Category: 1. EU and MS legal Order and Institutional framework

The new Europol: no more European FBI, not yet European NSA…

by Emilio DE CAPITANI

On November 30th the European Parliament Civil Liberties Committee “informally”  endorsed (by 43 votes to 5 with 4 abstentions) the text that the Council will soon adopt as “its” position on the post-Lisbon European Union Agency for Law Enforcement Cooperation and Training (Europol).

Following the “informal” interinstitutional practice of the so-called “legislative trilogues” (particularly the so-called “early second reading” agreements), the Chair of the LIBE Committee has already addressed a letter to the President of the Permanent Representatives Committee announcing that when the Council will formally send the text to the plenary, LIBE will recommend the Council’s text be approved  without amendments in the Parliament’s second reading so that the legislative procedure will be finalized and the “informally” agreed text (after some linguistic corrections) could be published in the coming months in the Official Journal.

I have already expressed my strong personal reservations on the legitimacy of such “informal” practices, notably because they are done in secret when treaties require the transparency of legislative debates (and negotiations) also for the Council. In the Europol case the latest public texts were: the first “reading” of the EP adopted on 25 February 2014 (at the end of the previous legislature) and the “general approach” of the Council  on 5 June 2014. Ten secret “trilogues” have been held in the following 16 months until suddenly, at the end of November 2015, a draft compromise has finally emerged and has been submitted to the vote of the Coreper and of the Parliamentary committee, paving the way to the “formal” legislative procedure.

Leaving aside European procedural (and democratic) intricacies, the text agreed (see below) is far below what could have been expected after the entry into force, six years ago, of the Lisbon Treaty. Because of the confidentiality of the negotiations, it is difficult to say now if such of a low-level compromise is due to the lack of ambition of the European Parliament or, more likely, of the EU Member States.

What is evident even from a quick reading, is that most of the possible improvements resulting from the Lisbon treaty have not been agreed and even if many things have apparently changed, the most important aspects are still as they were in the pre-Lisbon era (not to say the Maastricht era) and some new worrying aspects are taking shape.

First and foremost, the revision of the most important tool for police cooperation is taking place in the absence of a comprehensive post-Lisbon legally binding framework for police cooperation, as could have been done on the basis of art.87 of the TFEU.  So, even if the new Regulation recognises that “Large-scale criminal and terrorist networks pose a significant threat to the internal security of the Union and to the safety and livelihood of its citizens”  it  considers that such “EU internal security” matters should remain framed only by the Council and the Commission with “soft law” tools like the European Internal Security Strategy or the so-called “Policy Cycle”. The problem is that these tools associate the Member States only on a voluntary basis so there is no assurance that the common goals which have been defined will be reached nor is it possible to sanction those who do not contribute as was originally planned. Even the creation of a Center of excellence pooling important technical and human resources to fight Cybercrime or Terrorism as was (at last!) recently decided remains in the form of important opportunities offered to the EU member states and not of common binding tools. Unlike Frontex which is playing an increasing role in a well settled EU binding legislative framework (Schengen Border Code and EUROSUR), Europol is still floating in an unchartered legislative framework and building its own mission as a permanent laboratory or a taxi for Member states which are willing to use it. Last but not least, relying on “soft law instruments” makes the role of the European Parliament irrelevant, even if the latter try to follow up the initiatives taken by the Council and/or the Commission (a situation which is hardly acceptable for an EU which, after Lisbon, claims to be bound by democratic principles…) with non-binding resolutions.

This aspect should be very present in the EP’s mind as it has been co-responsible of EU policies linked with police and judicial cooperation in criminal matters for six years but for inexplicable reasons it continues to accept being marginalized, as happened with this draft Regulation in which the objectives of Europol’s activity will be defined only by …the Council and the Commission (not to speak of the EU Member States which are represented on its Management Board).

Even more surprisingly the European Parliament, which is also the Budgetary authority (which finances EUROPOL with 80/90 million euros per year), does not ask to have a say on the appointment of the Director of the Agency. Even in countries (such as the USA) where there is a clear distinction between the executive and the legislature the official responsible for federal agencies should have the approval of the Congress..

Even more worrying is the way in which the management of classified informations is framed. Here the draft Regulation takes the “originator principle” as the cornerstone of everything and places private entities, third countries and EU Member States or other EU and National agencies on the same ground. Now, in a European Union which claims to be founded on the principle of the rule of law, it is the legislator who should decide under which conditions information can be classified / declassified and has to be shared in the interest of the EU regardless of the good or bad will of the “originator”. Moreover, the principle of loyal cooperation should frame relations between EU institutions, agencies and bodies so that each one of them could fulfil its constitutional role regardless of the will of the “originator”.

Under this perspective the treatment that the European Parliament has accepted in this regulation is grotesque because it has accepted to be bound by the internal security rules of ….the Council and not by legislation to be adopted on the basis of art. 15 of the TFEU (and of the Charter). The point is not who should be the winner of an inter institutional game, as much as who among the EU institutions the European citizens can trust. By abdicating to its role the EP is thus deliberately weakening its own legitimacy and the democratic principles on which the EU claims to be founded.

Another weak aspect of the new text is the absence of a real link (and interdependence) with the judicial dimension of the European Freedom Security and Justice Area. Such a link, which is vital in the member states to avoid possible abuses on the police side, is practically absent in the new regulation which makes a vague reference to administrative agreements with Eurojust and plainly ignores its possible relation to the future European Public Prosecutor  who ” shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests,….” (art.86.2 TFEU). The point is that Europol, by claiming an increasing role in the collection and treatment of intelligence informations linked with Cybersecurity, Terrorism and PNR, is trying to become the main EU “intelligence information hub” which brings it closer to the model of an EU National Security Agency than to a European FBI as it was in its first phase.

A further weak aspect of the draft Regulation is the protection of personal data where the situation is so confused that, in a declaration attached to the text, the EP and Council already declare: “… that, following the adoption of the proposed General Data Protection Regulation and Data Protection Directive for data processing in the police and justice sector, including the new, soon to be created European Data Protection Board, and in light of the announced review of Regulation (EC) No 45/2001, the different mechanisms for cooperation between the European Data Protection Supervisor and the national supervisory authorities in this field, including the Cooperation Board set up in this Regulation, should in the future be reorganised in such a way as to ensure effectiveness and consistency and avoid unnecessary duplication, without prejudice to the Commission’s right of initiative.”

Many other points may be raised, but if you are really interested, have a look at the text below (which is over 90 pages long..).

Continue reading “The new Europol: no more European FBI, not yet European NSA…”

Can Schengen be suspended because of Greece? Should it be?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

A leaked Council document (see separate blog post) suggests in effect that the Schengen system should be suspended for up two years, due to ‘systemic deficiencies’ in the control of external borders by Greece. That would allow any Schengen States which wish to do so to maintain or introduce border checks on their ‘internal’ borders with each other. Probably not all Schengen States would take this opportunity, but many would (especially since a number of them already do so). This follows a recent press report in the Financial Times (paywalled), which states that some Member States are considering threatening to throw Greece out of the Schengen system, due to its management of refugees and migrants at the external borders.

It’s possible that the general threat to suspend Schengen is intended as a threat to suspend Greece only, but is simply badly drafted. Or perhaps the idea is to threaten to suspend the whole of Schengen, and pin the blame on Greece. Either way, in my view, this threat is seriously mistaken, for both legal and political reasons.

The Legal Framework

In principle, the Schengen system can’t be scrapped completely without amending the EU Treaties, since the Treaties refer to it several times. Instead, there are two types of possible suspensions: short-term (up to three months) and long-term (up to two years). The leaked Council document refers to use of the long-term suspension.

The short-term waiver rules have always formed part of the Schengen system. They allow individual Member States to reimpose checks on internal borders  for a short time, for reasons of public policy and public security. Over the years, those provisions have often been invoked by Member States, usually for a few days during an international summit or football tournament. This autumn, they have been invoked more often and for longer periods, as a response to the refugee crisis affecting the continent. Since this reintroduction is only allowed for a maximum period of six months, there is an upcoming legal problem if Member States with to prolong these controls past next spring.

But a newer, different set of rules apply to suspending a Member State from the Schengen system. As a response to the ‘Arab Spring’ of 2011, and a spat between Italy and France over responsibility for some Tunisians, the Schengen rules were amended in 2013 in order to provide for the collective reimposition of internal border controls for up to two years. Those amendments need to be read in conjunction with the rest of the rules which they amended. So I suggest you read them in the codified version (showing the amendments), which is set out in an Annex to the report which I wrote for the SIEPS thinktank on the revised rules (start on page 121).

These amendments were generally understood as providing in effect for the possible suspension of individual Member States from the Schengen system. However, that is not expressly set out in the rules, and the leaked Council document clearly intends something broader, since it refers explicitly to continuation of existing border checks, ie between Germany and Austria, not (only) between other Member States and Greece. But the role of individual Member States is still relevant, because this collective suspension of Schengen can only be triggered if there are ‘serious deficiencies’ in how one Member State applies the Schengen external borders rules.

The process would start with a Commission recommendation following a Schengen evaluation, according to the separate rules (also amended in 2013) on the process of assessing whether Schengen states comply with their obligations. If the Commission finds in its report that there are ‘serious deficiencies’ in a Member State complying with its external border control obligations, then it can recommend that this country take ‘specific measures’, including accepting assistance from the EU’s border agency, Frontex, and submitting plans for Frontex to assess.

If there is not enough action on settling these problems within three months, the process can escalate. In ‘exceptional cases’ where there is a ‘serious threat to public policy or public security’ in the Schengen area or parts of it, the Council can recommend ‘as a last resort’ to Member States that they reimpose border controls against that Member State for periods of six months, renewable up to the two-year maximum. It’s arguable that this process can be fast-tracked and be applied even without giving the Member State three months to fix its problems.  Since Member States would have to vote in favour of it in the Council (by a qualified majority), it can be assumed that most Member States would then follow this recommendation. The Council has to act on a proposal from the Commission, but Member States can request the Commission to make such a proposal.

In adopting this recommendation, the Council has to assess whether it will ‘adequately remedy’ the threat to public policy, as well as the ‘proportionality’ of the measure in relation to the threat. This must be based on detailed information, and consider the EU assistance which was provided or which could have been requested, the likely impact of the deficiencies in border control upon the threat to public policy or public security, and the impact on the free movement of persons.

The legality of suspending Schengen and/or sanctioning Greece

It’s not clear exactly where we stand in the process as regards Greece. The Commission has recently adopted a Schengen evaluation report, but it’s not public. It’s not even clear if that report concerns Greece (all Schengen states are evaluated). So it would take a while (three months after a formal finding of ‘serious deficiencies’, which hasn’t happened yet as far as I know) before Greece could be sanctioned, unless the process is fast-tracked.

Indeed, the Council document seems to be aiming to fast-track the process. It wants the Council already to request a Commission recommendation to suspend the abolition of border controls for up to two years. Since (as far as I am aware) there’s not even a finding of Greek ‘serious deficiencies’ yet, there’s obviously not yet a three month period during which those problems continued. And the Council document doesn’t even attempt to assess whether the substantive criteria apply; the intention simply seems to be to find some way to justify a longer period to continue the internal border checks which Member States have reintroduced recently.

If the current threats get to the stage of a Council Recommendation that border controls be reimposed, it’s not clear if Greece could sue the Council in the EU Court of Justice (since technically Recommendations are not binding), or would have to sue Member States for following the Recommendation instead. Individual travellers could also sue Member States in national courts for imposing border controls, indirectly challenging the legality of the Recommendation; national courts could then send the issue to the Court of Justice.

Procedural issues apart, is there a substantive case for suspending Schengen rules and reimposing border controls, because of ‘serious deficiencies’ due to Greek control of the external border? In my view, there are serious doubts that there is such a case, for two main reasons.

First of all, according to the Financial Times article, other Member States are annoyed because Greece did not accept the support of Frontex, register enough asylum-seekers, or request humanitarian aid to assist them. While the failure to request support from Frontex is referred to in the EU border controls legislation, the other issues are not. And for very good reason: because the failure to control the numbers of refugees at the external borders is NOT a breach of the Schengen rules.

This assertion may seem surprising, because the critics of the EU’s response to the refugee crisis – on either side of the argument – often assume that EU law requires refugees and asylum-seekers to be refused entry at the borders. From one side, the EU is criticised for letting refugees and asylum-seekers in, and therefore ‘not protecting its borders’. From the other side, the EU is criticised for establishing a ‘Fortress Europe’.

Both sides are clearly wrong – at least, on this specific legal issue. This follows from the Schengen Borders Code itself, which expressly exempts refugees from the rules on penalising non-EU citizens for unauthorised entry across the borders, and includes an exemption from the usual conditions on border crossing if the non-EU citizen is claiming asylum. It equally follows from the EU’s asylum procedures Directive, which requires Member States to process not only asylum applications made on the territory, but also those made at the border. (Of course, Member States don’t always fully comply with their EU legal obligations).

So it’s really the border crossing rule itself which is controversial, not Greece’s failure to apply it. There’s a political problem with the rule in practice, either because (from one side’s perspective) it is no longer keeping out enough people, or (from the other side’s perspective), it is too difficult for genuine refugees to reachEU territory without the risk of drowning or paying money to smugglers.

But for the purposes of finding that there are ‘serious deficiencies’ in Greek control of the external border, the point is that Greece is not failing in any obligation to stop asylum-seekers crossing the external borders – quite simply because there’s no such obligation. Just the opposite. Of course, due to the sheer scale of the numbers involved, it’s difficult for Greece to operate an effective asylum system, but that failure is subject to a wholly separate process. Indeed, the European Court of Human Rights and the CJEU have already said that Member States cannot send asylum-seekers back to Greece, because the asylum system has effectively collapsed there. The Dublin III Regulation sets out rules which apply in the event that the Dublin system has to be suspended for those reasons, and the EU has recently adopted Decisions (discussed here) to relieve the burden on Greece a little by relocating some asylum-seekers from that country.

Of course, some of those who cross the Greek border do not apply for asylum immediately, or later fail in their asylum applications. According to UNHCR statistics, about half of those recently arriving in the Greek island of Lesvos (the main destination) are coming from Syria and Iraq (countries with high refugee recognition rates) and half are coming from other countries, with lower recognition rates. In that context, it is legitimate to suggest that Greece ought to accept assistance from Frontex and other EU agencies, and that Frontex in particular has a role coordinating the fingerprinting and registration of people when they first arrive. (Fingerprinting of irregular migrants and asylum-seekers isn’t a panicked authoritarian response to the refugee crisis, as is sometimes suggested, but a long-standing EU law obligation, going back to 2003).

The second problem is the link between the Greek ‘deficiencies’ and the reimposition of border controls, either against Greece or between other Schengen states. There’s certainly no link between the deficiencies and the borders between Greece and other Schengen States, since none of those are land borders, and (would-be) asylum-seekers and refugees travel by land between Greece and other Member States. So checking people flying between Greece and other Schengen States would be hugely disproportionate to the relevant deficiencies.

What about border controls between other Schengen States? These are the controls that the Council document expressly wants to continue. Here there is a link between the people originally entering via Greece and later trying to cross the Austria/Germany border, for instance. But again, the real deficiencies are with the EU’s asylum system, not Greek border controls, since EU rules provide for admission of asylum-seekers. Asylum-seekers move on to other Member States because the Dublin rules were not drawn up with today’s increased numbers of asylum-seekers in mind, and Greece can’t manage the numbers that it would be responsible for under the rules. That’s certainly a problem – but that problem is notcaused by Greek deficiencies in external border controls. The EU has to use the legal instruments available under its asylum policy to try to fix it.

Political context

Although it’s not evident from the face of the document, the political context of the Council paper may be an attempt to convince Greece to agree to further measures relating to border control. That’s evident from the Financial Times article, which conveys several Member States’ allegations against Greece (summarised above). In turn, the Greek government has defended itself and made counter-allegations against the EU, which are summarised in a Guardian article.

In some ways, this resembles the attempt by some Member States this summer to coerce Greece to leave the euro ‘temporarily’. As I argued at the time, this process did not have a shred of legality, unless we use the creative argument that Greece had never legally joined the euro.

However, there are differences as regards Schengen. There is on paper a process to suspend Schengen rules temporarily; the only question is the correct interpretation of those rules. Undoubtedly some will not share my interpretation above, and would argue that defects in the asylum system are implicitly part of the assessment of whether there are ‘serious deficiencies’ in external border control. In the absence of case law to date, it’s an open question which of us would be correct. It’s also an open question whether the Commission – which has made much of its strong support for Schengen – would be willing to suggest a suspension for two years.

Even if it’s legal to threaten Greece this way, is it wise? The EU was heavily criticised for trying to strong-arm Greece as regards the euro – although technically it wasn’t the EU institutions making the threats last summer, but rather the parallel ‘Eurogroup’ bodies which are not an ordinary part of the EU’s political system.

Far better for the EU to redouble its efforts to help both Greece and the people concerned, by ensuring that there are decent reception centres and living conditions in the country, by making greater effort to ensure that the relocation system works, and by working with Turkey to genuinely improve the living conditions of refugees there, so that fewer of them want to leave (more on that recent EU/Turkey deal in a later blog post).

As regards Schengen itself, if a temporary suspension is strongly desired, it might be better to provide for it by means of a legislative amendment to the Schengen Borders Code (with a ‘sunset clause’ providing for its expiry, since permanent suspension would violate the Treaties) rather than by the indirect means of threatening Greece. Or an amendment to the rules on checks near the internal borders could justify some occasional checks in the event of dysfunctional applications of EU asylum rules, if fixing those rules proves politically impossible – as well it might.

EXCLUSIVE: LEAKED DOCUMENT REVEALS EU PLANS TO SUSPEND SCHENGEN FOR TWO YEARS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Comments by Steve Peers

The following is Council document 14300/15, dated 1 December 2015. It’s entitled ‘Integrity of the Schengen area’, and addressed to Coreper (the body consisting of Member States’ representatives to the EU) and the Council – presumably the Justice and Home Affairs ministers meeting Thursday 3 and Friday 4 December.

The first three parts aren’t exceptional, but part 4 calls for the start of a process to officially allow the reimposition of internal border controls in the Schengen area for up to two years. Legally, this has to be triggered by ‘serious deficiencies’ in the border control of a particular Member State.

This has been reported as a plan to suspend Schengen as regards Greece. But the wording of the document suggests a much broader intention – applying to the whole of Schengen. This intention is clear from the reference to continuing in force the border controls that many Member States have imposed this autumn, which can only be imposed for a maximum period of six months. The purpose of using the ‘serious deficiencies’ clause, instead of the normal clause on suspending Schengen, is clearly to allow a much longer suspension period. It may be that not every internal border would be subject to checks, but the intention seems to be to issue a blank cheque to this effect.

More on the legal details (and whether this is even legal) in a parallel blog post shortly.

Document follows:

INTRODUCTION

The migratory and refugee crisis has put the application of the Schengen acquis and of the asylum acquis under severe pressure during the last years, with an unprecedented influx of migrants over the last months. In this context, several Member States have temporarily reintroduced border control at their internal borders, with reference to a serious threat to public policy or internal security as provided for by the Schengen Borders Code. Temporary controls at internal borders have also been carried out by a Member State for reasons related to terrorism, following the attacks in Paris on 13 November 2015. In addition, some Member States have taken specific measures to reinforce the control at their external borders.

In its Conclusions of 9 November 2015 on measures to handle the refugee and migration crisis, the Council has identified a number of measures to implement fully the orientations already agreed by the European Council [1]. These measures address a wide range of issues, including in particular reception capacities, hotspots, relocation, return, readmission, resettlement,  lack of cooperation of migrants, contingency planning, the functioning of the Schengen area, external and internal borders, smuggling in human beings, visa policy, a common information strategy and the use of the Integrated Political Crisis Response (IPCR).

In the Conclusions adopted on 20 November 2015 on Counter-Terrorism after the Paris terrorist attacks by the Council and Member States meeting within the Council it was agreed to implement reinforced measures for the purpose of fighting terrorism, including strengthening controls at external borders[2].

Under point 9 of its Conclusions of 9 November 2015, the Council decided “to conduct at the December Justice and Home Affairs Council, on the basis of the 8th bi-annual reporting by the Commission, a thorough debate on the functioning of the Schengen area (1 May 2015 – 31 October 2015) and on the lessons learned from temporary reintroductions of controls at internal borders”.

In Coreper on 26 November 2015 the Commission indicated, however, that the said 8th bi-annual report would not be ready for the meeting of the JHA Council in December 2015, but would be integrated in the future border package. The Presidency concluded that Ministers would be invited to hold a debate on the functioning of the Schengen area on the basis of a Presidency paper.

With a view to preparing this debate, the Presidency issued a questionnaire on lessons learned from temporary introductions of controls at internal borders [3]. The Presidency has prepared the present paper in the light of replies from Member States, having in mind also major issues that have been raised during recent months regarding the functioning of the Schengen area, with a focus on border controls.

ISSUES FOR DISCUSSION

The Presidency invites the Council to hold a debate on the functioning of the Schengen area and to address in particular the following issues related to internal and external border controls.

  1. Consultations between Member States – Based on the information available to the Presidency, it appears that, in situations where some Member States have applied recently Article 25 of the Schengen Borders Code to reinstate temporarily controls at internal borders, there has not been sufficient prior consultation with other Member States.  The same has been noticed for technical reinforcement of borders between border crossing points, for changes in national policies leading to filter migrants at border crossing points and for organizing the transit of migrants from one border to next.  This has severely hindered the possibility for neighbouring countries to prepare themselves for changes in migratory routes and for all Schengen countries to handle migratory flows in a coherent manner.

In addition, procedures approved by Coreper in March 2015 for improved information sharing on temporary reintroduction of border controls at internal borders have not been fully respected in all cases.

The Presidency proposes that:

–           even in emergency situations falling under Article 25 of the Schengen Borders Code and requiring immediate action, a Member State deciding to temporarily reintroduce internal border controls should make all efforts to inform neighbouring Member States sufficiently in advance to allow neighbouring Member States to adjust to the new situation and, where possible, to cooperate to reduce the negative impact of the reintroduction of internal border controls;

–           Member States reconfirm their commitment to fully apply the procedures for improved information sharing on temporary reintroduction of border controls at internal borders agreed in Coreper in March 2015. [4]

 

  1. Securing external borders – A number of irregular migrants entering the EU, or exiting an EU country to re-enter later in the EU, pass through the so-called “green land borders” (the parts of the land borders between border crossing points). According to Frontex, more than 1,2 million illegal border crossings have been detected at the EU external borders for January – October 2015, an increase of 431% compared with the corresponding period in 2014. In addition, a number of illegal crossings have not been registered. The exact figure is unknown.

Also in the context of the fight against terrorism, the Council concluded on 20 November 2015 that control at the external borders which are most exposed should be strengthened “in particular by deploying, when the situation so requires, rapid border intervention teams (RABITs) and police officers in order to ensure systematic screening and security checks”.

In view of the critical situation that the EU is currently confronted with, the Presidency proposes that:

–           considerably more efforts should be made to prevent illegal border crossings (entry and exit) through the external “green land borders” and to ensure that external borders are crossed only at the border crossing points referred to in Article 4, subject to the exceptions in Article 4(2), of the Schengen Borders Code;

–           RABITs are deployed as necessary for that purpose. This is at present  particularly relevant for external land borders in relation to the Western Balkan countries route;

–           A Frontex operation at the northern borders of Greece be deployed without delay to address severe difficulties encountered with neighbouring countries.

  1. Increasing checks regarding illegal migration – Irregular migrants who have entered the Schengen area and have not been registered at their arrival should not be able to stay in that area undetected for long periods of time.


The Presidency proposes that:

–           the possibilities for checking persons inside the Schengen area, including by the use of relevant databases, are fully exploited to ensure that irregular migrants are detected and registered and their cases processed.

  1. Addressing serious deficiencies in external border controls – Several Member States have recently reintroduced temporarily internal border control pursuant to Articles 23-25 of the Schengen Borders Code. Under these provisions, a Member State may not implement such controls for more than a total period of six months. A prolongation of this situation would require the adoption by the Council, upon a proposal from the Commission, of a recommendation in accordance with Article 26 of the Schengen Borders Code. Such recommendation may be adopted in exceptional circumstances to address a situation where a Schengen evaluation has identified persistent serious deficiencies relating to external border control and the measures referred to in Article 19a of the Schengen Borders Code are not effective. Where in such cases the overall functioning of the area without internal border control is put at risk, and insofar as the exceptional circumstances constitute a serious threat to public policy or internal security within the area without internal border control or within parts thereof, the period for the reintroduction of internal border control may be extended up to a total maximum of two years.

On this basis, the Presidency:

–           proposes that the Council invites the Commission to consider presenting a proposal as appropriate pursuant to Article 26 of the Schengen Borders Code for a Council recommendation that one or more Member States decide to reintroduce border control at all or at specific parts of their internal borders;

–           considers that, at the same time, all possible measures should be taken aimed at strengthening the normal functioning of the Schengen area, in particular by reinforcing the control of external borders.

Supreme allies: Top national courts and the implementation of EU law

ORIGINAL PUBLISHED ON “DESPITE OUR DIFFERENCES”

by Daniel Sarmiento, (*)

In a short time-frame, two high courts of two Member States, the French Cour de Cassation and the Spanish Tribunal Constitucional, have delivered two important judgments on the implementation of EU Law by lawyers and domestic courts. The two decisions touch different subject-matters and deal with different claims, but they are equally relevant for what they represent for the correct implementation of EU Law. As I said a few weeks ago in a previous post, national high courts are becoming key players in EU Law, and the Court of Justice should cherish and look after this highly valuable ally.

Last May, the French Cour de Cassation ruled in favor of a former worker who had sued his lawyer for not making a proper defense of his client (see the judgment here). The lawyer did not invoke the Court of Justice’s case-law stated in the well-known cases of Mangold, Kücükdeveci, Petersen, etc., on discrimination on the grounds of age. As a result of it, the worker lost his case against his former employer. The Cour de Cassation stated that the claimant’s chances of success in case of having invoked the Court of Justice’s case-law were up to 80%. Therefore, the certainty of the loss suffered entitled the claimant to successfully claim damages from his lawyer.

Yesterday, the Spanish Constitutional Court, in plenary formation, ruled in favour of another worker whose claim based on EU Law was plainly ignored by the High Court of Madrid (see the judgment here). Following the Court of Justice’s case-law in the cases of Gavieiro Gavieiro, Lorenzo Martínez and others, which solved a series of cases identical to the one of the claimant, it was obvious that this case-law applied and solved the case. However, the High Court of Madrid ignored this and dismissed the claimant’s appeal.

The Spanish Constitutional Court has now stated that any jurisdiction in Spain that ignores a judgment of the Court of Justice is breaching the fundamental right to a fair trial, as provided by article 24 of the Spanish Constitution. This gives any claimant in such circumstances the chance of invoking another ground of appeal, and, above all, the use of the special procedure for the protection of fundamental rights before the Constitutional Court (recurso de amparo).

These two judgments impose considerable responsibilities on lawyers and judges. The French decision sets a high standard of professional expertise on practitioners, especially on those who are highly qualified and (as in the case of France) allowed to plead before the highest courts of the country. The Spanish judgment is a nice reminder for all courts in Spain that the case-law of the Court of Justice is binding in the strongest possible way, and therefore binding for all courts. Both cases have in common a total absence of reference to EU Law, by the lawyer in his submissions in one case, and by a court in its judgment in another.

Therefore, the sum of both decisions is not revolutionary, because it is obvious that a total lack of reference to the applicable law, whether it is national or EU Law, raises serious issues about the decision at stake. However, it is important that the highest courts of Member States are assuming the task of ensuring the correct application of EU Law. This is of course a matter for the Court of Justice, but also for its domestic counterparts too. And it is nice to see that these cases have been solved without the need to make a preliminary reference to the Court of Justice. High courts know what their role is and how it must be put into practice under national law. Now it is time for lawyers and for the remaining domestic courts to act accordingly.

*Professor of EU Law at the University Complutense of Madrid

The EU or the Commonwealth: a dilemma for the UK – or a false choice?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS on Sunday, 29 November 2015

by Steve Peers

The United Kingdom has its finger in many pies: the EU, NATO, the United Nations Security Council and the Commonwealth, to name just a few. Of these, the Commonwealth – which has just finished its latest summit meeting – obviously has the closest specific link to British culture and history, since it’s mainly comprised of our former colonies. (A few Commonwealth members are not former colonies, and some obscure ex-colonies like the USA chose not to join. For a full list of members, see here).

Like many British citizens, I have friends and relatives in many Commonwealth countries: Canada, India, New Zealand, Australia, Singapore and South Africa. But I also have friends in the rest of the EU, as well as a professional interest in EU law. There’s no incompatibility between the two at a personal level: we can all enjoy poutine as well as paella, or watch Antonio Banderas one day and Hugh Jackman the next. But is the same true of the UK’s trade relationships?

When the UK joined the EU over forty years ago, it sundered special trade links which it had with most of the Commonwealth, and replaced them with trade links with the EU (as it’s called now). One of the arguments sometimes invoked in favour of the UK leaving the EU in the forthcoming referendum on membership is that the UK could reverse this process, reviving its Commonwealth trade.

But a lot has changed in forty years. In my view, what’s true for individuals is also true for the country as a whole: the UK does not have to choose between trade with the Commonwealth and trade with the EU, but can (and increasingly does) have both. This blog post explains why. (I’ll write another post on the issue of the EU’s trade with non-Commonwealth countries in future).

Background

Back in 1973, the UK had to end special trade ties with the Commonwealth because the EU is a customs union, which (according to the definition set out in international law) means that it has common trade rules with the rest of the world. The EU has power to sign certain types of trade deals, instead of its Member States (although in practice those deals are usually subject to Member States’ unanimous consent). But the EU’s powers don’t extend to all types of ‘trade deals’, as that phrase is used by non-specialists. Those powers apply to the imposition of taxes at the border (known as tariffs) or other economic regulation of trade between countries, but not to commercial agreements with other countries to buy British goods. So, for instance, the UK and India were free to conclude £9 billion worth of trade deals of that broader type during the recent visit of the Indian Prime Minister.

It’s sometimes argued that trade deals are irrelevant, because ‘governments don’t trade, businesses do’. While it’s true to say that much trade takes place on the basis of contracts between companies, governments still play a large role – either as purchasers of many goods and services, or as regulators with the power to impose tariffs or regulation which might reduce the volume of trade.

When the UK joined the EU, the EU was mainly only interested in special trade deals with nearby countries (although this included the Commonwealth countries of Cyprus and Malta). Mostly the EU then preferred to trade with third countries on the basis of multilateral rules instead. However, the EU did extend its existing special trade agreement for former sub-Saharan African, Caribbean and Pacific (ACP) colonies of France and Belgium to most of the former colonies of the UK in those parts of the world. But it did not extend any special treatment to richer Commonwealth countries, like Canada and Australia, or Commonwealth states in Asia, like India or Malaysia.

But times have changed. In recent years, the EU has become more interested in negotiating bilateral trade agreements with many countries, and not relying so much on the multilateral trade system established by the World Trade Organisation (WTO). This has transformed the EU’s trade relationship with Commonwealth countries (along with many other states).

EU/Commonwealth trade today

The result of this change in policy is that the EU has agreed free trade agreements (FTAs), or is in the process of negotiating free trade agreements, with the vast majority of Commonwealth states – a full 90% of the 50 Commonwealth countries that are not in the EU. This includes the six Commonwealth states that accounted (in 2011) for 84% of Commonwealth trade – and many more besides.

More precisely, there are already FTAs in force between the EU and 18 of those 50 Commonwealth states (36% of the remaining Commonwealth). The EU has agreed FTAs with 14 of those countries (28%), subject only to completing the ratification process. It is negotiating or about to start negotiating FTAs with 13 states (26%). That leaves only 5 Commonwealth states (10% of the non-EU total) that the EU is not planning FTA talks with. (For full details of the status of EU trade relations with each of the countries concerned, with links to further information, see the annex to this blog post).

Of course, the Commonwealth includes many different types of economy, but the EU has agreed FTAs with two of the wealthiest Commonwealth states (Canada and Singapore), and has recently committed to talks with two more (Australia and New Zealand). It also has deals or is negotiating with most of the larger developing Commonwealth members (India, Nigeria, South Africa and Malaysia).

It’s sometimes suggested that the EU’s trade deals with other countries don’t benefit the UK. But the UK’s exports to Commonwealth countries have beenincreasing at over 10% a year – with increases (over two years) of 33% to India, 31% to South Africa, 30% to Australia and 18% to Canada. In fact, since 2004, Britishexports to India are up 143%. Needless to say, this increase in trade with the Commonwealth (while an EU member) must have created or maintained many British jobs.

Criticisms of the EU’s trade policy

The EU’s trade policy is often criticised on three particular grounds. While there may be some force to these arguments, the issue in the upcoming referendum is whether these problems would actually be solved by the UK leaving the EU.

First of all, it’s often argued that EU trade agreements are not fair for developing countries. In fact, the EU’s negotiation of FTAs with developing Commonwealth countries in the last decade is in part due to WTO rulings that the EU could not just sign one-way trade deals, liberalising only access to EU markets; such treaties have to liberalise trade on both sides (the EU had resisted this). The EU does offer less generous unilateral trade preferences as an alternative to two-way deals (and some Commonwealth states, like Bangladesh, prefer this).

If the UK left the EU, it could decide not to sign trade deals with some of the developing Commonwealth countries that the EU has signed deals with. It could also offer a more generous version of unilateral trade preferences. However, the UK would not be free to sign deals for one-way trade liberalisation, since it would be bound by the same WTO rules on trade agreements that the EU breached when it signed those deals. Moreover, while not replacing the EU’s trade deals would arguably help the poorest countries’ economies, UK exports to those States would logically be lower.

The second argument is that the EU’s trade deals are a problem for the environment and public services, and give industry overly generous intellectual property protection, with the result (for instance) that prices of basic medicines rise due to extended patent protection. But this argument is equally made against many trade deals that the EU is not a party to at all – such as the recent Trans-Pacific Partnership agreement.

So, while (stepping outside the Commonwealth for a moment) the planned EU/US trade agreement, known as TTIP, has attracted critics concerned about its effect upon the UK’s health care (among many other things), those issues would not magically go away if the UK, having left the EU, sought to negotiate its own trade agreement with the USA instead. The controversial parts of the draft deal are surely attractive to the US side as well as the EU side; it’s not as if the EU is in a position to issue non-negotiable demands to desperate, poverty-stricken Americans.

The third argument is that the EU is not sufficiently interested in pursuing trade deals. As the facts discussed above show, it’s quite false to suggest that the EU is not interested in trade deals with Commonwealth countries, or that the UK’s EU membership makes it impossible for British businesses to increase their exports to those countries. But could it be argued that the UK alone would do a better job of negotiating such trade deals, and negotiating them more quickly, after Brexit?

It’s true that it often takes years to negotiate EU trade agreements, and that some negotiations stall or slow down to a snail’s pace (with India, for instance). But this is not unique to the EU. Over twenty years ago, for instance, the Clinton administration developed a plan for a ‘Free Trade Area of the Americas’ – but it has never come to full fruition, and talks eventually fizzled out. There’s no guarantee that the UK alone would be able to reach agreements more quickly than the EU as a whole.

In any event, as noted above, the EU already has agreed trade deals with 64% of Commonwealth countries, and is negotiating with another 26%. Some of the latter negotiations are likely to be completed by the time that Brexit took place – since that would probably happen two years after the referendum date, so likely in 2018 or 2019 (for more discussion of the process of withdrawal from the EU, see here).

So the UK would have to ask perhaps three-quarters of its Commonwealth partners for trade deals to replace those already agreed with the EU. They might agree quickly to extend to the UK a parallel version of their existing arrangement with the EU, since that would not really change the status quo. But they might not be interested in negotiating any further trade liberalisation. If they are interested, they will ask for concessions in return, and this will take time to negotiate.

For the remaining one-quarter or so of states, the UK will have to start negotiations from scratch, in some cases having to catch up with EU negotiations that are already underway. And there is no guarantee that these other states will want to discuss FTAs, or that negotiations would be successful.

Overall then, there’s no certainty that UK exports to the Commonwealth would gain from Brexit. They might even drop, if some Commonwealth countries aren’t interested in replicating the EU’s trade agreements. Alternatively, they might increase – but it’s hard to see how any gain in British exports would be enormous, given the existence of so many FTAs between the EU and Commonwealth countries already, and the uncertainty of those states’ willingness to renegotiate those deals.

Could this very hypothetical increase in exports to the Commonwealth make up for any loss in UK exports to the EU following Brexit? Obviously, this assessment depends on how Brexit would affect UK/EU trade relations. That’s a hugely complex subject, which I will return to another day, but suffice it to say that while I think a UK/EU trade deal after Brexit is likely, it’s far from guaranteed. And it’s hugely unlikely that any such trade deal would retain 100% of the UK’s access to the EU market. There are many reasons to doubt this could happen, but first and foremost: why would the EU send the signal that a Member State could leave the EU but retain all of its trade access? If it did that, the EU would be signing its own death warrant.

The key fact to keep in mind here is that the UK’s trade with the Commonwealth isless than one-quarter of its trade with the EU. So to make up for even a 10% drop in exports to the EU, the UK would have to increase exports to the Commonwealth by more than 40%. How likely is that, when the vast majority of trade between the EU and the Commonwealth would already be covered by FTAs at that point?

Taken as a whole then, it’s clear that the UK can remain a member of the EU andtrade with the Commonwealth – and that this trade will only increase in future as more EU FTAs with Commonwealth states come into force or are negotiated. Leaving the EU, on the other hand, is liable to lead to reduction in trade with the remaining EU without any plausible likelihood that trade with the Commonwealth would increase by anything near the level necessary to compensate.

Annex

Canada: FTA agreed. It must still undergo the formal ratification process.

Australia: FTA negotiations start soon

New Zealand: FTA negotiations start soon

South Africa: FTA in force

India: FTA under negotiation

Singapore: FTA agreed. It must still undergo the formal ratification process.

Malaysia: FTA under negotiation

Pakistan, Bangladesh, Sri Lanka, Maldives: No plans for FTA

12 Caribbean Commonwealth states: FTA in force between EU and 15 countries including Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Vincent and the Grenadines, Saint Lucia, Saint Kitts and Nevis and Trinidad and Tobago

Brunei: No plans for FTA

2 Pacific Commonwealth states: FTA in force with Papua New Guinea and Fiji

7 more Pacific Commonwealth states: FTA under negotiation between EU and 12 more countries including Kiribati, Nauru, Samoa, the Solomon Islands, Tonga, Tuvalu and Vanuatu

3 West African Commonwealth states: FTA agreed with 16 West African countries including Nigeria, Ghana and Sierra Leone. It must still undergo the formal ratification process. (Note that Gambia left the Commonwealth in 2013; but it is also part of this agreement).

Cameroon: FTA in force

4 East African Commonwealth states: FTA agreed with 5 East African countries including Kenya, Tanzania, Uganda and Rwanda. It must still undergo the formal ratification process.

2 Southern and Eastern African Commonwealth states: FTA in force with 4 Southern and Eastern African countries including Mauritius and Seychelles (and also Zimbabwe, a former Commonwealth country).

2 other Southern and Eastern African Commonwealth states: FTA under negotiation with 7 more Southern and Eastern African countries including Malawi and Zambia.

5 Southern African Commonwealth states: FTA agreed with Botswana, Lesotho, Namibia, Swaziland and Mozambique. It must still undergo the formal ratification process.

Statewatch leaked document on the state of play of EU Antiterrorism policy (and its perspectives..)

On the Statewatch site is now accessible a very interesting document of the EU Counter terrorism Coordinator in preparation of the Justice and Home affairs Council meeting of December 4, 2015. Without prejudice of the political and legal judgment that anyone can have on the initiatives listed below the text gives a very comprehensive (and relatively objective ) view of the current state of play of the EU initiatives. It remains a mystery why this kind of purely descriptive documents are not directly accessible to the public, to the European and national parliaments.

EDC

DOC14438/15
NOTE From: EU Counter-Terrorism Coordinator To: Delegations
Subject: Report: State of play on implementation of the statement of the Members of the European Council of 12 February 2015 on counter-terrorism

The extraordinary Council (JHA) of 20 November 2015 highlighted the need to accelerate the implementation of all areas covered by the statement on counter-terrorism issued by the Members of the European Council on 12 February 2015 (doc 14406/15). Therefore, in preparation of the Council of 4 December 2015, this paper lists all the measures foreseen in the February 2015 Statement and assesses their implementation. Implementation of the Conclusions of the Council of 20 November 2015 will enhance implementation of the February 2015 statement.

Documents 9422/1/15 and 12318/15 drafted by the EU CTC assessed the state of implementation in June and October 2015. Document 12551/15, drafted by the Presidency and the EU CTC, was endorsed by the Council in October 2015. It suggests five priorities for action by December 2015. Discussion in the extraordinary JHA Council of 20 November (doc 14406/15) and COSI of 16 November 2016 focused on firearms, strengthening external border controls, information sharing and terrorist financing (doc 14122/15).

I. ENSURING THE SECURITY OF CITIZENS

  1. PNR

Following the adoption of the rapporteur’s report by the LIBE Committee on 15 July 2015, four trilogues and three technical meetings have taken place. Important differences of view between the Council and the EP remain, notably on the inclusion of internal flights, the scope (transnational element of serious crime) and the period during which PNR data can be stored in an unmasked manner. Agreement on many other issues is outstanding.

The rapporteur’s ability to broker a deal with the Presidency is hampered by the fact that, except for the EPP shadow rapporteur, his report was not supported by other shadow rapporteurs, but by a heterogeneous majority across party lines. The EP’s commitment in its resolution of 11 February 2015 to work towards passage of a PNR Directive by the end of 2015 has so far not been shared by the shadow rapporteurs (S&D, ALDE, Greens, GUE) who voted against the Kirkhope report.

As long as there is no EU PNR Directive, Member States who do not have national legislation do not have a legal basis to acquire data from carriers. On 20 November 2015, the Council reiterated the urgency and priority to finalise an ambitious EU PNR before the end of 2015.

  1. Information sharing

–   Europol: by November 2015, 14 EU MS had connected their counter terrorism authorities to the Secure Information Exchange Network Application (SIENA) hosted by Europol, a key enabling platform for information exchange. This means that half of the Member States are still not connected. Siena will be upgraded to “confidential” in 2016. Terrorism crime related information and intelligence exchange remains low. A dedicated area for counter-terrorism authorities was created in SIENA in October 2015, allowing for direct bilateral and multilateral communication between counter-terrorism authorities, with Europol and third parties with an operational cooperation agreement.

There has been a strong increase of the use of the Europol Information System (EIS) since December 2014. By 13 November 2015, 1595 foreign terrorist fighters have been registered in EIS by 14 EU MS, 5 third parties and Interpol. Nevertheless, considering the much higher number of existing EU foreign terrorist fighters and the fact that half of all EU MS still have not used EIS, the system is clearly a work in progress.

FP Travellers, both from a quantitative and qualitative perspective, is not yet a tool which can provide in depth analysis in relation to all contributed operational cases across the EU. To date, 50.45 % of all contributions originate from just five MS and one associated third country. 2081 confirmed foreign terrorist fighters have been entered into FP Travellers.

Europol will launch the European Counter-Terrorism Center (ECTC) in early 2016 to strengthen information exchange. This will provide inter alia a robust security and confidentiality framework. A more robust information-sharing and operational-coordination platform will be established at Europol as part of ECTC to connect the police CT authorities. In the Council Conclusions of 20 November 2015, Member States committed to seconding CT experts to the ECTC to form an enhanced cross-border investigation support unit and indicated that Eurojust should also be involved. As Europol is actively engaged in support of ongoing CT investigations in several Member States and has been tasked by the Council to set up the IRU and the ECTC, it will be important to increase Europol ‘s resources accordingly to achieve sustainability.

–   Eurojust: Operational cooperation and information sharing have increased considerably. But this still does not reflect the extent of ongoing investigations and prosecutions. Operational cooperation in terrorism cases referred to Eurojust for assistance has more than doubled (13 cases in 2014, 29 cases so far in 2015, cases related foreign terrorist fighters increased from 3 to 14). Ten coordination meetings in terrorist cases have been organized in 2015, four of which related to FTF. In November 2015, Eurojust coordinated a joint action in six countries in a case of a radical terrorist group, leading to 13 arrests. The information on prosecutions and convictions for terrorist offences shared with Eurojust has more than doubled since 2014. So far in 2015, 109 cases were opened at Eurojust in relation to information exchange on terrorist offences – 17 on court results and 92 on ongoing prosecutions.
This is a threefold increase on the figure for 2014. Eurojust also animates several relevant networks such as the network of national correspondents for terrorism matters and the consultative forum of prosecutors-General and Directors of Public Prosecutions, specialized cybercrime prosecutors etc. The association of Eurojust to Europol’s Focal Point Travellers has allowed for improved information exchange.

– Update of the Framework Decision on Combating Terrorism: The EU signed the Council of Europe Convention on the Prevention of Terrorism and its additional Protocol on Foreign Terrorist Fighters on 22 October 2015 in Riga. The Commission plans to present a proposal for the update of the Framework Decision before the end of 2015.

  1. External border controls

    2. Continue reading “Statewatch leaked document on the state of play of EU Antiterrorism policy (and its perspectives..)”

Data retention and bulk data: sometime the Council raises some good questions. But what about the answers ?

It does not happen very often but in a PUBLIC document diffused yesterday the Council Presidency raises some very interesting questions arising from the 2014 CJEU ruling on data retention (see below). It is worth recalling that already at that time the Court justified its decision with reference not only to art. 8 of the Charter (protection of personal data) but also to art. 7 (protection of privacy). The same happened this year with the Schrems case which deals with a similar situation (even if referred to a third country). Quite surprisingly the Council Presidency does not make reference to this ruling even if , according some doctrine (see the Martin Scheinin position published here)  it contain already an answer to the first question. According to Martin Scheinin the Court by referring to Article 7 of the Charter makes clear that:  In particular, legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter…

When the “essence” itself of a fundamental right is threatened, according to art.52 of the Charter is no more question of verify the “proportionality” of this kind of measures as they would be per se against the Charter (and the Treaty)

Let’s see what will be the MS (and judiciary) reaction and if they will take this occasion to re-examine some wide ranging legislative proposals which foresee a generalised collection of personal data (PNR, Entry-exit systems, not to speak of the monthly bulk transmission of EU citizens personal data to the US administration within the EU-USA TFTP (“SWIFT”) agreement…).

EDC

 

DOC  14246/15 24 November 2015 NOTE
From:Presidency
To:Permanent Representatives Committee/Council
No. prev. doc.:14369, 13085/15, 11747/1/15 REV 1
Subject: Retention of electronic communication data – General debate

1. The invalidation of the Data Retention Directive 1 by the Court of Justice of the EU 2on the grounds that it disproportionately restricted the rights to privacy and to the protection of personal data, has given rise to questions in the Member States, in particular as regards national transposition legislation and the availability of electronic communication data collected for access by law enforcement authorities and their use as evidence in criminal proceedings.

2. Member States had been given a wide margin of discretion in the implementation of the Data Retention Directive. This lead to considerable differences in the national legal frameworks3, which are compounded by the varying consequences of the assessment of the national data retention schemes by national parliaments and courts, especially in view of the Data Retention Judgement and the pending “Tele2” case 4.

3. The Data Retention Judgement has not directly affected national implementing legislations of the Data Retention Directive and these remain valid until amended, or repealed by national parliaments, or invalidated by national courts, provided that they comply with Articles 7 and 8 of the Charter of Fundamental Rights of the EU. Member States thus find themselves in a situation where they no longer have an obligation deriving from a specific Union legal instrument to introduce or maintain a national data retention regime providing for the mandatory storage of electronic communication data by providers for the purposes of detecting, investigating, and prosecuting serious crime. However, Member States retain the possibility to do so under Article 15(1) of the “E-privacy Directive” 5.

4. Opinions diverge on the interpretation of the Court’s judgement and thus on the legality of schemes for retaining bulk electronic communication data without specific reason. This has inter alia resulted in a large variety of situations at national level6. Some Member States have already adopted or are in a process of preparing new legislation on data retention, that, according to the information received by delegations, aims at ensuring strengthened procedural guarantees and safeguards in compliance with the Charter and in line with the ruling of the Court (EE, ES, IE, LT, LU, LV, MT, PL), including some Member States where the national law has been invalidated by the constitutional Court (DE, BG, NL).

5.Eurojust’s analysis of the current situation7 and expert debates held during the Luxembourg Presidency8 highlight that this fragmentation of the legal framework on data retention across the Union has an impact on the effectiveness of criminal investigations and prosecutions at national level, in particular in terms of reliability and admissibility of evidence to the courts based on the collection of electronic communication data, as well as on cross-border judicial cooperation between Member States and internationally.

6 In view of these challenges and the legal, procedural and practical problems they pose for investigations and prosecutions of all kinds of crime, not in the least in relation to counter-terrorism, the Presidency invites Ministers to address the following questions:

  • Is the Data Retention Judgement to be interpreted in the sense that retaining bulk electronic communication data without specific reason is still allowed ?
  • Considering the current fragmented situation throughout the Union, and the consequences it entails, should an EU-wide response be considered or should it be up to individual Member States to address the issue ?
  • Should the Commission be invited to present a new legislative initiative and if yes in what timeframe ?

 

NOTES

1        Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC
3        It is recalled that the transposition did not go easily in certain Member States, as a number of national constitutional courts annulled the national transposition laws for being contrary to the Constitution or the European Convention on Human Rights and certain national parliaments raised serious concerns.
2        Judgement of the Court of justice of the European Union (CJEU) (Grand Chamber) “Digital Rights Ireland and Seitlinger and others” of 8 April 2015 in joined Cases C-293/12 and C-594/12
4        The CJEU currently examines a preliminary ruling (pending Case C-203/15, lodged on 4 May 2015, Tele2 Sverige AB v. Post-och telestyrelsen ) on the compatibility of a national legislation (Swedish law in this case) to retain traffic data covering all persons, all means of electronic communication and all traffic data for the purpose of combating crime, with Article 15(1) of Directive 2002/58/EC (the e-privacy Directive), taking account of Articles 7, 8 and 15(1) of the Charter.
5        Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector
6        The current state of play is as follows: the transposition law of the Data Retention Directive has been invalidated in at least 11 Member States (AT, BE, BG, DE, LT, NL, PL, RO, SI, SK, UK). Amongst these, 9 countries have had the law invalidated by the Constitutional Court (AT, BE, BG, DE, SI, NL, PL, RO, SK). In 15 Member States (CY, CZ, DK, EE, ES, FI, FR, HR, HU, IE, LU, LV, MT, PT, SE) the domestic law on data retention remains in force, while they are still processing communication data.
7        Doc. 13085/15 and 13689/15
8        Doc. 11747/1/15 REV 1

THE NEW DIRECTIVE ON IMMIGRATION OF STUDENTS AND RESEARCHERS: A SMALL STEP OR A BIG LEAP FORWARD?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Monday, 23 November 2015)

by Steve Peers

For a number of years, the EU has aimed to attract highly-skilled non-EU migrants to its territory. However, the existing legislation on this issue – the researchers’ Directive, adopted in 2005, and the students’ Directive, adopted in 2004 – have only had a modest impact on attracting more students and researchers to the EU, according to the Commission’s reports (see here and here) on the two Directives, issued in 2011.

Consequently, the Commission proposed an overhaul of this legislation in 2013. The European Parliament (EP) and the Council recently agreed on the text of this proposal (for the text of the provisional version of the future Directive, see here; the final version will be ‘tidied up’ a little legally). As you would expect, the EP and the Council compromised between their respective positions (for those positions, see here and here), which I discussed in an earlier blog post.

I’ll examine first the background and content of the new Directive, then look at how effective it is likely to be in its objective on increasing the numbers of researchers and students coming from third States.

Background

The current students’ Directive also applies to the admission of school pupils on exchange programmes, unpaid trainees and volunteers, although Member States have an option to apply it to the latter three groups of migrants. The CJEU has ruled twice on the interpretation of this Directive. In  Sommer it ruled that Member States could not apply a labour-market preference test for students; in Ben Alaya case (discussed here), it ruled that Member States must admit students who comply with the rules on admission in the Directive. The same logically applies to the current researchers’ Directive. The UK and Denmark opted out of both Directives, while Ireland opted in to the researchers’ Directive. All three countries have opted out of the new law.

The new law

The new Directive merges the students’ and researchers’ Directives, making major changes to them both. First of all, the Commission proposed that Member States would be obliged to apply the currently optional rules relating to school pupils, unpaid trainees and volunteers, as well as rules on two new groups of migrants: au pairs and paid trainees. The EP agreed with this idea, while the Council rejected it entirely. Ultimately, the two institutions compromised: the new Directive will have binding rules on (paid and unpaid) trainees and some volunteers (those participating in the EU’s European Voluntary Service), although stricter conditions will apply to the admission of trainees (more on that below). However, the rules on other volunteers and school pupils will remain optional, along with the new rules on au pairs.

Next, the Commission proposed to limit Member States’ current power to apply more favourable rules for students and researchers, confining that power to only a few provisions relating to the rights of migrants, while fully harmonising the rules on admission. The final Directive accepts the basic principle that the power to set more favourable standards should be more limited that at present, but imposes fewer such constraints than the Commission wanted. Member States will be allowed to apply more favourable rules for the persons concerned as regards the time limits on their residence permits. Many of the conditions relating to admission and withdrawal or non-renewal of the right to stay will be optional, not mandatory (as the Commission had proposed), and the Council insisted on many additional options being added. A clause in the preamble sets out the Council’s wish to provide expressly that Member States can have rules on admission of other categories of students or researchers.

Against the Commission’s wishes, the final Directive provides that the current rules on delegating decision-making to research institutions or universities will remain. Furthermore, it adds that Member States can optionally delegate such powers as regards volunteers or trainees as well.

Trainees are defined (more restrictively than the current law) as those who have recently completed a degree (within the last two years), or who are currently undertaking one. Their time on the territory is limited to six months, although this can be longer if the traineeship is longer, and the authorisation can be renewed once. But Member States retain the power to set more favourable standards as regards these time limits.

One striking feature of the agreed Directive is a new right for students and researchers to stay after their research or study to look for work or self-employment. The EU institutions agreed on the principle of this right, but disagreed on the details. According to the Commission, the right should apply for a period of 12 months, although after 3 months Member States could check on the genuineness of this search, and after 6 months they could ask the migrant to prove that they have real prospects. The EP wanted to extend the period to 18 months, and to make Member States wait longer to check on the genuineness of the job search or likelihood of employment. On the other hand, the Council wanted several restrictions: to reduce the stay to 6 months; to allow Member States to limit students’ possibility to stay to those who have at least a Master’s degree; to check on the likelihood of employment after 3 months; and to give Member States an option to limit the job search to the areas of the migrant’s expertise. The final deal splits the difference on the period of extra stay (it will be 9 months), and accepts the various optional limits on the right which the Council wanted.

As for students’ right to work, the current Directive allows them to work for at least for 10 hours a week. The Commission proposed to let them work for 20 hours a week, and to drop the option to ban students from working during their first year of studies. The EP agreed with this, but the Council wanted to revert to the current 10-hour a week limit, and introduce a possible labour-market preference test (overturning Sommer). Again, the final deal splits the difference: 15 hours’ of work allowed per week, with no labour market preference test.

Another issue was equal treatment of those who work. Currently, the EU’s single permit Directive provides for equal treatment of most third-country nationals who are allowed to work, even if (like students) they were not admitted for employment. However, that Directive excludes au pairs from its scope, and only applies where the relationship is defined as ‘employment’ under national law; this will not always be the case for researchers. The new Directive will extend the equal treatment rules to students and researchers, even if they are not considered employees, and to au pairs whenever they are considered employees. Even non-employees will have equal treatment for goods and services (besides housing and public employment offices). But the new Directive will not waive any of the various exceptions to equal treatment that the single permit Directive currently provides for, besides a few minor exceptions for researchers.

Also, the new Directive will replace the weak rules on family reunion in the current researchers’ Directive with a fully-fledged right to family reunion. The EU’s family reunion Directive will apply to Directive will apply to researchers, and many of the restrictions in that Directive will be waived: the minimum waiting period; the need to show a reasonable prospect of permanent residence; the need to show integration requirements for family members before entry (those rules can still be applied after entry; on the CJEU’s interpretation of those rules, see here). There will also be a shorter deadline to process applications, and family members will have a longer period of authorised stay. The EP and Council compromised on the Commission’s proposal to waive the waiting period before family members could access the labour market: the Council wanted to delete this proposed rule entirely, but it agreed to it with a derogation for ‘exceptional circumstances such as particularly high levels of unemployment’. However, the EP got nowhere with its suggestion to extend these more favourable rules to the family members of students as well.

The Commission aimed to simplify the current rules on the movement (‘mobility’) of researchers and students between Member States for the purpose of their studies and research. It also proposed to extend those rules to paid trainees, while the EP wanted to extend those rules to cover unpaid trainees and volunteers as well. However, the Council prevailed on this issue, restricting the scope of these rules to researchers and students (as at present), and adding very complicated details to the proposal on this issue.

Finally, the Commission proposed to introduce a 60-day deadline to decide on applications for admission, shortened to 30 days for those benefiting from EU mobility programmes. (The current laws have no deadlines to decide on applications at all). The EP supported an even shorter period to decide on applications (30 days), while the Council wanted to raise the time limit to 90 days. Yet again, these institutions split the difference, with a 90-day general rule and a 60-day rule where institutions have been delegated the powers to decide on applicants.

Comments

The agreed Directive should be appraised in light of the Commission’s impact assessment report for the proposed Directive, which made detailed arguments for the amendments which the Commission proposed. This report provided evidence that students or researchers are attracted to a job-search period after the end of research or studies, as well as by further employment rights for students and for researchers’ family members. Certainly the new Directive addresses all of these issues to some extent.

Conversely, would-be migrants are deterred by the great variety of national rules and the rules on mobility between Member States.  On this point, the new Directive will only reduce the variety of national rules modestly, and will install mobility rules more complex than those applying at present.

Presumably, it is also a deterrent for would-be students and researchers who are already legally present to leave the country to make their applications. To address this, the EP wanted to oblige Member States to consider in-country applications for researchers, but ultimately it could not convince the Council (or the Commission) to change the existing rules, which give Member States only an option to allow this.

As for the additional scope of the Directive, it is striking that the new binding rules on admission only apply to trainees who are undertaking or who have completed higher education, and to volunteers in the EU’s own programme. The latter change in the law is necessary in order to ensure the effectiveness of that programme, but the former change in the law is another example of the EU focussing its migration policy upon highly qualified employees. (Remember that according to the preamble to the new Directive, the admission of trainees who have not entered higher education is left entirely to national discretion). It’s unfortunate that at least the rules on equal treatment aren’t binding for all volunteers, school pupils and au pairs, to ensure that these migrants are not exploited and that domestic labour standards are not undercut.

Many of the changes in the Directive intending to attract qualified migrants would make even more sense if they were part of a ‘joined up’ policy – for instance, allowing trainees to make an in-country application for studies or research, or waiving some of the conditions in the EU’s ‘Blue Card’ Directive for highly-skilled migrants (reducing the income threshold, for instance) for graduate trainees, researchers, and students looking for work under this new Directive. Fortunately, there will be a chance to address this issue in the near future, as the Commission will soon be proposing an amendment to the Blue Card Directive (on the reform of that Directive, see here).

Overall, then, the new Directive has gone some distance towards accomplishing its intended objectives, but its effect could be further augmented in the near future by a broader reform of EU law on highly-skilled immigration in general.

After Paris : Justice and Home affairs Council draft Conclusions

ORIGINAL DOCUMENT ACCESSIBLE ON STATEWATCH SITE

(NOTA BENE : Comments will follow on the text finally adopted) 

Draft Conclusions of the Council of the EU and of the Member States meeting within the Council on Counter-Terrorism

  1. The Council is appalled by the heinous terrorist attacks which took place in Paris on 13 November 2015 and expresses its deepest condolences to the victims of these attacks, their families and friends. The Council emphasises its solidarity with the people of France and pays tribute to the courage and decisive actions of the French authorities. The attacks were an assault on the European values of freedom, democracy, human rights and the rule of law. This is not the first time that the EU has been confronted with a major terrorist attack and important measures have already been taken. The Council underlines the importance of accelerating the implementation of all areas covered by the statement on counter-terrorism issued by the Members of the European Council of 12 February 2015 and in particular of the measures outlined below.

PNR

  1. The Council reiterates the urgency and priority to finalise an ambitious EU PNR before the end of 2015, which should include internal flights in its scope, provide for a sufficiently long data period during which PNR data can be retained in non-masked out form and should not be limited to crimes with a transnational nature.

Firearms

  1. The Council:
  • welcomes the adoption of the Implementing Regulation on common deactivation standards on 18 November 2015,
  • welcomes the presentation by the Commission on 18 November 2015 of a proposal to revise the current Directive on Firearms,
  • is committed to increasing operational cooperation through Europol under the EU Policy Cycle on serious and organised crime, notably within the Operational Action Plan Firearms. All Member States affected by the problem are invited to join these efforts by the end of 2015,
  • invites Frontex and Europol to assist the Member States bordering the Western Balkans region with regard to increasing controls of external borders to detect smuggling of firearms.

Strengthening controls of external borders

4. Member States undertake to:

  • implement immediately the necessary systematic and coordinated checks at external borders, including on individuals enjoying the right of free movement,
    • on the bases of a quick identification of urgent needs and possible solutions, to be performed by the Commission before the end of 2015, upgrade the Member States border control systems (electronic connection to the relevant Interpol databases at all external border crossing points, automatic screening of travel documents) by March 2016,
    • in the context of the current migratory crisis, carry out a systematic registration, including fingerprinting, of all migrants entering into the Schengen area and perform systematic security checks by using relevant databases in particular SIS II, Interpol SLTD database, VIS and national police databases, with the support of Frontex and Europol, and ensure that hotspots are equipped with the relevant technology. Europol will deploy guest officers to the hotspots in support of the screening process, in particular by reinforcing secondary security controls,
    • strengthen the control at the external borders which are most exposed, in particular by deploying rapid border intervention teams (RABITs) and police officers in order to guarantee systematic screening and security checks.
    1. The Council reiterates its Conclusions of 9 November 2015 and invites the Commission to:
    • include EU nationals in the upcoming Smart Borders proposals and in this context present a proposal for the targeted revision of Art.7(2) Schengen Borders Code regarding systematic controls against relevant databases at EU external borders,
    • provide, in its proposal to update the Frontex Regulation, a solid legal basis for the contribution of Frontex to the fight against terrorism and organised crime and access to the relevant databases.
    1. Frontex will:
    • contribute to the fight against terrorism and support the coordinated implementation of the Common Risk Indicators (CRIs) before the end of 2015,
    • assist the Member States to tighten controls of external borders to detect suspicious travels of foreign terrorist fighters and smuggling of firearms, in cooperation with Europol,
    • work closely with Europol and Eurojust, in particular in the context of the hotspots, and exchange data with Europol on the basis of the cooperation agreement to exchange personal data. The latter should be concluded and become operational without delay.

    Information sharing

    7. The Council decides to step up law enforcement cooperation on counter-terrorism (CT):

    • Member States will instruct national authorities to enter data on all suspected foreign terrorist fighters into the SIS II under Article 36.3, carry out awareness raising and training on the use of the SIS and define a common approach to the use of the SIS II data relating to foreign fighters,
    • Europol will launch the European Counter Terrorist Centre (ECTC) on 1 January 2016 as a platform by which Member States can increase information sharing and operational coordination with regard to the monitoring and investigation of foreign terrorist fighters, the trafficking of illegal firearms and terrorist financing. The ECTC will provide national CT authorities with enhanced information sharing capacities notably via Focal Point Travellers, the Europol Information System and Europol’s SIENA system reserved for counter-terrorism cases. The new Europol Regulation, on which an agreement should be reached between the co-legislators before the end of the year, should be consistent with the mandate and objectives of the ECTC, including the IRU,
    • Member States will second CT experts to the ECTC to form an enhanced cross-border investigation support unit, capable of providing quick and comprehensive support to the investigation of major terrorist incidents in the EU. Eurojust should also participate,
    • The Commission is invited to ensure that Europol is reinforced with the necessary resources to support ECTC and to submit a legislative proposal in order to enable Europol to systematically cross-check the Europol databases against the SIS II as established by Council Decision 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System (SIS II),
    • Member States will make maximum use of these capabilities to improve the overall level of information exchange between CT authorities in the EU. Member States will instruct the relevant national authorities to further increase their contributions to Focal Point Traveller at Europol to reflect the threat and connect to relevant Europol information exchange systems.

     
    Terrorist financing

    1. The Council invites the Commission to present proposals to strengthen, harmonise and improve cooperation between Financial Intelligence Units (FIU’s), notably through the proper embedment of the FIU.net network for information exchange in Europol and ensure their fast access to necessary information, in order to enhance the effectiveness and efficiency of the fight against money laundering and terrorist financing in conformity with Financial Action Task Force (FATF) recommendations, to implement more quickly the asset freezing required by the UN Security Council (Resolution 1373), to strengthen controls of non-banking payment methods such as electronic/anonymous payments and virtual currencies and transfers of gold, precious metals, by pre-paid cards and to curb more effectively the illicit trade in cultural goods.

     Criminal justice response to terrorism and violent extremism

     9. The Council welcomes the signing in Riga on 22 October 2015 by the EU of the Council of Europe’s Convention on the Prevention of terrorism and of its additional Protocol on Foreign Terrorist Fighters and invites the Commission to present a proposal for a directive updating the Framework Decision on Combating Terrorism before the end of 2015 with a view to collectively implementing into EU law UNSC Resolution 2178 (2014) and the additional Protocol to the Council of Europe’s Convention.

     10. Member States will use ECRIS at its full potential. The Council invites the Commission to submit by January 2016 a proposal for the extension of ECRIS to cover third country nationals.

     11. The Council invites the Commission to allocate as a matter of urgency the necessary financial resources to implement the Council Conclusions on enhancing the criminal justice response to radicalisation leading to terrorism and violent extremism. This should notably support the development of rehabilitation programmes as well as risk assessment tools in order to determine the most appropriate criminal justice response, taking into account the individual circumstances and security and public safety concerns.

     Funding

    1. The Council invites Member States to use the Internal Security Fund to support the implementation of these conclusions and to prioritise relevant actions under the national programmes to this effect, and calls on the Commission to prioritise the funding available under centrally managed funds to the priorities identified in these conclusions.

    Implementation

    1. In view of its role on strengthening internal security within the Union, COSI shall coordinate the role of the various Council Working Parties and of the EU agencies in the implementation of these Council Conclusions. The Counter Terrorism Coordinator will monitor their implementation.

    Fundamental Rights Agency :  Surveillance by intelligence  services: fundamental rights safeguards and remedies in the EU.  Mapping Member States’ legal frameworks

    EXECUTIVE SUMMARY : FULL REPORT AVAILABLE HERE

     Introduction

    Recent revelations of mass surveillance underscore the importance of mechanisms that help prevent fundamental rights violations in the context of intelligence activities.

    This FRA report aims to evaluate such mechanisms in place across the European Union (EU) by describing the current legal framework related to surveillance in the 28 EU Member States. The report first outlines how intelligence services are organised, describes the various forms surveillance measures can take and presents Member States’ laws on surveillance. It then details oversight mechanisms introduced across the EU, outlines the work of entities set up thereunder, and presents various remedies available to individuals seeking to challenge surveillance efforts.

    The report does not assess the implementation of the respective laws, but maps current legal frameworks. In addition, it provides an overview of relevant fundamental rights standards, focusing on the rights to privacy and data protection.

    Background

    In June 2013, media worldwide began publishing the ‘Snowden documents’, describing in detail several surveillance programmes being carried out, including by the United States’ National Security Agency (NSA) and by the United Kingdom’s Government Communications Headquarters (GCHQ). These brought to light the existence of extensive global surveillance. Details of these programmes, which set up a global system of digital data interception and collection, have been widely publicised 1 and critically assessed.2

    Neither the US nor the British authorities questioned the authenticity of the revelations,3 and in some cases confirmed them.4 However, the media’s interpretation of the programmes was sometimes contested – for example, by the UK Intelligence and Security Committee of Parliament 5 and academia.6

    Since most of the Snowden revelations have not been recognised by the British government, the Investigatory Powers Tribunal, in hearing challenges to the legality of the programmes, took the approach of hearing cases on the basis of hypothetical facts closely resembling those alleged by the media.7 For the Austrian Federal Agency for State Protection and Counter Terrorism (BVT), the Snowden revelations represented a “paradigm shift”: “Up until a few years ago, espionage was largely directed at state or business secrets, and not, for the most part, at people’s privacy, which can now be interfered with extensively by intelligence services since they possess the necessary technical resources to do so”. 8

    The Snowden revelations were not the first to hint at the existence of programmes of large-scale communication surveillance set up in the aftermath of the 11 September 2001 attacks.9

    But the magnitude of the revelations was unprecedented, potentially affecting the entire world.

    The revelations triggered an array of reactions.10 In the intelligence community, and in particular among the specialised bodies in charge of overseeing the work of intelligence services, dedicated inquiries were conducted.11 The European Union reacted strongly.

    The European Commission (EC), the Council of the European Union and the European Parliament (EP) reported on the revelations, expressing concern about mass surveillance programmes, seeking clarification from US authorities, and working on “rebuilding trust” in light of the damage created by the revelations.12

    On 12 March 2014, the EP adopted a resolution on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights, and transatlantic cooperation in Justice and Home Affairs (the Resolution).13

    The resolution drew on the in-depth inquiry that the EP tasked the Civil Liberties, Justice and Home Affairs Committee (LIBE) to conduct during the second half of 2013, shortly after the revelations on mass surveillance were published in the press.14

    The wide-reaching resolution launched a “European Digital Habeas Corpus”, aimed at protecting fundamental rights in a digital age while focusing on eight key actions. In this context, the EP called on the EU Agency for Fundamental Rights (FRA) “to undertake in-depth research on the protection of fundamental rights in the context of surveillance, and in particular on the current legal situation of EU citizens with regard to the judicial remedies available to them in relation to those practices”.15

    Scope of the analysis

    This report constitutes the first step of FRA’s response to the EP request. It provides an overview of the EU Member States’ legal frameworks regarding surveillance. FRA will further consolidate its legal findings with fieldwork research providing data on the day-to-day implementation of the legal frameworks. A socio-legal report based on an empirical study, to be published at a later stage, will expand on the findings presented ere.

    While the EP requested the FRA to study the impact of ‘surveillance’ on fundamental rights, given the context in which the resolution was drafted, it is clear that ‘mass surveillance’ is the main focus of the Parliament’s current work. During the data collection phase, FRA used the Parliament’s definition to delineate the scope of FRA net’s research.

    The EP resolution refers to “far-reaching, complex and highly techno-logically advanced systems designed by US and some Member States’ intelligence services to collect, store and analyse communication data, including content data, location data and metadata of all citizens around the world, on an unprecedented scale and in an indiscriminate and non-suspicion-based manner” (Paragaph 1).

    This definition encompasses two essential aspects: first, a reference to a collection technique, and second, the distinction between targeted and untargeted collection.

    The report does not analyse the surveillance techniques themselves, but rather the legal frameworks that enable these techniques. For Member States that carry out signals intelligence, the focus of the analysis is on this capacity, and not on other intrusive capabilities the services may have (such as wiretapping).

    This report covers the work of intelligence services. It does not address the obligations of commercial entities which, willingly or not, provide intelligence services with the raw data that constitute Signals Intelligence (SIGINT), and are otherwise involved in the implementation of the surveillance programmes.16 The private sector’s role in surveillance requires a separate study.

    While the premise of this report is the existence of an interference, since the “secret monitoring of communications” interferes with privacy rights from a fundamental rights point of view,17 the report focuses on analysing the legal safeguards in place in the EU Member States’ legal frameworks, and therefore on their approaches to upholding fundamental rights.

    “Assuming therefore that there remains a legal right to respect for the privacy of digital communications (and this cannot be disputed (see General Assembly Resolution 68/167)), the adoption of mass surveillance technology undoubtedly impinges on the very essence of that right.” UN, Human Rights Council, Emmerson, B. (2014), para. 18

    The report’s analysis of EU Member States’ legal frameworks tries to keep law enforcement and intelligence services separate. By doing so, the report excludes the work of law enforcement from its scope, while recognising that making this division is not always easy.

    As stated by Chesterman, “Governments remain conflicted as to the appropriate manner of dealing with alleged terrorists, the imperative to detect and prevent terrorism will lead to ever greater cooperation between different parts of government”.18 The EP resolution recognises this and called on the Europol Joint Supervisory Body (JSB) to inspect whether information and personal data shared with Europol have been lawfully acquired by national authorities, particularly if the data were initially acquired by intelligence services in the EU or a third country.19

    The Snowden revelations have also shed light on cooperation between intelligence services. This issue, important for the oversight of intelligence services’ activities, has been addressed by the EP resolution (Paragraph 22), by oversight bodies,20 by the Venice Commission,21 and by academia.22

    This aspect, however, proved impossible to analyse in a comparative study, since, in the great majority of cases, cooperation agreements or modalities for transferring data are neither regulated by law nor public. This in itself creates a fundamental rights issue linked to the rule of law and, more particularly, regarding the importance of the existence of a law that is accessible to the public, as well as regarding the rules governing the transfer of personal data to third countries.

    Though this report could not deal with this aspect beyond referencing the lack of proper control by over-sight bodies, it does raise important questions under relevant legal standards.

    Fundamental rights and safeguards Continue reading “Fundamental Rights Agency :  Surveillance by intelligence  services: fundamental rights safeguards and remedies in the EU.  Mapping Member States’ legal frameworks”