STATEWATCH : the migrant crisis in the Mediterranean

Published on Statewatch

Key Analysis and Documents

1.   Statewatch Special Report: “War” to be declared on migrants: “Structured border zones”
2.   EU: Letter from Commissioner Avramopolous to Ministers with Annex
3.   EU: MED-CRISIS: Official statement on the launch of EUNAVFOR
4.   Statewatch Briefing: Coercive measures or expulsion: Fingerprinting migrants
5.   Statewatch Analysis: The EU’s Planned War on Smugglers
6.   Council: Secret plan for a war on smugglers – document (PSC)
7.   Council Press Release: 18 May 2015
8.   European Commission: A European Agenda on Migration
9.   Mission in the Med: financial support under the ATHENA Decision
10. European External Action Service: Libya, a Political Framework for a Crisis Approach (EUBAM)
11. Ongoing EU external operations (European External Action service)

NEWS

1.   EU: German-Italian-French non-paper on EU migration policy
2.   EU: European External Action Service (EEAS): European Union Naval Force
3.   EU: European External Action Service (EEAS): EU prepares to go to “war” in the Med
4.   EU: No agreement on sharing “relocation” of migrants
5.   EU: Council of the European Union: LIMITE documents: Migration – Policy debate
6 . Liquid Traces – The Left-to-Die Boat Case (Vimeo, link)
7.   EU: Recommendation of XXX on a European resettlement scheme
8.   EU: The new EU Migration Agenda takes shape: analysis of the first new measures
9.   EU:   MED CRISIS: Press coverage
10. EU: ACP: Destroying boats is not a solution to migration
11. EU: European Parliament: Migration: MEPs debate EU response.”

Key Analysis and Documents

1. Statewatch Special Report: “War” to be declared on migrants who – fleeing from war, persecution and poverty – have arrived in the EU are to be contained and detained in “Structured border zones” to be set up to “ ensure the swift identification, registration and fingerprinting of migrants (“hotspots”)”

This is set out in the Draft Conclusions of the European Council [the EU Heads of State] meeting on 25 and 26 June 2015: Draft conclusions (pdf)

Section 5.c says: “the setting up of structured border zones and facilities in the frontline Member States, with the active support of Member States’ experts and of EASO, Frontex and Europol to ensure the swift identification, registration and fingerprinting of migrants (“hotspots”);” [emphasis added]
Will the “swift fingerprinting” of those described here as “illegal” migrants involve coercive measures? See: Statewatch Briefing on a “Working Document” issued for discussion by the Commission: Coercive measures or expulsion: Fingerprinting migrants (pdf):

“If the data-subject still refuses to cooperate it is suggested that officials trained in the “proportionate use of coercion” may apply the minimum level of coercion required, while ensuring respect of the dignity and physical integrity of the data-subject..”

Statewatch Director, Tony Bunyan comments: “Where is the EU going? Migrants, including pregnant women and minors, who have fled from war, persecution and poverty are to be forcibly finger-printed or held in detention until they acquiesce or are expelled and banned from re-entry.”

Steve Peers, Professor of Law, University of Essex comments on the Draft Conclusions: “It is remarkable that Member States (if this draft is accepted) are indeed willing to accept the relocation of 40,000 asylum-seekers from Italy and Greece, and 20,000 resettled refugees.
It is also notable that all Member States will participate in the latter decision – with even the UK agreeing recently to resettle a few hundred more Syrians. This is a very modest amount of the numbers needing protection however.
The European Asylum Support Office does not seem to have the powers to participate in fingerprinting asylum-seekers, and the reference to ‘bringing together’ rules on fast-tracking asylum applications is very vague. Is the intention to lower standards, and if so, how exactly? Any moves to negotiate more readmission agreements and to expel more people who supposedly have no need for protection will have to comply fully with EU, ECHR and all national and international human rights standards.
Equally if Frontex is to gain more powers over expulsion it must be made more fully accountable, including as regards individual complaints against it.”

See: UN says one million refugees should be no problem for EU (euractiv, link): “The UN rights chief yesterday (15 June) called for the European Union to take bolder steps to address its swelling migrant crisis, insisting the bloc could easily take in one million refugees”

2. EU: Jailing migrant families together with convicted criminals: A desperate EU policy to deter irregular migration by Steve Peers, Professor of Law, University of Essex:
“Taken together, the loss of these protections will mean that irregular migrants, including irregular migrant families, will not only be detained in ordinary prisons, but mixed in with the ordinary prison population of convicted criminals and those awaiting trial for serious crimes. Moreover, their capacity to challenge their detention by means of judiicial review will be severely curtailed.
Coupled with the recent Commission paper offering guidelines for using force, including against pregnant women, on migrants who refuse to be fingerprinted, this represents a significant turn in EU policy – turning toward direct and indirect threats of physical violence to control their behaviour and induce them to leave.
To say the least, this is hard to square with the EU’s frequent professions of support for the human rights and decent treatment of migrants.”
See: Letter from Commissioner Avramopolous to Ministers with Annex (Statewatch version, 75KB) orlink to Council’s 10.5 MB version (pdf)

3. EU: MED-CRISIS: Official statement on the launch of EUNAVFOR: Council launches EU naval operation to disrupt human smugglers and traffickers in the Mediterranean (Council of the European Union, pdf):
“The first phase focuses on surveillance and assessment of human smuggling and trafficking networks in the Southern Central Mediterranean…. The Council will assess when to move beyond this first step, taking into account a UN mandate and the consent of the coastal states concerned..” [emphasis added]
It is by no means certain that a UN mandate will be forthcoming as this requires the consent of the affected states, in this case Libya. The EU’s own mission in Libya, EUBAM, withdrew from from the country last autumn, has been slimmed down and is now based in Tunisia because of the highly unstable security situation in Libya where two separate governments are vying for power in addition to a number of warring groups:.See:

EU and political situation in Libya: Interim Strategic Review of EUBAM Libya (LIMITE doc no: 7886-15, 13 April 2015, pdf): “a number of additional considerations have arisen as a result of the mission’s relocation to Tunis. The mission’s legal status in Tunis is still unclear, with the Tunisian authorities unofficially indicating that they would prefer not to explore the issue….its presence in Tunis will make it difficult for mission staff to assess conditions and operate in Libya“ [emphasis added]

4. Statewatch Briefing: Coercive measures or expulsion: Fingerprinting migrants (pdf):
New guidelines released by the European Commission allow Member States to use physical and mental coercive measures to take fingerprints of migrants and asylum seekers entering Europe, including minors and pregnant women. If they refuse, they face detention, expulsion and a potential five year EU-wide ban.
“If the data-subject still refuses to cooperate it is suggested that officials trained in the proportionate use of coercion may apply the minimum level of coercion required, while ensuring respect of the dignity and physical integrity of the data-subject..” [emphasis added]

5. Statewatch Analysis: The EUs Planned War on Smugglers (pdf) by Steve Peers, Professor of Law, University of Essex:
“it is clear from the documents discussed in the EUs Political and Security Committee last week that (unless plans have changed radically in the meantime) the High Representative is being economical with the truth. The EU action clearly contemplates action by ground forces. Moreover, it anticipates the possible loss of life not only of smugglers but also of Member States forces and refugees. In effect, the EU is planning to declare war on migrant smugglers without thinking through the consequences.”

6. Secret EU plan for a war on smugglers – document (PSC, pdf)

7. Press Release: Council establishes EU naval operation to disrupt human smugglers in the Mediterranean (pdf) and Comparison between Draft and Final Statements (pdf)

8. European Commission: A European Agenda on Migration (COM 240-15, pdf)

9. Mission in the Med could call for financial support under the: ATHENA Council Decision (pdf)

10. European External Action Service: Libya, a Political Framework for a Crisis Approach (LIMITE doc no: 13829-14, pdf)

11. Ongoing EU external operations (European External Action service, pdf)

NEWS

1. EU: German-Italian-French non-paper on EU migration policy (pdf) and Letter (pdf). Includes:
– Dialogue with source/transit countries: At upcoming EU-Africa summit in Malta “we should also discuss the relationship between migration and mobility and their impact on development, the promotion of fair trade and the strengthening of security cooperation as well as return and readmission issues”
– Proposal for EU CSDP civilian mission in Niger: EUCAP Sahel Niger to become permanent and “work even more closely with Nigerien authorities in the fight against smuggling and trafficking in human beings”
– Adequate funding for continued “engagement” with countries in the Horn of Africa, to deal with migration from/through those countries (in the recent ISF-Police work programme some money was put aside for this, see: Annual Work Programme for 2015 for support to Union Actions under the Internal Security Fund – Police cooperation and crime prevention (pdf)
– “We must increase the effectiveness of return and readmission programmes”
And: “Our migration policy goals should relate to other relevant horizontal foreign policies such as counter-terrorism, maritime security, water and climate policy and a reviewed European Neighbourhood Policy which also considers the neighbours of our neighbours.”

2. EU: MED-CRISIS: European External Action Service (EEAS): European Union Naval Force – Mediterranean (Press statement, pdf): Contributing States: Currently 14 Member States (BE, DE, EL, ES, FI, FR, HU, IT, LT, LU, NL, SE, SI, UK):
“The Council shall assess whether the conditions for transition beyond the first phase have been met, taking into account any applicable UN Security Council Resolution and consent by the Coastal States concerned.”
Consent is needed for the EU to act within the territorial waters of another state (eg: Libya) and see: Comments below on this position.

See also: EU foreign ministers to agree on Mediterranean intelligence operations (euractiv, link): “EU foreign affairs ministers will today (22 June) agree on an intelligence gathering operation, the first phase of the bloc’s response to the burgeoning migration crisis in the Mediterranean, but military action against people smugglers will depend on the support of Libya’s National Unity Government and the United Nations.” and Naval bid to tackle migrants in Med (Yahoo News, link): “With GCHQ – Britain’s listening post in Cheltenham – said to be tracking the activities of smuggling gangs moving people to the Libyan coast, Defence Secretary Michael Fallon indicated that he wanted to see more intelligence-sharing.” also:Exclusive: France backs Italy-UK Plan for Sicily Intel Cell (Migrant Report, link)

See: EU agrees to launch military operation against people smugglers (FT, link): “EU officials have warned that casualties were possible after deciding to launch military action against people smugglers in the Mediterranean. Ministers of the 28-country bloc meeting in Luxembourg on Monday gave the go-ahead for a c controversial intelligence gathering operation, which will precede full-blown military action this year … “The use of firepower will be done in such a way that we do all we can to prevent any casualties to anyone,” said one EU official. “There is a difference between smugglers and migrants. If they are migrants, we will be even more cautious.” Asked whether the military operation created the risk of collateral casualties, the official replied: “Of course it would.”” and: EU navies take up position in Mediterranean(euobserver, link)
3. EU: European External Action Service (EEAS): EU prepares to go to “war” in the Med: Proposal of the High Representative of the Union for Foreign Affairs and Security Policy to the Council for a Council Decision launching the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) (pdf);
“The Operation Plan and the Rules of Engagement concerning the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) are approved…. EUNAVFOR MED shall be launched on xxx 2015.”
See: EU naval mission for Med gets green light (Politico, link)
See also: Draft Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) (LIMITE doc no: 8921-15, pdf) and Proposal for for a Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR Med) (LIMITE doc no: 8731-15, pdf): This contains details on:
Mission: “The Union shall conduct a military crisis management operation contributing to the disruption of the business model of human smuggling networks… systematic efforts to dispose of vessels and assets before they are used by smugglers”
Mandate: includes: “boarding search, seize and diversion of smuggling ships”
“The Operation Headquarters of EUNAVFOR MED shall be located in Rome, Italy”
“PSC shall exercise the political control and strategic direction of EUNAVFOR MED” [Political Security Committee]
“The EUMC shall monitor the proper execution of EUNAVFOR MED conducted under the responsibility of the EU Operation Commander” [EU Military Committee]
“The Council hereby authorises the PSC to invite third States to offer contributions”

4. EU: No agreement on sharing “relocation” of migrants: Council of the European Union: Justice and Home Affairs Council, 15-16 June 2015, Luxembourg: Final press release (pdf):
“As regards the concrete proposal on relocation, Ministers stressed that on the basis of the principle of solidarity they are all ready to make an effort to help member states under a particular migratory pressure. Several delegations stressed the necessity to strike the right balance between solidarity and responsibility.. Ministers invited the Council’s preparatory bodies to continue these discussions with the aim of achieving full implementation as soon as possible.”
See also; Civil Liberties Committee Chair, Claude Moraes, regrets EU minister’s failure to reach agreement on the migration package (EP Press release, pdf)

5. EU: Council of the European Union: LIMITE documents: Migration – Policy debate & European Council draft Conclusions
– European Agenda on Migration – Policy debate (LIMITE doc no: 9825-15, 11 June 2015, pdf) Many areas of disagreement between Member States on how to respond to the crisis in the Mediterranean:
“”Immediate Action” but also builds on four pillars as a basis for a comprehensive European migration policy: – Reducing incentives for irregular migration; – Border management; – Strong common asylum policy; – New policy on legal migration….
There is wide consensus with regard to the need to further cooperate with third countries since both the root causes of and solutions to migration related issues can be sought there. In order to ensure a genuinely comprehensive approach, some Member States have suggested to strengthen the links with the Internal Security Strategy and measures proposed therein….
Member States’ views differ on the proposed concept of relocation in order to respond to high volumes of arrivals that includes temporary scheme for persons in need of international national protection.. The total number of persons to be relocated, the available funding, and the capacity of the Member States’ structures to deal with relocation were equally questioned…” [emphasis added]
and: Update: COR -1 (LIMITE doc no: 9825-15, 12 June 2015, pdf)

– European Council (25 and 26 June 2015) – Draft guidelines for the conclusions (LIMITE doc no: 8392-15, 10 June 2015, pdf): Covers Mediterranean crisis response, security challenges, economic issues, the Digital Agenda and the UK:
Position on “1. “Relocation / resettlement p.m.” is blank as is Position: “IV. UK p.m” and “Return policy:Mobilise all tools to promote readmission of unauthorised economic migrants to countries of origin and transit….” [emphasis added]
read the restraint manual.

6. Liquid Traces – The Left-to-Die Boat Case Vimeo, link): “Liquid Traces offers a synthetic reconstruction of the events concerning what is known as the “left-to-die boat” case, in which 72 passengers who left the Libyan coast heading in the direction of the island of Lampedusa on board a small rubber boat were left to drift for 14 days in NATO’s maritime surveillance area, despite several distress signals relaying their location, as well as repeated interactions, including at least one military helicopter visit and an encounter with a military ship. As a result, only 9 people survived.” See also: Left ot die – report (link)

7. EU: MED-CRISIS: Germany and France urge Commission to revise immigration plan (euractiv, link): “Germany and France on Monday (1 June) urged the EU to find a fairer way to admit and distribute asylum seekers, as their leaders met the European Commission chief in Berlin….. France and Germany said in the joint statement that they currently were among five member states, along with Sweden, Italy and Hungary, that “are in charge of 75% of the asylum seekers”. “This situation is not fair and no longer sustainable,” they said.”
See European Commission: Recommendation of XXX on a European resettlement scheme (COM 286-15, pdf) and Annexes (pdf)

8. EU: MED-CRISIS: European Commission: Recommendation of XXX on a European resettlement scheme (COM 286-15, pdf): It was going to be 5,000 people, then 40,000 now:
“The Commission recommends that Member State resettle 20 000 people in need of international protection”
and Annexes (pdf)

8. The new EU Migration Agenda takes shape: analysis of the first new measures (EU Law Analysis, link)

9. EU: MED CRISIS: Press coverage:
EU’s refugee plans need a reality check: The EU this week outlined plans to resettle and relocate refugees, but one expert taking a closer look at the proposals argues they put the rights of migrants and asylum seekers at risk. (The Local, link) Good critique of EU plans

EU border chief wants protection from armed smugglers: The EU’s border agency Frontex wants military protection from armed migrant smugglers as it expands operations in the Mediterranean and closer to the Libyan coast (euobserver, link)

British tourists complain that impoverished boat migrants are making holidays ‘awkward’ in Kos(Independent, link)

Mediterranean migrant crisis: Hundreds rescued off Sicily (BBC News, link) and Migration: Are more people on the move than ever before? (BBC, link) with map

Italy Hands Smuggler Unprecedented Life Sentence as Europe Prepares for Migrant Deluge (BB, link)

Tunisian – and Top E.U. Generals – Fear Mission Creep Madness in Libya (The Daily Beast, link): “A newly revealed classified document and a history of grave misjudgments warn against the dangers of the new EU plan to stop migrants…. Europe’s defense chiefs are warning their political superiors that the planned military mission to stop migrant-smuggling boats crossing the Mediterranean can lead to land operations in Libya and possible clashes with the Islamic State’s affiliate in that failing North African state, a turn of events bound to threaten neighboring Tunisia’s fragile equilibrium still further.”

Tunisian PM Speaks Against EU Military Action to Stop Refugee Smugglers (Sputnik News, link):
“Tunisia opposes any military effort by the EU to tackle refugee smuggling across the Mediterranean Sea, Prime Minister Habib Essid said Thursday. “Tunisia’s position was always clear… We are originally against all military action, both to regulate political conflict and to regulate the problem with illegal smugglers,” Essid said in the European Parliament.”

Migrants en Méditerranée : la Tunisie contre toute intervention militaire [Migrants in the Mediterranean: Tunisia against all military intervention] (rtbf.be, link):
“Habib Essid said that his country is “against any military intervention to solve this problem. This problem must be resolved upstream and downstream. These people take risks, sell everything they have around them to come to Europe, for more freedom, for better economic opportunities for work. I know the problems this poses for all countries of the European Union, but the solution is to look other than make occasional military interventions.”
The European Parliament press release does not mention these comments: Tunisia’s Prime Minister Habib Essid on security and migration challenges (pdf)

Before the Boat: Understanding the Migrant Journey (MPI, link): “Deep, sophisticated insight into the decision-making process of those who undertake these journeys is necessary; without this information and a wider understanding of the political economy of migrant smuggling, policymakers essentially are making decisions in the dark.”

10. EU: MED-CRISIS: ACP: Destroying boats is not a solution to migration (euractiv, link): “The Secretary-General of the ACP (African, Caribbean and Pacific) group of states said yesterday (21 May) that his organisation was against the EU’s idea of destroying the boats of human traffickers, who make fortunes by luring prospective immigrants into risky journeys across the Mediterranean.”

And see: Twisting the ‘lessons of history’ to authorise unjustifiable violence: the Mediterranean crisis (Open Democracy, link): “More than 300 slavery and migration scholars respond to those advocating for military force against migrants attempting to cross the Mediterranean. This is no slave trade. Where is the moral justification for actions that cost lives?”

Also: “The War on migrants and refugees: has the ‘never again’ imperative been forgotten?” (Franck Duvell, link): “This imperative derived from the lessons learned from the Holocaust and the failure to rescue the European Jews has now been relinquished it seems. Are we now back at the moral state of the 1930s were unwanted populations are removed from the ‘realm of moral subjects’ (Bauman 1996) and killed or left to die and the needy are turned away and refused shelter?”

11. EU: European Parliament: Migration: MEPs debate EU response (pdf): “MEPs discussed on 20 May European Commission plans to tackle the large numbers of migrants seeking to reach the European Union, often risking their lives at sea. Commission vice president Frans Timmermans and migration commissioner Dimitris Avramopoulos announced a number of measures, including an emergency mechanism for relocating migrants, a resettlement scheme to take in migrants from countries outside the EU and more funds for securing borders.”

See also: MEPs angry at member states over immigration (euractiv, link): “EU lawmakers on Wednesday accused some member states of passing the buck by rejecting a Brussels plan for binding quotas for refugees making the dangerous Mediterranean crossing.”

Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020

ORIGINAL PUBLISHED HERE ON 23 JUIN 2015

par Pierre Berthelet, CDRE

Le Professeur Panayotis Soldatos comparait il y a peu l’Union européenne à Prométhée enchaîné par les Etats membres. Ces réflexions mettant en évidence une construction européenne dépendante des États, « dont les élites politiques, écrit-il, se refusent à admettre la réalité de l’obsolescence de la souveraineté nationale », s’illustrent parfaitement avec l’adoption par le Conseil de la stratégie européenne de sécurité intérieure pour la période 2015-2020.

À première vue, la sécurité intérieure vient de franchir un pas supplémentaire dans l’intégration avec l’approbation par le Conseil le 16 juin 2015, de conclusions renouvelant et modernisant pour cinq années à venir la stratégie 2010-2014. Pour autant, il semble bien que les chaînes soient pesantes, car les États conservent la main, et de main ferme pourrait-on dire, le processus d’intégration dans ce domaine.

Ces conclusions entraînent une série de réflexions critiques quant aux conséquences institutionnelles et quant à la manière dont les États décident d’œuvrer dans la construction européenne en matière de sécurité intérieure.

Elles suscitent d’emblée des interrogations concernant l’inclusion du Parlement européen dans le processus décisionnel lié au déroulement du cycle, ainsi que sur la préservation accrue des droits fondamentaux (1). La stratégie ne fait pas véritablement l’impasse sur ces deux questions, car elle les mentionne en soulignant l’importance de ces problématiques. Cependant, l’observateur ne peut que demeurer sur sa faim quant aux modes d’inclusion du Parlement européen, et à la manière dont les droits fondamentaux ont vocation à être davantage pris en compte, alors que le Conseil semble précisément se focaliser davantage sur la sécurité que sur la liberté. Cette stratégie pour la période 2015-2020, justifiée par la permanence des menaces, voire leur accroissement, en premier lieu, le terrorisme et la grande criminalité organisée (p. 2 des conclusions du Conseil du 16 juin), est qualifiée par le Conseil de « globale et réaliste » (p. 5). Son adoption mérite d’être saluée à ce titre, car elle confère une certaine cohérence à une action qui dépasse les frontières de l’espace de liberté, de sécurité et de justice, pour comprendre des thématiques telles que la gestion de crise, la protection des infrastructures critiques et la cybersécurité. Pour autant, en l’examinant de plus près, cette stratégie pour la période 2015-2020 n’apparaît pas exempte de toutes critiques. Il est vrai qu’elle est bien plus précise concernant les priorités fixées par la stratégie précédente qui avait, par exemple, érigé la « lutte contre la violence en elle-même » en un objectif de sécurité de l’Union.

En revanche, elle l’est moins que le plan d’action venant compléter cette stratégie de 2010 et ce, en raison de l’ambiguïté des objectifs fixés par la stratégie européenne pour la période 2015-2020 (2). Il est même possible de considérer que la stratégie de 2015 est de moins bonne facture que la précédente, car il s’agit à la fois d’un document opérationnel, mais qui n’en est pas réellement un, et d’un document stratégique, mais qui n’en est pas réellement un non plus. De prime abord, elle se positionne à mi-chemin entre d’une part, des conclusions des 4 et 5 décembre 2014 qui énoncent les grands principes, et d’autre part, un plan d’action destiné à lister des mesures concrètes. Néanmoins, sa portée se révèle être bien plus opérationnelle que stratégique, car le plan d’action à venir, visant à mettre en œuvre cette stratégie censée, comme son nom le laisse supposer, être un document de nature stratégique, est réduit à la portion congrue (3).

Si le positionnement de la stratégie est complexe sur le plan normatif, il l’est beaucoup moins sur le plan conceptuel dans la mesure où la stratégie de 2015 demeure, comme celle de 2010, très empreinte d’une idéologie de la sécurité globale (4). Elle révèle certes, le peu d’audace de la part du Conseil concernant les avancées en matière de sécurité, reflétant le double discours habituel des États, très volontaires dans les déclarations d’intention, mais beaucoup moins dans la concrétisation de celles-ci. En revanche, elle suscite des interrogations quant aux relations qu’entretiennent la sécurité intérieure et l’espace pénal européen et ce, en raison de la place faite à la doctrine relative à la sécurité globale (5). L’un et l’autre se construisent de manière séparée et même dans l’ignorance mutuelle. La stratégie révèleà ce propos un monde de la sécurité (police, douane, garde-frontières) dont l’horizon d’action est davantage marqué par une collaboration avec celui de la sécurité et de la défense, qu’avec celui de la justice.

1. Une impasse sur le Parlement européen et sur les droits fondamentaux ?

Continue reading “Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020”

THE LAW OF GREXIT: WHAT DOES EU LAW SAY ABOUT LEAVING ECONOMIC AND MONETARY UNION?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS on Sunday, 28 June 2015

by Steve Peers

A Greek referendum on whether to accept its creditors’ offer is currently scheduled for next week. It’s not clear at this point whether the Greek voters’ refusal to accept the offer would necessarily lead to Greece leaving the EU or EMU, or at least defaulting on its debts. In fact, it is not clear what would happen if Greek voters decided to accept the offer, since it was still under the process of negotiation when the referendum was announced, and may no longer be on the table at the time of the referendum.

However, since a wide range of outcomes are possible, it’s useful at this stage to look at the legal framework for departure from economic and monetary union (EMU) – and in particular whether Greece would have to leave the EU if it left the single currency. (See also my previous blog posts, before and after the last Greek election, and Ioannis Glinavos’ recent analysis of whether Greece could be forced out of the euro).

The starting point is that the EU Treaties contain detailed rules on signing up to the euro, which apply to every Member State except Denmark and the UK. Those countries have special protocols giving them an opt-out from the obligation to join EMU that applies to all other Member States. (I’ll say that again, more clearly, for the benefit of those who claim otherwise: there is absolutely no way that the UK can be required to sign up to the single currency. That would not change in any way if British voters decided that the UK should stay in the EU).

But there are no explicit rules whatsoever on a Member State leaving the euro, either of its own volition or unwillingly, at the behest of other Member States and/or the European Central Bank (ECB). There’s an obvious reason for this: the drafters of the Maastricht Treaty wanted to ensure that monetary union went ahead, and express rules on leaving EMU would have destabilised it from the outset. Put simply, legally speaking, Greece can’t directly jump or be pushed from the single currency. Continue reading “THE LAW OF GREXIT: WHAT DOES EU LAW SAY ABOUT LEAVING ECONOMIC AND MONETARY UNION?”

Jailing migrant families together with convicted criminals: A desperate EU policy to deter irregular migration

ORIGINAL PUBLISHED ON STATEWATCH

by Steve Peers, Professor of Law, University of Essex: (23.6.15)

This week’s European Council (Summit) meeting is due to discuss the issues of immigration, in light of the recent high loss of life of Mediterranean migrants. The draft Summit Conclusions call for most Member States to participate in “relocating 40,000 people in clear need of temporary protection” from Greece and Italy, as proposed by the Commission. If agreed, this would be a significant change in traditional EU policy – although the details of relocation have yet to be worked out, and the Commission proposal did not use the phrase ‘temporary protection’. All Member States would also agree to sign up to resettle 20,000 refugees directly from regions of origin over two years. Even the UK has volunteered to participate it in this, recently offering to take a few hundred more people from Syria.

Yet in conjunction with this policy the EU intends to harden its policy towards irregular migrants, ie those non-EU citizens who have not applied for asylum or whose applications have failed. The draft summit conclusions endorse a strategy of encouraging more non-EU countries in Africa to take their citizens back, by offering them further incentives to do so. But furthermore, the EU intends to put greater pressure on the migrants themselves to leave. The Summit Conclusions refer to a letter to Interior Ministers from the EU Home Affairs Commissioner Avramopolous, who suggests a number of actions to this end.

The letter calls for a widespread use of detention of irregular migrants, for up to 18 months. In particular it calls for use of an obscure clause allowing for exceptions to the normal EU standards for detention of irregular migrants. This means that three usual protections will no longer apply:

– detention of irregular migrants in separate facilities from ordinary prisoners, or at least (if they are detained in prisons) separately from the prisoners within them;
– detention of families separately; and
– frequent judicial review of immigration detention.

Steve Peers comments:

“Taken together, the loss of these protections will mean that irregular migrants, including irregular migrant families, will not only be detained in ordinary prisons, but mixed in with the ordinary prison population of convicted criminals and those awaiting trial for serious crimes. Moreover, their capacity to challenge their detention by means of judiicial review will be severely curtailed.

Coupled with the recent Commission paper offering guidelines for using force, including against pregnant women, on migrants who refuse to be fingerprinted, this represents a significant turn in EU policy – turning toward direct and indirect threats of physical violence to control their behaviour and induce them to leave.

To say the least, this is hard to square with the EU’s frequent professions of support for the human rights and decent treatment of migrants.”

Sources

1. Draft European Council conclusions

2. Letter from Commissioner Avramopolous to Ministers with Annex (Statewatch version , 75KB) orlink to Council’s 10.5 MB version

3. Coercive measures or expulsion: Fingerprinting migrants (pdf)

ZUCHTVIEH-EXPORT GMBH V STADT KEMPTEN: THE EXTRATERRITORIAL REACH OF EU ANIMAL WELFARE RULES

ORIGINAL PUBLISHED ON EU LAW BLOG

June 18, 2015

by J.LAURENCE

In an interesting judgment, the CJEU has ruled that Regulation 1/2005 on the protection of animals during transport applies outside of EU borders to transport taking place in third states, if that transport began on EU territory. This is a novel ruling that is expected to have important positive impacts on animal welfare. However, it can also be seen as an example of the CJEU’s tendency in recent years to read the EU’s jurisdiction expansively, stretching traditional international law notions of ‘territorial jurisdiction’ to permit the regulation of conduct taking place in third states.

Facts and Judgment

The case at hand concerns the refusal of Stadt Kempten, a municipality in Bavaria (Germany), to issue an export permit to animal transport company Zuchtvieh-Export. In 2012, Zuchtvieh-Export planned to transport 62 cattle from Kempten to Andijan (Uzbekistan), a journey of some 7000 km. The trip would take approximately 9 days, during which time only two 24-hour long rest stops were planned. During these rest stops, the cattle would be fed and watered, but not unloaded. Stadt Kempten refused customs clearance for the cattle because this schedule was not in accordance with the provisions of Regulation 1/2005, which sets EU standards for animal welfare during transport.

Zuchtvieh-Export objected to this decision, and filed a claim at the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court, Bavaria). During its proceedings, that court asked the CJEU for a preliminary ruling on the question whether, with respect to animal transport involving a long journey that begins in the EU but ends far outside of its borders, Regulation 1/2005 applies only to the portion of the transport taking place within the EU, or also to those parts of the transport taking place outside of EU territory.

The CJEU came down firmly on the side of extraterritorial application, stating unambiguously that Regulation 1/2005 “does not subject the transport of animals with a point of departure within the territory of the European Union and a destination in a third country to any particular approval scheme, different from that applicable to transport taking place within the European Union” (para. 47). The only nod the Court makes to the limits of EU authority is the following:

“Should it nevertheless be the case that the law or administrative practice of a third country through which the transport will transit verifiably and definitely precludes full compliance with the technical rules of [Regulation 1/2005], the margin of discretion conferred on the competent authority of the place of departure empowers it to accept realistic planning for transport which, in the light inter alia of the means of transport used and the journey arrangements made, indicates that the planned transport will safeguard the welfare of the animals at a level equivalent to those technical rules.” (para. 54)

In finding that Regulation 1/2005 also applies to those parts of animal transport taking place outside of the EU, the Court went against the opinion of Advocate General Bot. The AG was indeed of the opinion that the scope of the Regulation was limited to the EU, and that applying it to transport outside of EU borders would essentially deputize the authorities of other countries, requiring them to “check to ensure compliance with the rules laid down by the regulation” (AG’s opinion, para. 54). As Advocate General Bot pointed out, this would be inconsistent with the rules regarding the transport of animals into the EU, according to which transit companies must meet EU animal welfare standards only once they enter EU territory (AG’s opinion, para. 82).

Comment

It is particularly interesting to see Zuchtvieh in light of the Court’s other recent case law on the extraterritorial application of EU rules. Traditionally speaking, international law frowns upon extraterritorial regulation, instead deferring to state sovereignty and its corollary, the principle of non-interference in the affairs of other states. Extraterritorial rules are thus only permissible where there is a solid jurisdictional reason for enacting them (for example, because the actors involved are nationals, or the behaviour abroad has domestic territorial effects). In recent years, however, the CJEU has seemed quite willing to use the ambiguity inherent in these jurisdictional terms to permit the application of EU rules that have legislative effects in third states. It has justified the application of such rules outside its borders using what Joanne Scott has helpfully termed “territorial extension”: the practice of using a (potentially quite limited) territorial connection with the EU to justify the regulation of conduct taking place in third states.

In the Air Transport Association case, for example, an association of American air transport companies challenged the EU’s decision to apply its carbon emissions trading scheme to emissions by non-EU planes that took place outside European territory, if those flights landed in the EU. The CJEU found that this was permissible, and should not be seen as violating the prohibition of extraterritorial regulation under customary international law. (ATA para. 157). In the Court’s view, the emissions trading scheme was not ‘extraterritorial’, because it was applied only at airports within EU jurisdiction—regardless of any effects on extraterritorial behaviour. For other examples of broad readings of regulatory jurisdiction by the CJEU, one might look to earlier cases such as Minin, Poulsen, and Ebony Maritime.

Similarly, in Zuchtvieh, the CJEU found that there was no extraterritorial regulation because the permit for transporting the animals in question was issued within the EU. While Advocate General Bot expressed his concern regarding the effects such an interpretation would have on the conduct of transporters and customs officials in third states, the CJEU clearly did not find these issues relevant to its determination.

The Zuchtvieh ruling is expected to have positive effects on animal welfare, improving conditions for the millions of animals transported from the EU to third states every year. In addition to these concrete effects, however, the judgment also demonstrates the increasing tendency of the CJEU to expand the permissible reach of EU legislation to conduct taking place on third state territory.

It remains to be seen whether this trend will continue, and at what point the CJEU will consider that the extraterritorial reach of EU law has reached its limit. One may indeed question the impact of this case on the so-called ‘external dimension’ of EU law, which is one of the key concerns nowadays for EU policy-makers. Is the EU entitled to export its rules/values/fundamental rights standards to other countries? At what point does ‘territorial extension’ become an illegal or illegitimate exercise of EU authority? EU ‘territorial extension’ definitely encounters quite some resistance from the international community. Despite the CJEU’s approval of the emissions trading scheme in Air Transport Association, for example, international backlash against the rule was so strong that the EU agreed to suspend its operation so long as international negotiations on a more global rule were underway. Alhough Zuchtvieh has thus far not generated a similar protest, it does change the standard international legal conversation about jurisdiction, pushing an expanded understanding of who can and should regulate the behaviour of cross-border economic activities.

– See more at: http://europeanlawblog.eu/?p=2793#sthash.LpI7T1bP.dpuf

VERFASSUNGSBLOG : Europe’s Justice Deficit

SEE ORIGINAL CONTRIBUTIONS HERE

The EU affects the lives of many people in ways they perceive as profoundly unjust. Lives are dramatically affected by the policies of austerity, widely understood to be EU-imposed. With the Court of Justice appearing to stand for its own authority and EU autonomy at any cost; with migrants attempting to reach fortress Europe and drowning en masse as the EU cuts back its rescue services; and with economic inequalities in the Member States reaching new heights, could it be that there is a justice deficit in Europe, exacerbated by the European Union? There is an urgent need to address the question of justice as an EU objective openly and without reservation, and not to permit nationalists and Eurosceptics to monopolize this debate. On the occasion of the newly launched book “Europe’s Justice Deficit?”, co-edited by EU constitutional law scholars Dimitry Kochenov, Gráinne de Búrca and Andrew Williams, we put this question up for debate.

COE Human Rights Commissioneer : Reinforcing democratic oversight of security services cannot be further delayed

Strasbourg, 5 June 2015 – “The current systems of oversight of national security services in Europe remain largely ineffective. Revelations over the last years about security operations which have violated human rights should have prompted reforms in this field, but progress has been disappointingly slow. European countries must now ensure more democratic and effective oversight of what their security services do and avoid future operations leading to new human rights violations,” said today Nils Muižnieks, Commissioner for Human Rights, while presenting a report on this topic.

The report intends to provide guidance to strengthen human rights protection in the field of security services. It sets forth a number of measures necessary for making national oversight systems more effective and the security services accountable and fully compliant with human rights standards. “Security service activities impact a variety of human rights, including the right to life, to personal liberty and security, and the prohibition of torture or inhuman, cruel and degrading treatment. They also impinge on the right to privacy and family life, as well as the rights to freedom of expression, association and assembly, and fair trial. It is therefore crucial that security services uphold the rule of law and human rights in undertaking their tasks.”

Council of Europe member states have taken diverse approaches to oversight, which include parliamentary committees, independent oversight bodies, institutions with broader jurisdictions such as ombudspersons, data commissioners and judicial bodies. However, none abides fully to internationally established norms. Drawing upon international and European standards and national practices, the paper sets out the most significant objectives and overriding principles that can enable more effective oversight of security services. “It is necessary to keep oversight democratic, primarily through the involvement of parliaments. It is also crucial to ensure prior authorisation of the most intrusive measures, including surveillance, and to establish a body able to issue legally binding decisions over complaints by individuals affected by security activities, as well as to access all intelligence-related information,” said the Commissioner.

“Security services exist to protect our democracies. Their work is fundamental to ensure that we all can live in security. This paper intends to show how their activities can be best sustained by policies which ensure their lawfulness and accountability. Ensuring that security agencies operate under independent scrutiny and judicial review does not reduce their effectiveness. On the contrary, governments would increase their credibility among the public and weaken support for anti-democratic causes if they show as much resolve in safeguarding human rights as in fighting terrorism.”

The executive summary and the Commissioner’s recommendations are also available in French and German. Translations into Turkish and Russian are under way.

To read more about the Commissioner’s work on counter-terrorism and human rights, please visit this page.

Press contact in the Commissioner’s Office:
Stefano Montanari, + 33 (0)6 61 14 70 37; stefano.montanari@coe.int
www.commissioner.coe.int; Twitter: @CommissionerHR; Facebook; youtube

The Commissioner for Human Rights is an independent, non-judicial institution within the Council of Europe, mandated to promote awareness of, and respect for, human rights in the 47 member states of the Organisation. Elected by the Parliamentary Assembly of the Council of Europe, the present Commissioner, Mr Nils Muižnieks, took up his function on 1 April 2012

THE FRENCH “WAR ON TERROR” IN THE POST-CHARLIE HEBDO ERA

ORIGINAL PUBLISHED ON EUCRIM EDITED BY THE MAX PLANCK INSTITUTE AND THE EUROPEAN CRIMINAL LAW ASSOCIATION’S FORUM (*)

by Vasiliki Chalkiadaki

I. Introduction

France’s history of terrorism is neither new nor exclusively Islamist-related. At the end of the 1970s, France experienced a wave of terrorist activity both from left-revolutionary groups, such as the Action Directe,1 and from nationalist-separatist groups, especially those active in Brittany, Corsica, and the Basque Country.2 By the early 1980s, however, France had become a target of Islamist terrorist groups and has remained so ever since, as the gunmen attack on the Paris headquarters of the satirical magazine Charlie Hebdo on 7 January 2015 demonstrated.3

The history of contemporary French counterterrorism legislation dates back to 1986, with the law on counterterrorism of 9 September 1986. Before the latter, France dealt with terrorist attacks by means of special laws on state security that had been enacted during the Algerian wars (1954–1962), which provided for an intensive limitation of individual rights and even for a special court to deal with the relevant offences (Cour de Surete de l’Etat, “Court of State Security”)4 that was abolished only in 1982. Therefore, until 1986, no specific counterterrorism legislation existed.

Before 1986, terrorist acts were characterized as “serious violent acts threatening the integrity and the security of the state” and treated accordingly.5

This paper presents the impact that the latest terrorist attack (hereafter: the Charlie attack) has had so far on France’s counterterrorism legislation (part III). After a brief historical overview of current legislative measures (part II), the following aspects are examined as being the effects of the attack:

the enactment of a series of provisions, mainly in the Code of Internal Security (Code de securite interieure, hereafter: Cod. Sec. Int.);
the exponentially increasing number of prosecutions on the basis of already existing substantive criminal law provisions (especially the glorification of terrorism and the preparation of terrorist acts);
the planning of new measures and the drafting of the relevant provisions regarding the financing of terrorism to reinforce the already existing framework on terrorist financing.

II. Historical overview Continue reading “THE FRENCH “WAR ON TERROR” IN THE POST-CHARLIE HEBDO ERA”

The US legal system on data protection in the field of law enforcement. Safeguards, rights and remedies for EU citizens

EXECUTIVE SUMMARY OF STUDY FOR THE EUROPEAN PARLIAMENT LIBE COMMITTEE PUBLISHED HERE

by Francesca BIGNAMI (*)

In US law, there are a number of different legal sources that govern data protection in the field of federal law enforcement. This study first considers the two most important sources of data protection law^the Fourth Amendment to the US Constitution and the Privacy Act of 1974. It then turns to the most significant methods of information collection that are available for ordinary criminal investigations and national security investigations and the data protection guarantees set down under the laws authorizing and regulating such information collection.

The Fourth Amendment prohibits “unreasonable searches and seizures” by the government. Reasonableness is established if the search or seizure is conducted pursuant to a valid warrant, that is, a judicial order based on a showing of probable cause and on a particular description of the property to be searched and the items to be seized. Reasonableness can also be established if one of the exceptions to the warrant requirements exists. In the data protection context, however, the application of the Fourth Amendment is relatively limited because of the third-party records doctrine which holds that individuals do not have an expectation of privacy in personal data that they voluntarily turn over to third parties like financial institutions and communications providers. With regard to EU citizens, the Supreme Court has held that foreign citizens resident abroad are not covered by the Fourth Amendment.

Among U.S. laws, the Privacy Act of 1974 is the closest analogue to a European data protection law in that it seeks to regulate comprehensively personal data processing, albeit only with respect to federal government departments and agencies. It regulates the collection, use, and disclosure of all types of personal information, by all types of federal agencies, including law enforcement agencies. At a general level, the Privacy Act contains most of the elements of the EU right to personal data protection. However, it only protects US citizens and permanent residents, not EU citizens.

Furthermore, there are a number of exemptions available specifically for law enforcement agencies. As a result, the benefits of the proposed legislation on judicial redress for EU citizens are unclear. The proposed legislation contemplates three types of law suits, two of which are designed to protect the right of access to and correction of personal data, and one of which enables individuals to obtain compensation for unlawful disclosures of personal data. Since law enforcement agencies commonly exempt their data bases from the access requirements of the Privacy Act, the right of action for intentional or willful disclosures that cause actual damage is the only one that would be available on a general basis.

In investigations involving ordinary crime, there are at least three different methods of personal data collection available to law enforcement officials: (1) use of private sources like commercial data brokers; (2) court and administrative subpoenas; (3) electronic surveillance and access to electronic communications based on a court order under the Electronic Communications Privacy Act. These information-gathering methods afford the same level of data protection for US and EU citizens.

With respect to EU data protection law, however, some of these methods contain relatively few data protection guarantees.

In the case of private sources of personal data, this is attributable to the absence of a comprehensive data protection scheme in the private sector and the vast quantities of personal information freely available to market actors and, consequently, also to law enforcement officials. With respect to the subpoena power and access to communications metadata and subscriber records (under the Stored Communications Act and the Pen Register Act), the lack of significant data protection guarantees is associated with the standard of “relevance” to any type of criminal investigation and the permissive application of that standard by the courts. The law and jurisprudence of “relevance,” in turn, is driven by the failure of US law to recognize a robust privacy interest in the personal data held by corporate entities and other third parties.

In investigations involving national security threats, which can involve both an intelligence and a law enforcement component, there are a number of additional means available to the government: (1) a special type of administrative subpoena known as a “national security letter”; (2) surveillance authorized by the Foreign Intelligence Surveillance Act (FISA); (3) any other form of intelligence gathering authorized by Executive Order 12,333 (and not covered by FISA). The information gathered through such methods can be shared with criminal prosecutors if relevant for law enforcement purposes.

Foreign intelligence gathering, both inside and outside the United States, follows a two-track scheme, one for US persons and another for non-US persons. With the exception of FISA electronic and physical surveillance orders, the data protection guarantees afforded to non-US persons are minimal. The stated intent of Presidential Policy Directive 28 is to provide for stronger personal data protection for non-US persons, but it is difficult to come to any conclusions at this point in time on what effect it will have.

More generally, even with respect to US persons, personal data protection under foreign intelligence law raises a couple of questions.

The first concerns the point in time when the right to privacy is burdened by government action. The US government has suggested that in the case of bulk collection of personal data, harm to the privacy interest only occurs after the personal data is used to search, or results from a search of, the information included in the data base.

This position stands in marked contrast with EU law, where it is well established that bulk collection, even before the personal data is accessed, is a serious interference with the right to personal data protection because of the number of people and the amount of personal data involved.

The second question concerns the conditions under which personal data can be shared between intelligence and law enforcement officials. In the realm of data processing by law enforcement and intelligence agencies, the European courts have emphasized that intrusive surveillance can only be conducted to combat serious threats that are carefully defined in law. They have also held that the information that results from such surveillance can only be used to combat those serious threats, whether to take national security measures or to prosecute the associated criminal offenses. In US law, by contrast, the law allows for intelligence to be transferred to the police and criminal prosecutors for any type of law enforcement purpose.

Continue reading here

(*) Prof. at George Washington University Law School, Washington, DC, USA

Summer School on The European Area of Criminal Justice (Brussels, 29 June – 3 July 2015)

NB: This Summer School is particularly designed for practitioners in the field of police cooperation and judicial cooperation in criminal matters, EU or national civil servants, as well as researchers and students interested in EU “Freedom, Security and Justice” policies.

Programme (See updated version here)

The 12th edition of the Summer School “The EU Area of Criminal Justice” will take place in Brussels from 29 June – 3 July 2015.

The objective of the Summer School is to provide participants with an extensive knowledge of EU criminal law. The classes are both theoretical and practical. They are conducted by academics, national experts or European officials who deal every day with the European criminal area.

The Summer School is specially designed for practitioners in the field of police and judicial cooperation in criminal matters, EU or national civil servants as well as researchers and students interested in the EU area of freedom, security and justice.

Concerning the programme: the Summer School takes place over a week, lectures are in English, participants receive a certificate of attendance, the final examination entitles participants to receive 3 ECTS and lawyers to gain 37 points from the OBFG (Ordre des Barreaux Francophones et Germanophone de Belgique).

The Summer School covers essentially 5 topics :

subject I (day 1): general introduction (historical evolution, institutional issues – Schengen included, judicial control – EU accession to ECHR included);
subject II (day 2): cooperation between national authorities in criminal cases, covering both police cooperation and judicial co-operation. The latter will address the evolution from classic judicial cooperation (Mutual Legal Assistance instruments) to mutual recognition instruments, with special attention to the European Arrest Warrant;
subject III (day 3): approximation of criminal law, in theory and practice. Thus, following a class on the approximation of substantive criminal law, the example of financial crimes will be addressed. Similarly, the theoretical course on approximation of procedural law will be complemented with the study of the Directive on the right of access to a lawyer;
subject IV (day 4): current and future actors of the European criminal area, particularly Eurojust, Europol and the EPPO.
subject V (day 5): data protection and external dimension of the EU area of criminal justice. The Summer School will end with a negotiation exercise.

Special events during the Summer School:

Mid-week conference : “Foreign fighters – a criminal law revolution?”

The conference will be chaired by Hans G. Nilsson (General Secretariat of the EU Council) and will count on speeches from illustrious practitioner and professors. For details, please download the programme on the right.

The Summer School is organised by the Institute for European Studies of the Free University of Brussels (IEE-ULB) in collaboration with the European Criminal Law Academic Network (ECLAN).