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

DON’T ROCK THE BOAT: EU LEADERS DO AS LITTLE AS POSSIBLE TO ADDRESS THE MIGRANT CRISIS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS  Thursday, 23 April 2015

by Steve Peers

Yesterday the EU leaders, in the European Council, adopted a policy for addressing the recent crisis of large-scale migrant death tolls crossing the Mediterranean. It builds upon the recent 10-point plan adopted by ministers (discussed here), but builds upon it in some respects. There were also some interesting last-minute changes to the earlier draft of the text (all of which are shown in the annex below), indicating leaders’ real priorities.

Detailed comments

At first sight, the leaders’ statement shows more compassion than the 10-point plan, referring to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent more people from dying at sea’. To this end, there is a specific commitment to triple the funds for ‘search and rescue’ as regards existing EU operations. However, this is only ‘within the mandate of Frontex’ – and the head of the EU border agency has stated that this agency does not really have a search and rescue role.

It should be noted that since these operations are coordinated by Frontex, detailed rules of EU law will apply (discussed here) will apply. These rules do allow, in some cases, for returns of migrants directly from their rescue to non-EU countries – as long as those countries are safe. It is unlikely that in the current situation, Libya would qualify as safe.

The destruction of traffickers’ vessels ‘before they are used by traffickers’ seems to suggest some Minority Report style precognisance of the future use of the boats, considering that traffickers do not paint logos on the side of their boats like ferries or shipping companies. This is also qualified by a reference to compliance with international law. It may be questioned whether this action will legally be a foreign policy operation (as the leaders assume), given the approach to EU law taken in a recent CJEU opinion concerning the EU’s anti-pirates operation (discussed here).

As compared to the 10-point plan, there is a reference to Interception of communications, and a very brief reference to the root causes of the problem (conflict in countries of origin, as well as Libya). The EU leaders took out a reference to stopping migrants making it to the Mediterranean shores, but it’s obvious that this is the main intention of stepping up cooperation with sub-Saharan countries.

There’s an added stress on readmission treaties, including with countries of transit; this refers implicitly to EU readmission treaties with North African states (not Libya) currently under negotiation. There are also two added references to the right to asylum and EU asylum law, confirming that the EU leaders do not intend to simply return migrants without considering their claims. Some press reports had erroneously suggested an intention to return many thousands of migrants without considering claims, but if migrants make it to EU waters or land, it would be illegal to return them without examining their claims under EU law. Migrants can be returned to countries of origin or transit if their asylum claims are unfounded, as long as those countries are safe. Again, returning migrants to Libya would, under current circumstances, breach EU and human rights law as long as that country does not appear safe.

As compared to the 10-point plan, it appears that the intention is not to fingerprint all migrants, but only those applying for asylum; this simply re-iterates long-standing EU law. More generally, the plan says little about safe passage, removing the original (and puny) target number of 5,000 resettlement places, and not referring to other forms of safe passage instead. (While it would be difficult to issue humanitarian visas in Libya, it would be possible to offer this option – discussed further here – in other States). Equally, there is little practical solidarity with frontline states; other Member States offer cash and help with processing and return, but weakened any significant commitment to relocate people from those frontline States.

There is an immediate commitment to issue a ‘roadmap’ next week, pre-empting the Commission’s agenda-setting role (its strategy paper is due in May). However, the role of the European Parliament may still prove significant, since it must approve any funding decisions or changes in legislation.

Conclusions

Overall, the new commitment to search and rescue is welcome, although it is qualified in light of Frontex’s limited powers.  The desire to address root causes is good but seems half-hearted, and this is easier said than done. A more ambitious strategy regarding the processing of asylum claims in non-EU transit states is probably necessary in the medium term, but neither the EU leaders nor asylum NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’ boats is subject to legal and practical constraints, and will be almost literally a drop in the ocean. The summit result is frankly pathetic as regards safe passage of migrants, ensuring that they avoid the risk of the crossing altogether, and it is marginal as regards assistance to frontline Member States.

On the whole, it seems that the leaders want to do as little as possible to change the current approach to dealing with the crisis. Similar to their method of dealing with the euro crisis, this looks like a short-term patch-up that offers less than first appears, which will probably have to be revisited soon.

THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS Wednesday, 22 April 2015

by Steve Peers

On Monday, EU foreign and interior ministers adopted a ten-point plan in response to the recent huge death toll of migrants crossing the Mediterranean. There will be a summit on Thursday to examine the issue further, and then an EU Commission strategy proposed on May 13th. But for now, I want to examine the initial plan.

Overall, this is a very disappointing document. It’s not only vague on crucial details but more importantly focusses less on the situation of the migrants (addressing the root causes which cause them to move, and protection from drowning and persecution) and more on border control and repression. One point in the plan constitutes a rather crass example of ‘policy laundering’ – attempting to use a crisis to shove through an essentially unrelated policy objective.

Let’s look at the ten points of the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians only’ approach which some have suggested. For alternative solutions to the problem, see the proposals of the UN Special Rapporteur on Migrants, the EU’s Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase. Continue reading “THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?”

L’Union européenne et la crise de l’immigration en Méditerranée : le bal des hypocrites

ORIGINAL PUBLISHED HERE 22 AVRIL 2015

par Henri Labayle, CDRE

Rien ne change. Les minutes de silence au sein des institutions européennes ne se comptent plus face à la litanie des morts et des disparus lancés en Méditerranée.

Comme il y a près de vingt ans à Douvres devant les cadavres de 54 clandestins chinois, les Etats membres et les institutions de l’Union promettent que cette fois-ci est la dernière, qu’enfin des mesures efficaces seront prises pour faire face à l’inacceptable : des centaines de morts en quelques semaines, des milliers à venir en quelques mois si l’indifférence persiste. Faute de reconnaître son échec, l’Europe est incapable de changer d’approche en affrontant autrement la réalité. Au bal des hypocrites, le carnet de chacun est donc bien rempli.

1. Le double langage des Etats membres

L’environnement de l’Union est devenu extrêmement dangereux, troublé par une multitude de conflits. Graves autant que nouveaux, ils engendrent des mouvements de personne quasiment impossibles à réguler, pour partie imputables d’ailleurs à l’imprudence des interventions militaires occidentales, en Irak ou en Libye.

Les populations persécutées par Daesch comme par Bachar El Assad appellent la protection autant que celles fuyant la guerre en Erythrée, lorsqu’elles se jettent dans l’exode. Quoi que les politiciens prétendent aux opinions publiques nationales, cette protection leur est due et l’Union européenne n’en est pas la cause. Nous l’avions décidée bien avant, inscrite dès 1946 dans notre constitution et dans la Convention de Genève comme nos voisins depuis 1951. Notre indifférence contemporaine à la misère humaine ne peut occulter un choix qui est partie intégrante de nos valeurs. Les dévoiements tout aussi indiscutables du droit d’asile ne peuvent le masquer. N’est pas australien qui veut.

Quelle est l’attitude individuelle comme collective des Etats européens devant ce constat ? Une fuite devant leurs responsabilités et le refus de tirer les conséquences de leur impuissance matérielle et budgétaire à garantir isolément leurs frontières respectives. Ceux qui proclament le contraire en réclamant leur rétablissement ont-ils oublié l’échouage d’un cargo turc transportant des immigrants kurdes sur une plage corse et imaginent-ils ce qu’il adviendrait demain d’une vague semblable à celle de la Sicile ?

Ce refus s’est traduit d’abord, en Méditerranée. Sous couvert de soulager l’Italie qui avait lancé à grands frais l’opération de sauvetage « Mare nostrum » après une première catastrophe, les Etats membres lui ont substitué l’opération conjointe « Triton ». Elle a divisé les coûts par trois et couvert une zone moindre, aux seules fins de surveillance de la frontière commune. Les 4 avions et 21 bateaux alloués par une vingtaine d’Etats, dont certains ne sont pas membres de l’Union, illustre bien le peu d’enthousiasme étatique à défendre la frontière commune avec Frontex, rapportés aux moyens mis en oeuvre par la seule Italie …

L’opération n’illustre d’ailleurs pas les clichés habituels. Si la Roumanie (tenue à l’écart de Schengen) ou la Slovénie et la Lettonie répondent présentes, tel n’est pas le cas de la Hongrie, pourtant consommatrice de crédits de l’Union dans ce registre, ou de l’Irlande et du Royaume Uni. Certes, le refus de ces derniers de participer à l’espace Schengen est connu mais on sait tout autant qu’une partie importante de ces demandeurs de protection se retrouvera en fin de compte à Calais, dans l’espoir d’un passage … En attendant, c’est un navire islandais, le Tyr, qui est au rendez vous du canal de Sicile.

Passé les mots de l’émotion, le cynisme l’emporte donc largement. L’opposition à Mare Nostrum était ouvertement menée au moyen d’un argument glaçant de réalisme : sécuriser le passage en sauvant les naufragés serait un appel d’air au commerce des passeurs … L’augmentation actuelle du nombre de naufragés alors que cette opération est précisément terminée témoigne de l’erreur d’appréciation commise, son incompatibilité évidente avec la morale et le droit de la mer ne suscitant aucun doute.

Les attitudes individuelles ne sont guère plus glorieuses. Les envolées françaises sur le droit d’asile, tradition de notre pays, et les déclarations martiales du chef de l’Etat appelant à régler des « questions devenues insupportables » ne dissimulent pas le double langage.

Celui par exemple des résistances de la diplomatie française lorsqu’il fallut, en 2014, réglementer le cadre de la surveillance des frontières maritimes extérieures conformément aux grands principes. Pas davantage que n’est infirmé le bien fondé des remarques de la Cour des comptes et du Sénat sur le projet en discussion relatif au droit d’asile qui prétend faire mieux en n’octroyant aucun moyen nouveau …

D’autant que le couplet habituel sur une France « terre d’asile » appelle modestie : quatrième Etat européen à enregistrer des demandes d’asile (62.000), nous sommes devancés par l’Allemagne (plus de 200.000), la Suède et l’Italie, en 2014. Et pour ce qui est de leur acceptation, nous ne dépassons pas 15.000 dossiers … trois fois moins que l‘Allemagne, autant que les Pays Bas qui sont bien moins sollicités, 20% qui se situent largement au dessous de la moyenne européenne.

C’est bien là que le bât blesse : comment l’Union européenne peut-elle sérieusement prétendre à une solidarité quelconque quand l’essentiel de la pression pèse sur un dixième de ses membres, 3 Etats seulement ? Que font les autres ?

2. L’inconsistance de l’Union européenne       

Continue reading “L’Union européenne et la crise de l’immigration en Méditerranée : le bal des hypocrites”

J.P.Jacqué : Le droit pour la Commission de retirer une proposition législative. A’ propos de l’arrêt du 14 avril 2015 (C‑409/13)

ORIGINAL PUBLISHED ON LE DROIT DE L’UNION EUROPEENNE

par Jean Paul Jacqué

L’existence d’un droit pour la Commission de retirer une de ses propositions a, de tout temps, constitué une pomme de discorde entre le Conseil et la Commission. Pour la Commission, le droit de retrait devait être considéré comme un corollaire du droit d’initiative que lui reconnaît le traité. Il s’appuie sur l’article TFUE qui indique que la Commission peut à tout moment modifier sa proposition avant que le Conseil n’ait statué. Le retrait serait l’une des variantes du pouvoir de modification. Dans la mesure où le Conseil peut amender une proposition de la Commission sans l’accord de celle-ci dès lors qu’il statue à l’unanimité, le retrait viendrait tempérer ce pouvoir du Conseil. Pour le Conseil, il ne saurait être question de reconnaître à la Commission ce qui s’apparenterait à un veto législatif. Dès lors que le Conseil réunissait l’unanimité pour amender une proposition de la Commission, cette dernière ne devait pas avoir le pouvoir de faire obstacle à la volonté du Conseil. L’argumentation de la Commission méconnait la philosophie initiale du système.  Si la Commission s’est vue reconnaître le droit de modifier sa proposition, c’est pour lui permettre de rejoindre, si elle de désirait, la position d’une majorité d’Etats membres afin de permettre l’adoption d’une proposition qui n’aurait pas recueilli l’unanimité. Cette situation n’avait rien avec un droit de retrait qui n’avait pas été envisagé par les pères fondateurs[2]

Jusqu’à présent, cette divergence de vues entre institutions n’avait pas provoqué de difficultés insurmontables. Le retrait unilatéral par la Commission a été pratiqué cinq fois, essentiellement lors de la Commission Delors. Les autres cas de retrait étaient plus consensuels. Il s’agissait essentiellement du retrait de propositions devenues caduques ou affectées par un changement de circonstances et il était généralement précédé par des consultations avec le Parlement et le Conseil. La Commission avait également pris l’habitude de procèder à des retraits « administratifs » lors de son entrée en fonction Ceux-ci concernaient des propositions anciennes qui n’avaient pas uscité l’intérêt du législateur. Elle pouvait s’appuyer sur un prétendu principe de discontinuité législative que connaissent de nombreux parlements nationaux et qui est soutenu par le Parlement européen lequel est favorable à la caducité des propositions non adoptées pendant la précédente législature avec des exceptions pour celles adoptées en première lecture ou celles dont il veut poursuivre l’examen. En raison de l’opposition du Conseil, ces retraits étaient généralement précédés des négociations interinstitutionnelles.

La Commission Juncker semble s’être affranchie de ces contraintes en procédant à des retraits systématiques concernant des propositions dont le Parlement souhaitait poursuivre l’examen ce qui a donné lieu à controverses[3]. Continue reading “J.P.Jacqué : Le droit pour la Commission de retirer une proposition législative. A’ propos de l’arrêt du 14 avril 2015 (C‑409/13)”

EU Zombie Law: the CJEU re-animates the old ‘third pillar’

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Back in 1993, when the Maastricht Treaty entered into force, the EU began adopting measures on criminal law and policing under a peculiar institutional system, known in practice as the ‘third pillar’ of EU law. This system was amended by the Treaty of Amsterdam in 1999, and then survived several attempts to kill it over the next decade; indeed I once compared it to Rasputin. The Treaty of Lisbon nominally finished it off it as from that Treaty’s entry into force (1 December 2009); but this was subject to a five-year transitional period.

That makes it sound as though the third pillar finally came to an end on 1 December 2014 – but it did not. Indeed two judgments of the CJEU yesterday (here and here) not only maintain old third pillar measures in force, but allow new measures based on them to be adopted. Third pillar measures aren’t exactly dead yet – rather they are undead. Let’s take a look at these zombies of EU law.

Background

The Treaty of Lisbon has a transitional Protocol, which contains two rules relating to the third pillar. First of all, Article 10 sets out the five-year transitional period, after which the normal jurisdiction of the CJEU would apply to the measures concerned. At the same time, the UK could choose to opt out of all of these measures, and then opt back in to some of them, as it indeed did last year (see discussion here).

Secondly, Article 9 of that Protocol, which is not subject to a time limit, states that third pillar measures adopted before the entry into force of the Treaty of Lisbon stay in force until they are amended or repealed. Some of them have been amended or repealed, or will be soon (the law establishing Europol, for instance). But the majority remain in force, including the controversial law establishing the European Arrest Warrant (EAW).

Why does this still matter? First of all, the pre-Lisbon measures don’t confer direct effect on individuals, so can’t be invoked to create rights in national courts. Secondly, this means that the European Parliament (EP) has not had any real say in the adoption of these measures. In particular, the EP has a lot of excellent suggestions for the reform of the EAW. Thirdly, a legal question arises as to whether the pre-Lisbon measures can serve as a legal basis for the adoption of new measures even after the entry into force of the Lisbon Treaty. This question was answered by yesterday’s judgments.

Judgments

The EP challenged the validity of post-Lisbon Council measures which had implemented pre-Lisbon EU criminal law acts, in particular giving police forces access to the EU’s Visa Information System and prohibiting some new designer drugs. There are parallel actions still pending, against measures implementing pre-Lisbon laws establishing Europol and the ‘Prum’ system of exchanging data between national police forces.

The reason for the EP’s objection to these measures was that the Council exercises these powers by means of a qualified majority vote, and argues that it does not have to consult the EP at all, since the legal requirement to consult the EP was set out in the old third pillar rules in the Treaty, which were repealed by the Treaty of Lisbon. In the EP’s view, the Council should use the post-Lisbon rules for the adoption of implementing measures, ie giving the Commission the power to adopt delegated acts over which the EP has control. Alternatively, fresh EU legislative acts have to be adopted; these would be subject to the ordinary legislative procedure.

The CJEU ruled that, in accordance with Article 9 of the transitional protocol, the pre-Lisbon measures remain in force. In the Court’s view, that also means that the Council is entitled to adopt implementing measures following the pre-Lisbon process. However, the Court, unlike the Advocate-General, said that the Council at least has to consult the European Parliament on these measures. It reasoned in effect that the cross-reference to the repealed Treaty rules in the pre-Lisbon legislation retained those rules in force.

Comments

The Court’s ruling in effect allows the Council to create new third pillar acts long after the third pillar has nominally died. It’s as if zombies could procreate, and give birth to baby zombies (I’m going for a ‘grossest legal analogy’ award here).  Furthermore, the Court’s reasoning as regards the EP’s partial victory means that to some extent, even aspects of the long-dead Treaty rules on the third pillar have now been zombified by the Court.

How much damage could these zombies do? There’s no risk of the famous ‘zombie apocalypse’ affecting EU law. Apart from these implementing measures, all other EU criminal law acts adopted since the Treaty of Lisbon have taken the normal EU form of Directives and Regulations, and have been subject to the post-Lisbon procedures (usually the ordinary legislative procedure). Many pre-Lisbon EU measures (such as the EAW law) don’t provide for implementing measures, and some of those which do (such as the Europol law, as mentioned already) will be replaced soon.

The Court’s rulings are a reasonable legal interpretation of the transitional rules. But the broader political problem remains: many controversial measures affecting civil liberties have had no real input from the EP. Since its resort to the courts has had only limited success, the EP should now consider alternative means (blocking legislation or budget disbursements) to achieve the goals of reviewing pre-Lisbon EU criminal laws – and in particular securing much-needed reforms to the EAW.

 

Europe behind bars: the use of the European Prison Rules in the French prison system. Awaiting the European Union?

by Charline QUILLÉROU (EU-LOGOS Athéna trainee)

NB The text below summarizes a French Master thesis.

The reform of the prison system is a sensitive issue in France. This debate takes place in a context of dilapidating prison buildings and chronic overcrowding, exacerbated by punitive criminal justice policies. Such a situation leads to sub-human conditions of detention that have been condemned many times, both nationally by MPs[1], associations involved in the defence of detainee’s rights[2] or various papers[3], and internationally by the Commissioner for Human Rights of the Council of Europe[4] and the European Court of Human Rights. The reforms undertaken have difficulties improving significantly these conditions of detention.

The Council of Europe (CoE) and the European Union (EU) have a role to play in protecting the rights of persons deprived of their liberty. Recommendations have been instrumental in changing national practices. Nevertheless, the EU has almost turned a deaf ear to it while the CoE has been very active. In its resolution of December 2011, the European Parliament recognised that “whereas detention conditions and prison management are primarily the responsibility of Member States […] shortcomings, such as prison overcrowding and allegations of poor treatment of detainees, may undermine the trust which must underpin judicial cooperation in criminal matters based on the principle of mutual recognition of judgments and judicial decisions by EU Member States”[5]. As a result in June 2011, the European Commission published a Green paper entitled “Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention”.  Since then, nothing has happened at the level of the EU.

The CoE is an intergovernmental organisation created in 1949 by a group of European countries – Belgium, Denmark, France, the United-Kingdom, Iceland, Italy, Luxembourg, the Netherlands, Norway and Sweden – that today consists of 47 Member States. All the EU Member States take part in the CoE, together with Turkey and Russia, to name but a few. According to its statute, “the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.”[6] To achieve that purpose, especially in regards criminal matters, the CoE relies on the European Court of Human Rights (ECtHR) and the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

The European Prison Rules (EPR) consist of a set of three recommendations made by the CoE which define the minimum rules applicable in prison facilities both for detainees and staff. They cover many aspects of prison life such as hygiene, nutrition, contact with the outside world, work, recreation, education, transfer of prisoners, health or training of prison staff. Therefore, the idea is to harmonise national practices across Europe. Initially adopted in 1973, the EPR were updated in 1987 and 2006. The latest update attempted to take into account the developments in the jurisprudence of the ECtHR, in the norms established by the CPT, in societal changes that arose due to security constraints in the aftermath of 9-11 and the resulted prison population inflation.

There are 108 EPR, detailed in 308 recommendations. It is of crucial importance to understand that a recommendation is not legally binding. The EPR are not entitled to be transposed into national law as such, but are meant to serve as a guide for Member States in formulating their policies and legislation. This is well exemplified in the Commentary to Recommendation Rec(2006)2 that indicates : “prison administrations should seek to apply all Rules in the letter and the spirit of the principles.”[7] The main objectives are the establishment of common standards and reinforcement of international cooperation through appropriate incentives. The incitement dimension of the EPR refers to the issue of the influence of the CoE within the territory of the Member States that has been theorized as “europeanisation”. The europeanisation process refers to the influence of the European institutions or organisations on national and sub-national politics, policies and polity. Prison matters are barely addressed by the European institutions and CoE recommendations are not legally binding. On such important policies, europeanisation is only about the Council of Europe, even though human rights lie at the heart of the EU.

If European activities have a substantial impact on national institutions and policies, heterogeneity is its main feature. The adoption of the revised EPR in 2006 is a case in point, revealing the complex mechanisms of europeanisation at work. This is all the more true given that it led to the adoption of the French prison law of 24 November 2009, which, according to the Ministry of Justice Web site, “validated and translated into domestic legislation the majority of the European Prison Rules”. All these elements raise the following question:

To what extent do the European Prison Rules participate in the europeanisation of the French prison system? Continue reading “Europe behind bars: the use of the European Prison Rules in the French prison system. Awaiting the European Union?”

State Surveillance: the Venice Commission updates its 2007 Report

By Emilio DE CAPITANI

The Council of Europe’s, European Commission for Democracy Through Law (VENICE COMMISSION) during its 102nd Plenary Session (Venice, 20-21 March 2015) has updated its 2007 Report on the democratic Oversight of the security services and report on the democratic oversight of Signals Intelligence Agencies.
In a time where EU founding States such as France are discussing some very cotroversial rules on potential mass interception and the European Union is more and more attracted by the so called “intelligence led policing” the Venice Commission recommendations are particulary timely and worth reading.

Below the Executive Summary of the updated Venice Commission’s Report.

1. The scope of the study.
As a result of processes of globalization and of the creation of internet, internal and external security threats may not be easily distinguished anymore. Significant threats may come from non-state actors. Consequently, one of the most important developments in intelligence oversight in recent years has been that Signals Intelligence or SIGINT does not relate exclusively to military and external intelligence anymore, but also falls to some extent into the domain of internal security. Thus, signals intelligence now can involve monitoring “ordinary telecommunications” (it is “surveillance”) and it has a much greater potential of affecting individual human rights. Different states organize their signals intelligence function in different ways. The summary which follows discusses issues generally, and should not be seen as asserting that all states follow a particular model of signals intelligence, or regulate it in a particular way.

2. Is there a need for improved democratic control?
Strategic surveillance involves access both to internet and telecommunications content and to metadata (all data not part of the content of the communication). It begins with a task being given to the signals intelligence agency to gather intelligence on a phenomenon or a particular person or group. Very large quantities of content data, and metadata, are then collected in a variety of different ways. The bulk content is subjected to computer analysis with the help of “selectors”. These can relate to persons, language, key words concerning content (e.g. industrial products) and communication paths and other technical data.

3. Unlike “targeted” surveillance (covert collection of conversations by technical means (bugging), covert collection of the content of telecommunications and covert collection of metadata), strategic surveillance does not necessarily start with a suspicion against a particular person or persons. Signals intelligence aims to inform foreign policy generally and/or military/strategic security, not necessarily at investigating internal security threats. It has a proactive element, aiming at find or identify a danger rather than merely investigating a known threat. Herein lies both the value it can have for security operations, and the risks it can pose for individual rights.

4. Agencies engaged in signals intelligence tend to have the bulk of the intelligence budget, and produce most intelligence, but the systems of oversight over them have tended to be weaker. There are a variety of explanations for this.
First, it is argued that access to mere metadata does not seriously affect privacy, and nor does access to content data because this is done by computerized search programmes (“selectors”). However, metadata now can reveal much about private life, and the content selectors can be designed to collect information on specific human beings and groups.
Second, telecommunications used to be mainly by radio, with an ensuing lower level of privacy expectations; however, the vast bulk of telecommunications is now by fiber-optic cable.
Third, strategic surveillance being aimed at external communications, it was argued that it is the privacy of non-citizens or non-residents which is affected; however, leaving aside the issue of whether such a distinction is acceptable under the ECHR, for technical reasons there is an inevitable mixing of the internal and external communications, and an ensuing risk of circumvention of tougher domestic controls and oversight which might exist over “ordinary” surveillance. Fourthly, controls have been weaker on account of the technical complexity and rapid technological growth of the area. It should be borne in mind, however, that if this sector is left unregulated, it will be the intelligence agency itself instead of the legislature which carries out the necessary balancing of rights, with the risk of erring on the side of over-collecting intelligence. The fifth reason is that various factors – too rapid growth in the size of a signals intelligence agency, rapid growth in technology, loss in institutional memory, political pressure to secure quick results – may adversely impact the integrity and professionalism of the staff. Finally, signals intelligence is an international cooperative network, which creates specific oversight problems.

5. Strategic surveillance is not necessarily “mass” surveillance but can be when bulk data is collected and the thresholds for accessing that data are set low. Signals intelligence agencies tend to possess much more powerful computing facilities and thus have a greater potential to affect privacy and other human rights. They thus need proper regulation in a Rechtsstaat.

6. Jurisdiction.
The collection of signals intelligence may legitimately take place on the territory of another state with its consent, but might still fall under the jurisdiction of the collecting state from the view point of human rights obligations under the ECHR. At any rate, the processing, analysis and communication of this material clearly falls under the jurisdiction of the collecting State and is governed by both national law and the applicable human rights standards. There may be competition or even incompatibility between obligations imposed on telecommunications companies by the collecting state and data protection obligations in the territorial state; minimum international standards on privacy protection appear all the more necessary.

7. Accountability. Organization.
Signals intelligence is expensive and requires sophisticated technical competence. Hence, while all developed states nowadays require a defensive function – cyber security – only some have an offensive signals intelligence capacity, either in the form of a specialist signals intelligence agency or by allocating a signals intelligence task to the external intelligence agency.

8. Form of the mandate.
Most democratic states have placed at least part of the mandate of the signals intelligence function in primary legislation, as required by the ECHR. More detailed norms or guidelines are normally set out in subordinate legislation promulgated either by the executive (and made public) or by the Head of the relevant agency (and kept secret). There may be issues of quality of the law (foreseeability etc) in this respect.

9. Content of the mandate.
The mandate of a signals intelligence agency may be drafted in very broad terms to allow collection of data concerning “relevant” “foreign intelligence” or data of “relevance” to the investigation of terrorism. Such broad mandates increase the risk of over-collection of intelligence. If the supporting documentation is inadequate, oversight becomes very difficult.

10. Collection of intelligence for “the economic well-being of the nation” may result in economic espionage. Strategic surveillance however is useful in at least three areas of business activity: proliferation of weapons of mass destruction (and violation of export control conditions generally), circumvention of UN/EU sanctions and major money laundering. A clear prohibition of economic espionage buttressed by strong oversight and the prohibition for the intelligence agencies to be tasked by the government departments or administrative agencies involved in promoting trade would be useful prevention mechanisms.

11. Bulk transfers of data between states occur frequently.
In order to avoid circumvention of rules on domestic intelligence gathering, it would be useful to provide that the bulk material transferred can only be searched if all the material requirements of a national search are fulfilled, and this is duly authorized in the same way as searches of bulk material obtained through national searches.

12. Government control and tasking.
Taskers depend on the nature of the intelligence sought (diplomatic, economic, military and domestic). Taskers should not be regarded as external controls.

13. Network accountability.
Due to their different geographical location and to the nature of internet, states frequently collect data which is of interest to other states or have access to different parts of the same message. The links between allied states as regards signals intelligence may be very strong. The “third party” or “originator rule” may thus be a serious obstacle to oversight and should not be applied to oversight bodies.

14. Accountability and the case law of the European Court of Human Rights.
The ECHR consists of minimum standards, and it is only a point of departure for European States, which should aim to provide more extensive guarantees. The European Court of Human Rights has not defined national security but has gradually clarified the legitimate scope of this term. In its case-law on secret measures of surveillance, it has developed the following minimum safeguards to be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; definition of the categories of people liable to have their telephones tapped, a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed.

15. The Court’s case law on strategic surveillance is so far very limited, although there is also national case law and oversight bodies practice based on the ECHR. Several of the standards related to ordinary surveillance have to be adapted to make them apply to strategic surveillance. The first safeguard (applicable only to states which allow the use of signals intelligence to investigate crimes) is that the offences which may be investigated through signals intelligence should be enumerated, and thus provision should be made for the destruction of data which might incidentally be gathered on other offences. The exception of transferring data to law enforcement should be narrowly defined and subject to oversight.

16. Another safeguard is a definition of the categories of people liable to have their communications intercepted. The power to contact chain (i.e. identify people in contact with each other) should be framed narrowly contact chaining of metadata should normally only be possible for people suspected of actual involvement in particularly seriously offences, such as terrorism. If the legislature nonetheless considers that such a widely framed contact-chaining power is necessary, then this must be subject to procedural controls and strong oversight.

17. As regards searches of content data, there are particular privacy implications when a decision is being considered to use a selector which is attributable to a natural person (e.g. his or her name, nickname, email address, physical address etc.). Strengthened justification requirements and procedural safeguards should apply, such as the involvement of a privacy advocate. The safeguard is also relevant as regards subsequent decisions to transfer intelligence obtained by strategic surveillance to internal security agencies, to law enforcement or to foreign services.

18. Interception of privileged communications by means of signals intelligence is particularly problematic as is use of signals intelligence against journalists in order to identify their sources. Methods must be devised to provide lawyers and other privileged communicants and journalists with some form of protection, such as requiring a high, or very high, threshold before approving signals intelligence operations against them, combined with procedural safeguards and strong external oversight.

19. The safeguard of setting out time limits is not as meaningful for strategic surveillance as it is for ordinary surveillance. Periods of surveillance tend to be long, and continually renewed. Retention periods also tend to be long: data originally thought to be irrelevant may, as a result of new data, come to be seen as relevant. Provision could be made for a requirement to make periodic internal reviews of the (continued) need to retain the data. To be meaningful, such a duty must be backed up by external oversight.

20. Two very significant stages in the signals intelligence process where safeguards must apply are the authorization and follow-up (oversight) processes. That the latter must be performed by an independent, external body is clear from the ECtHR’s case law. The question which arises here is whether even the authorization process should be independent.

21. Internal and governmental controls as part of overall accountability systems. For a number of reasons, It has been particularly tempting to rely primarily on internal controls in the area of strategic surveillance, but they are insufficient. Generally speaking, external oversight over signals intelligence needs to be strengthened considerably.

22. Parliamentary accountability.
There are a number of reasons why parliamentary supervision of strategic surveillance is problematic. First, the technical sophistication of signals intelligence makes it difficult for parliamentarians to supervise without the aid of technical experts. Second, the general problem of parliamentarians finding sufficient time for oversight along with all their other duties is particularly acute as regards strategic surveillance, where for controlling the dynamic process of refining the selectors (as opposed to a post-hoc scrutiny), some form of standing body is necessary. Thirdly, the high degree of network cooperation between certain signals intelligence agencies means an added reluctance to admit in parliamentary oversight, which can thus affect not simply one’s own agencies, but also those of one’s allies. In some states the doctrine of parliamentary privilege means that parliamentary committees cannot be security-screened, adding to an already-existing fear of leaks. The other, crucial, factor is that strategic surveillance involves an interference with individual rights. Supervision of such measures has traditionally been a matter for the judiciary. The constitutional principle of separation of powers can make it problematic for a parliamentary body to play such a quasi-judicial role.

23. A decision to use particular selectors, resembles, at least in some ways, a decision to authorize targeted surveillance. As such, it can be taken by a judicial body. As the decision involves considerable policy elements, knowledge of intelligence techniques and foreign policy are also desirable. Finding a group of people who combine all three types of competence is not easy, even for a large state. Thus, it is easier to create a hybrid body of judges and other experts. As regards follow-up (oversight) it is necessary to oversee decisions made by automated systems for deleting irrelevant data, as well as decisions by human analysts to keep the personal information collected, and to transfer it to other domestic and foreign agencies. This type of oversight is of a “data protection” character, most suitably assigned to an independent, expert administrative body. Neither of these types of decision is “political” in nature. What, by contrast, is more “political” is the prior decision taken, that somebody, or something, is of sufficient importance to national security to need intelligence about. This is the type of decision which would benefit from a (closed) discussion in a political body, where different spectrums of opinion are represented. Another type of policy-oriented issue is deciding the general rules regarding who, and under what circumstances, signals intelligence can be exchanged with other signals intelligence organisations. A third is making a general evaluation of the overall effectiveness and efficacy of signals intelligence measures. A fourth role for a political body is to engage in a continuous dialogue with whatever expert oversight body is established.

24. Judicial authorization.
A system of authorization needs to be complemented by some form of follow-up control that conditions are being complied with. This is necessary both because the process of refining selectors is dynamic and highly technical and because judges do not tend to see the results of the signals intelligence operations as these seldom lead to prosecutions. Thus the safeguards applying to a subsequent criminal trial do not become applicable.

25. Accountability to expert bodies.
The boundary line between parliamentary, judicial, and expert bodies is not hard and fast; in some states, oversight bodies are a mixture of the three. Expert bodies have a particular role to play in ensuring that signals intelligence agencies comply with high standards of data protection.

26. Complaints mechanisms.
Under the ECHR, a state must provide an individual with an effective remedy for an alleged violation of his or her rights. Notification that one has been subject to strategic surveillance is not an absolute requirement of Article 8 ECHR. If a state has a general complaints procedure to an independent oversight body, this can compensate for non-notification. There are certain requirements before a remedy can be seen as effective.

27. Concluding remarks.
States should not be content with the minimum standards of the ECHR. Signals intelligence has a very large potential for infringing the right to private life and other human rights. It can be regulated in a lax fashion, meaning that large numbers of people are caught up in a trawl and intelligence on them is retained, or relatively tightly, meaning that the actual infringement with private life and other human rights is kept down. The Swedish and German models have definite advantages over the other models studied from this perspective. In any event it is necessary to regulate the main elements in statute form and to provide for strong mechanisms of oversight. The national legislature must be given a proper opportunity to understand the area and draw the necessary balances.

Will the Syrian crisis (at least!) trigger a true EU “common” migration policy ?

by Isabella MERCONE (FREE Group Trainee)

The ‘Syrian refugee crisis’ or ‘Syrian humanitarian crisis’, originated by a civil war in 2011, has been going on for more than 4 years now, causing millions of people in need of protection to flee from Syria to neighbouring countries (Jordan, Lebanon, Turkey, Iraq, Egypt), in seek of safety. Moreover, the situation has aggravated in the last year, after the establishment of the ISIS State between Syria and Iraq. [1] Due to its gravity, the issue is at the moment in the spotlight of media and public opinion. Concerns about the issue has already been expressed by all European institutions.[2]

THE EUROPEAN PARLIAMENT

Notably, in a resolution adopted already in the last legislature ( October 2013), the European Parliament was already calling for ‘safe entry and fair asylum procedures’, ‘temporary admission to the EU’, and resettlement as ‘an essential tool to address acute needs’, reiterating the ‘need for more solidarity with member states facing particular pressure to receive refugees.’
Moreover, the resolution encouraged EU countries ‘to make full use of money to be made available from the Asylum and Migration Fund and the Preparatory Action to “Enable the resettlement of refugees during emergency situations”.

THE EUROPEAN COMMISSION

In a recent decision , the European Commission has underlined the importance of ‘sharing responsibility between Member States and strengthening cooperation with third countries’, and suggested that the Union Actions should ‘focus on EU-wide measures promoting the consolidation of the CEAS, including its possible deepening, promotion of resettlement and transfer, and capacity building and strengthening of asylum systems of third countries’.
However, in fact not much has been so far put in practice by EU institutions to respond to Syrian refugee crisis, especially in respect with the support to third countries most affected by the flow. Nowadays, with 3,9 million Syrians refugees displaced among Turkey, Lebanon, Jordan, Iraq and Egypt[3], the European Union has to take action and adopt a real common EU approach to respond to Syrian refugee crisis. In order to do so, it needs:

  • A regulation that establishes a strengthened common asylum and migration system;
  • Adequate funding to implement such common actions to respond to the emergency.

The “Asylum, Migration and Integration Fund” (AMIF)

The AMIF (Asylum, Migration and Integration Fund) is the EU Funding Programme concerning asylum and migration for the period 2014-2020. It was established with Regulation (EU) No 516/2014[4]. With a total budget of EUR 3.137 billion for the whole period (2014-2020), it is aimed at ‘promoting the efficient management of migration flows’ and at the ‘implementation, strenghtening and development of a common EU approach to asylum and migration’.[5] It replaces the three separate funding programmes created for the period 2007-2013 (ERF, European Refugee Fund; EIF, European Fund for the Integration of third-country nationals; RF, European Return Fund), in the attempt to create a common financial framework for EU asylum, immigration and external border control policies.

Should art. 80 on solidarity complement the legal basis ?

EU Member States cooperation in the policy area of migration and asylum has been developing in the last twenty years, starting from the Schengen intergovernmental cooperation paving the way to the suppression of internal border controls. The 1999 Amsterdam Treaty embodied the former intergovernamental Schengen cooperation by splitting it in a new title of the Treaty establishing the European Community (TEC) dedicated to “visas, asylum, immigration and other policies related to free movement of persons” and by dealing with security related policies in the so called “third pillar” (police and judicial cooperation in crimial matters). 

Ten years later the Lisbon Treaty has progressively overcome this dual regime by  merging all these policies in the Title V TFEU (Treaty on the Functioning of the EU), which deals with freedom, security and justice, and which explicitly calls for the adoption of a common policy on asylum, immigration and external borders, based on solidarity between EU countries and fairness to non-EU nationals (article 67(2)TFEU). In particular, article 80 TFEU (Principle of solidarity) specifically states that, in the implementation of this EU policy on migration and asylum, Member States should respect the principle of “solidarity and fair sharing of responsibility”, ‘including its financial implications’.  With the entry into force of the Lisbon Treaty, entered into force also the EU Charter of Fundamental Rights whose articles 18 and 19 strengthen the right of asylum (also covered by art. 78 TFEU) and the principle of non-refoulement [6] at level of  EU primary law. This has been the basic legal framework in which the European Parliament and the Council adopted the Regulation (EU) 516/2014[7], establishing the Asylum, Migration and Integration Fund (AMIF).[8] However it is worth noting that Regulation formal legal basis  are articles 78(2) and 79(2) and (4) TFEU but the Council of  European Union did’nt accept the EP proposal to add also article 80 TFEU as complementary legal basis.  This divergence of view between the three institutions is clearly stressed in the declarations adopted at the time of the EP vote [9] In fact, the EP had advocated for the explicit inclusion of article 80 TFEU in the legal basis of the regulation, but finally surrendered to national parliaments will and adopted the final text without any reference to this article, in order to allow the Fund to start functioning.
Finally, concerning States that are allowed to opt-out in Title V related issues, all EU Member States, with the exception of Denmark, are part in the AMIF.

AMIF GENERAL AND SPECIFIC OBJECTIVES Continue reading “Will the Syrian crisis (at least!) trigger a true EU “common” migration policy ?”

The Commission’s power of initiative: the CJEU sets important constraints

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 
(On this blog on the same subject see HERE)

by Steve PEERS

As every EU politics or law student learns, a key feature of the Commission’s role as the ‘motor’ of EU integration is its near-monopoly on making proposals for EU action. But does that near-monopoly – which the Commission likes to call its ‘right of initiative’ – imply a corresponding power to withdraw proposals? And if so, are there any constraints on such a power? The CJEU answered these questions in an important judgment today.

Background

The case concerned a proposal for framework legislation on ‘macro-financial assistance’ for non-EU countries. This type of assistance helps out non-EU countries which are in severe economic difficulties, for instance helping them to make an imminent loan payment. It obviously helps the economies of the countries concerned, thus indirectly helping EU companies that export to them; and it undoubtedly cements the political relationship between the EU and those countries.

Before the Treaty of Lisbon, such aid was granted on the basis of the EU’s ‘residual powers’, which are now provided for in Article 352 TFEU. However, that Treaty created a specific ‘legal base’ for the EU to adopt rules on macro-economic support for third states: Article 212 TFEU, which provides for the use of the ‘ordinary legislative procedure’ to adopt legislation on this. The Treaty of Lisbon also created an Article 213 TFEU, which allows assistance to be granted in urgent cases without going through a full legislative process.

In 2011, the Commission proposed ‘framework legislation’ on macro-financial assistance, which would have given it the power to decide on the crucial question of which third countries receive this money. The Commission’s decisions on this issue would be controlled by means of the variant of the ‘comitology’ rules known as the ‘examination procedure’, which gives Member States’ experts’ the power to block draft Commission decisions. There’s no significant role for the European Parliament (EP) in that process.

The Commission’s suggestions did not satisfy the EP or the Council. The EP suggested instead that Commission Decisions on which countries receive macro-financial help be subject to ‘delegated acts’: Commission decisions which can be blocked by either the Council or the EP. For its part, the Council position was that each decision to grant aid to a third country had to be subject to the ordinary legislative procedure. The two institutions began negotiations, and eventually agreed to use the ordinary legislative procedure to this end.

Since the Commission objected to this aspect of the EP/Council deal in principle, it withdrew its proposal before the institutions could adopt the legislation concerned. The Council responded by taking the rare step of suing the Commission. While the Council was supported by ten Member States, the EP did not intervene on either side – despite the huge stakes for that institution.

The judgment

The Court’s judgment started out by accepting that the Commission’s power to make proposals gives it a corollary power to withdraw them. However, that power did not constitute a ‘right of veto’ in the legislative process, since that would upset the principle of institutional balance and conferral of powers. In short, the Commission has the power to withdraw proposals – but that power is constrained.

So how exactly is that power constrained?  The Court ruled that the Commission had to give the EP and the Council its reasons for such withdrawals, which must include ‘cogent evidence or arguments’. Such withdrawal decisions must be subject to judicial review, in the form of actions for annulment. However, it was sufficient to give those reasons to a Council working party and an EP/Council negotiation meeting.

As for the substantive grounds for withdrawing its proposal, the CJEU ruled that the amendment which the EP and Council wanted would have changed an ‘essential element’ of the proposal, and would have been irreconcilable with the ‘objective’ of improving the efficiency of EU policy in this area. Next, the CJEU ruled that there was no infringement of the principle of democracy, since it was inherent in the Commission’s right of initiative that it could withdraw proposals as long as the Council had not yet acted. So the Commission did not infringe the principles of conferral of powers and institutional balance.

Finally, the Court considered a separate issue: whether the manner of the Commission withdrawing its proposal breached the principle of ‘sincere cooperation’ between the EU institutions. On this point, the Court ruled that the Commission could not be criticized for withdrawing its proposal at a very late stage in the Council/EP negotiations, since only then had it become clear that the co-legislators would insist that the ordinary legislative procedure had to be used for the approval of each new macro-financial assistance decision. Moreover, the Commission had attempted to reconcile the position of the other institutions, and had proposed compromises. It seems implicit from the Court’s analysis here that the EP’s position (delegated acts instead of a comitology process) would nothave altered the essential elements of the proposal.

Comments Continue reading “The Commission’s power of initiative: the CJEU sets important constraints”

La Convention européenne des droits de l’Homme à l’Assemblée nationale : quand le ridicule ne tue pas

ORIGINAL PUBLISHED HERE

9 AVRIL 2015
par Henri Labayle, CDRE

Une fois encore, une partie de la classe politique française a su se mettre à la hauteur des enjeux : dans sa participation à la défense des valeurs de la République, au lendemain des attentats terroristes de Paris, rien ne lui est apparu plus légitime qu’une violente charge contre la Convention européenne des droits de l’Homme.

Ainsi, une proposition de résolution de l’Assemblée nationale, déposée le 12 février 2015 (AN n° 2061), invite le Gouvernement rien moins qu’à « renégocier les conditions de saisine et les compétences de la Cour européenne des droits de l’Homme (CEDH) sur les questions touchant notamment à la sécurité nationale et à la lutte contre le terrorisme ».

Son rejet est anecdotique, si son inscription ne l’est pas tout à fait. On en sourirait même, si les signataires du texte ne comptaient pas parmi eux, entre autres, deux anciens secrétaires d’Etat en charge des affaires européennes, un professeur agrégé des facultés de droit et nombre d’avocats attestant finalement que les passerelles que les élus se sont ouvertes vers cette profession sont une bien mauvaise nouvelle pour la justice. Ailleurs, on s’étonnerait de voir des auxiliaires de justice se faire les chantres de l’exclusion du juge. Ici, au Palais Bourbon, pas vraiment … La lecture du compte-rendu de la séance du 2 avril 2015 est, à cet égard, atterrante quand bien même d’autres professionnels du droit, avocats eux aussi, ont su appeler à la raison avec talent et dans le même temps.

Ces manifestations urticantes ne sont pas nouvelles mais, dans le contexte ambiant, il peut être instructif d’aller au delà du jeu politicien en s’interrogeant sur la crédibilité de la mise en cause du juge de Strasbourg. Comment se réclamer des valeurs de la démocratie tout en proposant la mise à l’écart de l’une de ses principales expressions, le droit à la protection juridictionnelle ?

Inutile de prendre plaisir au jeu de l’arroseur arrosé. Celui-ci verra, en pleine séance, l’initiateur de la dite résolution être cité par ses contradicteurs pour ses propos louangeurs à l’égard de la Cour européenne … lorsqu’il était secrétaire d’Etat en charge des affaires européennes. On en restera à deux critiques principales portées par les signataires de la proposition : l’une relative à l’activisme de la Cour européenne, l’autre visant à interdire l’usage du recours individuel aux terroristes.

1. De l’activisme de la Cour européenne des droits de l’Homme

Continue reading “La Convention européenne des droits de l’Homme à l’Assemblée nationale : quand le ridicule ne tue pas”