framed so as to meet the needs of the States, not the individuals. Therefore, a change of paradigm may be needed in order to move towards vertical solidarity, focusing on the effective protection of asylum seekers’ rights. The debate should then be reframed to concentrate on solidarity towards individuals in need of international protection rather than solidarity among Member States.

From that perspective, as long as relocation between Member States does not take into account, at least to some extent, the preferences of asylum seekers it cannot work as it remains synonymous with coercion for them. In a common area of  Freedom, Security and Justice without internal borders, refugees should arguably be allowed to move throughout the Union while maintaining their rights, in a similar fashion, for instance, to the European protection order of Directive 2011/99 of 13 December 2011. This would first require that the European asylum system be more common and systematic than it actually is.

The lack of normative solidarity accompanied by the lack of physical solidarity have arguably paved the way of the current asylum crisis that has also transformed into a governance crisis. Indeed, the asylum acquis was designed for “beautiful weather” but, as the storm approached, the inherent weaknesses of the CEAS have only become more obvious.

2. Lacking solidarity in the EU Asylum Policy 

Continue reading “Desperately searching for solidarity : the EU asylum saga continues”

TOWARDS A REFORM OF THE COMMON EUROPEAN ASYLUM SYSTEM AND ENHANCING LEGAL AVENUES TO EUROPE

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL (LEAKED  VERSION NOT-FINAL)

Migration has been and will continue to be one of the defining issues for Europe for the coming decades. Underlying trends in economic development, climate change, globalisation in transport and communications, war and instability in neighbouring regions, all mean that people will continue to seek to come here – for refuge, for a better life or following their close family. European countries will continue to stand steadfast in meeting their legal and moral commitment to those who need protection from war and persecution. And, as their own demographics evolve, they will need to take advantage of the opportunities and benefits of attracting foreign talents and skills.

In a continuing response to the ongoing migration and refugee crisis, on 10 February the Commission reported1 on the priority actions taken under the European Agenda on Migration to address the immediate challenge of restoring order on the Eastern Mediterranean/Western Balkans route. Following the European Council meetings of 18-19 February and 17-18 March and the meeting of the Heads of State or Government of 7 March3, the Commission will continue to provide support to Member States to implement all the agreed elements to stem disorderly irregular migration flows, protect our external borders, and safeguard the integrity of the Schengen area, including in particular the decisions on relocation, the hotspots and measures to ensure returns and readmissions, whilst ensuring effective access to asylum procedures for those in need of international protection.

Applying the current rules and improving the functioning of existing tools and mechanisms is key to regaining control of the present situation. But at the same time, as noted in the conclusions of the European Council of 18-19 February and those of 17-18 March4, it is time for progress to be made in reforming the EU’s existing framework so as to ensure a humane and efficient asylum policy. There are significant structural weaknesses and shortcomings in the design and implementation of European asylum and migration policy, which the crisis has exposed. The EU now needs to put in place the tools to better manage migration flows in the medium and long term, in line with the approach set out in the European Agenda on Migration.

The overall objective is to move from a system which by design or poor implementation places a disproportionate responsibility on certain Member States and encourages uncontrolled and irregular migratory flows to a fairer system which provides orderly and safe pathways to the EU for third country nationals in need of protection or who can contribute to the EU’s economic development. The EU needs a robust and effective system for sustainable migration management for the future that is fair for host societies and EU citizens as well as for third country nationals and countries of origin and transit. For it to work, this system must be comprehensive, and grounded on the principles of responsibility and solidarity.

Over the past months, significant steps have been taken to tackle irregular migration resolutely and manage the EU’s external borders more efficiently. It is essential that the proposed Regulation establishing a European Border and Coast Guard5 is adopted by June at the very latest so that it can start functioning during the summer. Implementation of the Action Plans against migrant smuggling6 and on return7 is also progressing, with all relevant Agencies and Member States having scaled up their work in this area.

But reducing irregular flows to and within Europe, and protecting our external borders, can only happen effectively if we look at the migratory phenomenon in a broad and comprehensive perspective: this means that we need at the same time to enhance legal and safe pathways to Europe, to improve the use and implementation of existing legal migration instruments, to strengthen the Common European Asylum System as well as to continue tackling the root causes of migration. If we want to improve our way of managing migration, we have to become better at attracting the skills and talents that we will need in the future, and at reaping the benefits of migration by ensuring effective integration and participation into the host society of all -refugees or legal migrants.

Together with the other measures following the European Agenda on Migration, this Communication sets out steps to be taken towards a more humane, fair and efficient European asylum policy, as well as a better managed legal migration policy.

  1. TOWARDS A ROBUST AND SUSTAINABLE COMMON ASYLUM POLICY

1.1 Inherent weaknesses of the Common European Asylum System in time of migratory crisis Continue reading “TOWARDS A REFORM OF THE COMMON EUROPEAN ASYLUM SYSTEM AND ENHANCING LEGAL AVENUES TO EUROPE”

WORTH READING : U.S.-EU Cooperation Against Terrorism

REPORT PUBLISHED BY STATEWATCH

by Kristin Archick 

Summary

The September 11, 2001, terrorist attacks on the United States and the subsequent revelation of Al Qaeda cells in Europe gave new momentum to European Union (EU) initiatives to combat terrorism and improve police, judicial, and intelligence cooperation among its member states. Other deadly incidents in Europe, such as the Madrid and London bombings in 2004 and 2005, respectively, injected further urgency into strengthening EU counterterrorism capabilities.

Among other steps, the EU has established a common definition of terrorism and a common list of terrorist groups, an EU arrest warrant, enhanced tools to stem terrorist financing, and new measures to strengthen external EU border controls and improve transport security.

Over the years, the EU has also encouraged member states to devote resources to countering radicalization and terrorist recruitment; such efforts have received renewed attention in light of concerns about the threats posed by European fighters returning from the conflicts in Syria and Iraq, highlighted most recently by the November 13, 2015, attacks in Paris, France.

Promoting law enforcement and intelligence cooperation with the United States has been another top EU priority since 2001. Washington has largely welcomed enhanced counterterrorism cooperation with the EU. Since 9/11, contacts between U.S. and EU officials on police, judicial, and border control policy matters have increased substantially.

A number of U.S.-EU agreements have been reached; these include information-sharing arrangements between the United States and EU police and judicial bodies, U.S.-EU treaties on extradition and mutual legal assistance, and accords on container security and airline passenger data.
In addition, the United States and the EU have been working together to curb terrorist financing, strengthen transport security, and address the foreign fighter phenomenon.
Nevertheless, some challenges persist in fostering closer U.S.-EU cooperation in these fields.
Among the most prominent and long-standing are data privacy and data protection issues.
The negotiation of several U.S.-EU information-sharing agreements, from those related to tracking terrorist financial data to sharing airline passenger information, has been complicated by EU concerns about whether the United States could guarantee a sufficient level of protection for European citizens’ personal data.
EU worries about U.S. data protection safeguards and practices were further heightened by the unauthorized disclosures of U.S. National Security Agency (NSA) surveillance programs in mid-2013 and subsequent allegations of U.S. collection activities in Europe.
Other issues that have led to periodic tensions include detainee policies, differences in the U.S. and EU terrorist designation lists, and balancing measures to improve border controls and border security with the need to facilitate legitimate transatlantic travel and commerce.
Congressional decisions related to data privacy, intelligence-gathering, border controls, visa policy, and transport security may affect how future U.S.-EU counterterrorism cooperation evolves.
EU officials have welcomed passage of the Judicial Redress Act (P.L. 114-126) to provide EU citizens with a limited right of judicial redress for privacy violations in a law enforcement context, but they have expressed unease with some provisions in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (passed as part of P.L. 114-113 in the wake of the Paris attacks and heightened U.S. concerns about European citizens fighting with terrorist groups abroad).
Given the European Parliament’s growing influence in many of these policy areas, Members of Congress may be able to help shape the Parliament’s views and responses through ongoing contacts and the existing Transatlantic Legislators’ Dialogue (TLD). This report examines the evolution of U.S.-EU counterterrorism cooperation, current issues, and the ongoing challenges that may be of interest in the 114th Congress.

NB Also see CRS Report R44003, European Fighters in Syria and Iraq: Assessments, Responses, and Issues for the United States, coordinated by Kristin Archick.

FULL REPORT : U.S.-EU  Cooperation Against  Terrorism  Continue reading “WORTH READING : U.S.-EU Cooperation Against Terrorism”

VERFASSUNGSBLOG :How to protect European Values in the Polish Constitutional Crisis

ORIGINAL PUBLISHED HERE (30/03/2016)

by  

The Polish crisis puts Europe to the test. It raises hard questions and requires fine answers. These are, in a nutshell, the points I made on the panel at the Berlin-Brandenburg Academy of Sciences and Humanities on March 14:

Is the Polish Development ‘Our’ Business?

In her talk before the EU Parliament, the Polish prime minister stressed that Poland is a sovereign country. She called to respect the current government’s democratic mandate. Indeed, sovereignty and democracy are fundamental values. Any interference from outside Poland requires strong grounds. I want to make a normative and a functional argument to state that the Polish development may indeed concern us—us, that is, the European citizens and the European institutions we have set up.

The normative argument is that the European Union organizes a community of states that profess allegiance to a set of fundamental values—among others, democracy, the rule of law, and human rights. These values are open-ended but not indeterminate. The question the Polish legislation raises is whether disrespecting decisions by the constitutional court and dismantling the separation of powers is covered by these values. To me, this cannot be: ‘democracy through law’ is what we stand for; the legal identity of the European project is that of a ‘community of law’. Hence, our own self-understanding is at stake.

The functional reason is that the European legal space presupposes mutual trust. European law operates on the presumption that all institutions are law-abiding. Otherwise, the legal edifice crumbles. When the presumption is rebutted, a systemic deficiency in the rule of law emerges that threatens the very existence of European law and integration. If a country defies its own constitutional court at the cost of constitutional crisis, how can we expect European law to be respected when it does not suit the government?

II. What Are the Instruments?

However, there is no reason to despair. Though there is no silver bullet, many instruments can convince the Polish government to follow European values. These are the Holy See, the United Nations, the OSCE, NATO, the Council of Europe, the European Union, and other states, all of which have their own instruments. Very few have been deployed so far. Currently, the most important are the Council of Europe’s Venice Commission opinion and the European Union’s rule of law framework. They support a dialogue with the Polish government and a European public debate on what went wrong and how to right the problem.

These instruments are not for the impatient. Of course, neither an opinion by the Venice Commission nor a recommendation of the EU Commission can force the Polish government to change its stance. Their potential also relies on the possibility of further steps, and much of the discussion is held up here. Many feel helpless because they view the Article 7 TEU mechanisms—including the freezing of payments—as totally impractical. Much of that is due to Manuel Barroso unwisely calling these mechanisms a ‘nuclear option’. That qualification stuck: today, anybody who proposes to use the Article 7 TEU mechanisms appears as irresponsible as someone who proposes to press the nuclear-weapons button. However, a sanction under Article 7 TEU does not devastate entire countries; actually, it supports basic values. It is an instrument like the others, legal and legitimate, an instrument that—as all others—needs to be deployed wisely.

Many also consider the Article 7 TEU mechanism impractical in the Polish case because its para 2 imposes a very high voting threshold. This position, however, overlooks at least two features. The first is that a first sanction falls under Article 7 para 1 TEU: the Council can make the determination by four fifths of its members, i.e., 22 Member States, that a Member State exhibits ‘a clear risk of a serious breach’. This determination is a sanction by itself; and this is why the Polish government wants to avoid it so much.

Moreover, even the threshold Article 7 para 2 TEU requires does not seem unrealistic. Of course, the leader of the Polish governing party is in close contact with the Hungarian prime minister. However, there is a big difference between the Hungarian and the Polish reforms: Hungary respected the formal rule of law, which is currently one of the core issues with Poland. Given the centrality of Europe being ‘a community of law’ and the help that the Hungarian governing party has received from its fellow members in the European People’s Party in the past, I see a realistic chance that even the current Hungarian government does not stand with the PiS government in undoing Europe; a possible abstention would not prevent a decision from being adopted.

III. How to Deploy the Instruments?

There are many instruments and many institutional actors. This can be a handicap because diverging strategies or uncoordinated statements may lead to reciprocal weakening. Here, inspiration can be taken from the 1990s when the Council of Europe and the European Union operated hand-in-hand in order to help the Central and Eastern European countries become constitutional democracies. The general division of labour, which proved successful, was that the Council of Europe (including its Venice Commission) set the substantive standards while the European Union added the compliance-‘pull’ through the prospect of membership. The Council of Europe is much less suspected of bullying, which provides legitimacy when it comes to formulating concrete standards on how to be a constitutional democracy.

For that reason, it seems important in the given case that all actors and in particular the EU rally behind the opinion of the Venice Commission of 11 March 2016. The EU does not need to define what is required from a Member State under Article 2 TEU, a very difficult exercise indeed, but can rely on what the Venice Commission asks for, in particular to respect the rule of law.

When deploying these instruments, it is important to do so in a dialogical way. One element of that is to stress that what is required is nothing other than to stand by Polish identity. The Polish constitution of 1791 is the first modern written constitution in Europe and a beacon of European constitutionalism. Though only 14 months in force, it proved an icon of Polish identity in the 123 years that Poland did not exist as a sovereign country, and was taught all those years by eminent scholars such as F. K. Kasparek or J. B Oczapowski. They embedded constitutionalism deeply into Polish identity. Polish administrative law—the rule of law limiting the executive— was even taught in German prison camps during World War II, for example by J. S. Langrod or F. Longchamps de Bérier. Indeed, few have fought for those European values as much as the Poles have done and certainly will continue to do so in the future.

A German version has been published in the Frankfurter Allgemeine Zeitung on March 31. 2016

(EP Study) The  proposal  for  a  European Border  and Coast  Guard: evolution  or  revolution  in  external border management?

THIS IS AN EXECUTIVE SUMMARY. (ACCESS TO THE FULL STUDY (40 pages) HERE)

by Dr. Jorrit Rijpma

The Commission proposal for a European Border and Coast Guard Authority brings together a reinforced (and renamed) Frontex – the European Border and Coast Guard Agency (EBCGA) – and the Member States’ border guard authorities under the umbrella of a European Border and Coast Guard (EBCG), making them jointly responsible for the management of the external borders. The proposal defines for the first time the notion of European integrated border management. It significantly broadens the scope of the new Agency to include internal security and measures within the area of free movement. The proposal reinforces both Frontex’s regulatory and operational role. In addition, it gives the  Agency  a  supervisory  role,  placing  it  in  charge  of  Vulnerability  Assessments.

As such, the EBCG proposal is an important next step in the progressive Europeanisation of external border management. That said, the proposal is not a revolutionary leap forwards, as it preserves the fundamental premise that the Agency neither has its own border guards nor powers of command and control over national border guards.

Still, a proposal of this complexity, with substantial financial implications and an obvious impact on fundamental rights, deserves careful consideration.

The proposal does not address some key questions as regards accountability for operational activities at the external borders and is rather likely to add to the current unclear division of responsibilities. There is, moreover, a danger of placing unrealistic expectations on the Agency.

It seems contradictory that Member States would be willing to accept more binding obligations under this proposal, while nothing prevents them from furnishing the Agency with the necessary tools now. Likewise, it would be naïve to think that greater powers and a new name for Frontex might suddenly remedy structural   flaws in  some Member  States’ external  border  management   systems.

Although the current crisis may have exposed shortcomings in Frontex’s current legal framework, the proposal does not constitute a genuine emergency measure designed to tackle a short-term problem. Therefore, if this proposal is to stand the test of time as the regulatory framework for external border management, it is important to carefully consider the  structural   implications of  the  rules currently being  considered for  adoption.

With this in mind, this analysis highlights some of the central challenges in the new EBCG framework  and provides  some  recommendations  on  how these  might  be addressed.

Supervisory  role

The Agency’s supervisory role also entails drawing up Vulnerability Assessments to identify operational  weaknesses  in   external  border  management.   In  this  regard, it is  important  to:

– Clarify   the   relationship   between   the   Schengen   Evaluation   Mechanism   and   the Vulnerability  Assessment  model.

– Ensure  that  the   Agency’s  supervisory  role  does not  prejudice  working  relations in the field of operational cooperation.

– Introduce a fundamental rights component into  the  Assessments.

Regulatory  role

Under the proposal, Member States would be obliged to provide the Agency with relevant information  for its  risk  analysis.

– A more specific explanation of what constitutes relevant information could help to  clarify the  extent of this obligation.

– If the Agency were to be given access to European databases, this would have to be under strict conditions, taking into account relevant data protection legislation.

Operational  role

Availability of human  and  technical  resources

The proposal aims to remedy the current lack of human and technical resources. As such, in emergency situations, Member States would be required to provide border guards, with no possibility, as is currently the case, to invoke an emergency situation requiring their deployment at home. Similar, yet weaker provisions have been included as regards the obligation to make available technical equipment.

The Agency will be allowed to acquire its own  equipment.

In addition, the Commission proposal provides for a right to intervene where a Member State does not follow up on the recommendations from the Vulnerability Assessment or in a situation where insufficient external border controls would put the overall functioning of the Schengen area at risk. This latter provision has, however, been amended in the Council text, which provides for a similar mechanism for reinstatement of the internal borders as under article 26 of the  Schengen  Borders  Code.

– The unqualified obligation to make border guards available for rapid border  interventions and the ‘right to intervene’ under the Commission’s proposal arguably contravene the Member States’ ultimate responsibility for internal security  under the Treaties (Article  4(2) TEU and  Article  72 TFEU).

Expansion  of tasks  and  powers  of  guest  officers

Guest officers’ powers may be considerably broadened by the host Member State, allowing these officers to act on its behalf. Guest officers would also have automatic access to European  databases. The proposal  should:

– Clearly state that guest officers act at all times within the scope of EU law and hence  within the  scope of the Charter of Fundamental Rights.

– Clearly state that, to the extent that national powers are delegated to guest officers, these officers should be considered to act as agents of the host Member State for the purpose of  determining  international responsibility.

 Hotspot  approach

The proposal gives the Agency a key role in the hotspot approach.

This is problematic as it seems to contradict the multi-agency purpose and nature of the hotspot approach, risking a one-sided focus on border control.

The Commission is thus much better placed to coordinate the activities  of  the Migration  Management  Support  Teams.

-The hotspot approach and its legal and operational framework require prior definition, preferably in a separate legal framework, before making the Agency responsible for its functioning.

– If the Agency were to take primary responsibility for the hotspots, a reference to international protection should be included in the concept of integrated border  management.

Return  cooperation

The Agency would gain significant operational powers in the area of return with three new on-call lists of Member State officials: forced return monitors, forced return experts and return specialists.

The proposal provides for three types of return operations: return from a combination of Member States organised and carried out by the Member States and coordinated by Frontex; collecting return operations where the means of transport and return escorts are made available by a third country; and mixed return operations, where a number  of returnees  are transported   from  one third  country  to  another.

There are a number of important concerns as regards the provisions on return that need to be  addressed.  It  is  important to:

– Detail the tasks, powers and responsibilities of these officials. Attention should be paid to the specific legal regime  applicable  on board aircrafts.

– Extend reporting obligations to return operations and include a role for the Agency’s Fundamental Rights  Officer.

– Allow for collecting return operations only if the third country concerned is a party to  the European Convention on Human Rights (ECHR).

– Allow for mixed return operations only if there are sufficient guarantees that the            third country’s            return  decision           and            procedures      comply            with     EU fundamental rights standards.

Information  exchange  and  data  protection

The proposal would transform the Agency into the central hub of information exchange of the EBCG, expanding its powers to collect and transmit data not only on people suspected of cross-border crime, but on irregular third country nationals.

This requires sufficient data protection rules. As pointed out by the European Data Protection Supervisor (EDPS), the proposal   has important  flaws  in  this regard  and  requires  clarification.

The proposal  should:

– Clearly distinguish between the different purposes for which data is processed, because migration management and criminal law enforcement are covered by separate legal regimes.

– Exhaustively   list  the purposes for  which  data  may be processed.

– Indicate not only the categories of people whose data may be processed, but also specify which data may be processed.

– Clearly distinguish between the transfer of data to third parties within and outside the European  Union.

Operational  cooperation with  third  countries

The proposal would allow for joint operation activity on the territory of third countries. Cooperation with third countries should not allow the Agency and EU Member States to lower  EU  standards.

As  such:

– Cooperation should be limited to third countries that are party to the ECHR and

the Geneva Convention and  its Additional  Protocol.

– The safeguard whereby liaison officers may only be posted to countries with human  rights-compliant  border practices should be reintroduced.

Coastguard

The provisions on the role of the Agency and the Member States in a European Coast Guard are the least developed part of the proposal and are largely limited to an obligation to exchange information. It is therefore important to clarify the extent to which this may involve  the  processing of  personal  data.  Furthermore, it  is important:

– To clarify the relationship between the military and the Agency in maritime border surveillance operations       and      any      other Member            State    military involvement in integrated  border management.

– To include Search and Rescue provisions to allow the Agency to play a more active SAR role  without affecting the international SAR framework.

Constitutional   considerations

It is submitted that, under the current rules on delegation of powers to Union bodies, it is not possible to delegate genuine executive powers to the EBCGA.

The Commission proposal respects these limits. Nonetheless, the removal of the ‘emergency situation’ exception for the deployment of human and technical resources, as well as the ‘right to intervene’, are at odds with the Treaty principle of ultimate responsibility of the Member States for their own internal  security. Moreover:

– Careful consideration should be given to which decisions are politically sensitive and should be reserved for the Management Board and which are more  technical and  operational  and  should be left to  the Executive Director.

Fundamental  rights considerations

The significant reinforcement of the tasks of the Agency without the transfer of genuine executive powers to the Agency (for the reasons set out above), as well as the explicit affirmation of a shared responsibility for European integrated border management, will only exacerbate  the existing conundrum as  regards shared  accountability.

While the introduction of an individual complaints mechanism is an important positive development, the Commission’s assertion that the mere existence of such a mechanism makes the Agency’s actions fundamental rights-compliant is clearly exaggerated.

Indeed, the  proposed  fundamental   rights mechanisms require  further  refinement:

– The complaints procedure provisions must lay down rules on format, content and deadlines or should empower the  Agency to   set such rules.

– The Executive Director’s obligation to suspend or terminate operations in the event of fundamental rights violations should be further detailed and should provide for a role for the FRO and take into account the results of relevant monitoring mechanisms.

– The obligation for the Agency to set up a fundamental rights monitoring mechanism – with a broad review of fundamental rights at the external border – should  be  reintroduced.

– The FRO’s obligation to report to the Consultative Forum should be reintroduced.

Continue to the FULL STUDY