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

THE UPS AND DOWNS OF DUAL CITIZENSHIP – THE CJEU ON DUAL TURKISH/EU CITIZENS AND SOCIAL RIGHTS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

By Professors : ELSPETH GUILD, (QUEEN MARY UNIVERSITY OF LONDON), KEES GROENENDIJK, (RADBOUD UNIVERSITY) AND STEVE PEERS, (UNIVERSITY OF ESSEX)

In recent years, an increasing number of Turkish citizens residing in the EU have become dual citizens of Turkey and an EU Member State. Like other dual citizens of a Member State and a non-Member State, they can invoke EU free movement law to move and reside in another Member State (see the CJEU’s Micheletti judgment). But as a general rule, EU free movement law will not confer rights in their home Member State. So in that case, can they still rely upon their Turkish citizenship to claim rights under the EU/Turkey association agreement?

Back in 2012, in its judgment in Kahveci and Inan, the CJEU determined that dual Turkish/Dutch nationals were entitled to rely on their Turkish citizenship to enjoy the benefits of the EU/Turkey association agreement as regards family reunification and thus escape the stricter national legislation for own nationals’ family members. So until the recent decision earlier this month in Demirci, it looked as if Turkish citizens with a second passport from a Member State were more or less free to choose which one to rely on in order to benefit from EU law. But the Demirci judgment changes the rules slightly and provides a more elaborated legal reasoning to when dual nationals of Turkey and a Member State may use one or other of their citizenship.

The finding is rather ominous so we will start some background on the facts of the case and conclude with a rather optimistic analysis where we conclude that dual nationality is still a strong source of rights in EU law and that this judgment is perhaps the exception.

The Facts:

Mr Demirci and his fellow applicants are all former Turkish workers who had worked in the Netherlands for many years fulfilling the conditions of the secondary legislation of the EU/Turkey Association Agreement, Decision 1/80 of the EU/Turkey Association Council, which regulates aspects of the immigration status of Turkish workers and their family members. They had all naturalised as Dutch nationals but kept their Turkish citizenship. They all became disabled and incapacitated for work and thus permanently left the labour force. They received a Dutch social benefit designed to provide income for the incapacitated. But this benefit is rather low so they applied for a top up benefit to bring their income closer to that of the minimum wage. They were all awarded the top up benefit.

Then a series of things happened. The men retired with their families to Turkey. The Dutch Government began to change the rules on the top up benefit to exclude anyone not resident in the Netherlands (or the EU). Mr Demirci and his colleagues first had their top up benefit reduced then it was cut off altogether on the basis that they no longer lived in the Netherlands (or EU). They appealed, relying on their Turkish nationality, on the basis that this treatment was contrary to the EU/Turkey Association Agreement measure on social security – Association Council Decision 3/80. The argument went that the Dutch authorities may be able to cut off the top up benefit to their own nationals living outside the EU as this is a matter wholly internal to one Member State. But they cannot cut off the top up benefit to Turkish nationals who have fulfilled the conditions as workers in a Member State under Decision 1/80 as this is a matter of EU law (which does not permit such an act – Article 6(1) of Decision 3/80 protects Turkish workers who retire to Turkey as regards receipt of social benefits). Several years ago, the CJEU ruled in Akdas that such rules infringed Decision 3/80 as regards Turkish nationals who returned to Turkey. But could a dual citizen of Turkey and a Member State rely on that judgment, as a Turkish citizen – or would he or she be prevented from doing so, as a national of that Member State?

The reasoning

The CJEU bluntly tells Mr Demirci and his colleagues that they cannot rely on Decision 3/80 to object to the residence requirement imposed by the Dutch authorities (para 52). This is because, according to the Court, the objectives of the Decision and the EU/Turkey regime is to ensure the progressive integration of Turkish workers into the territory of the host Member State. The social security provisions consolidate that objective.

The Court provides two main reasons for this position. First, because Mr Demirci and his colleagues had acquired Dutch nationality they are in a particular situation as regards the Agreement. Citizenship is ‘the most accomplished level of integration’ of a person into the host state (para 54). This new citizenship means that the former Turkish worker can now enter and reside freely in the Netherlands or indeed any other EU Member State where he or she might wish to go. Conversely, in Kahveci & Inan the Court did not accept the argument of the Dutch government that naturalisation is the pinnacle of integration. In that case AG Sharpston argued that naturalisation may be an indication that an immigrant is on his path to integration, but that is not the same as saying that he has become completely integrated. .

But as Turkish nationals, Mr Demirci and his friends could only live in Turkey or their host Member State (the Netherlands) and so they have no free movement rights. Further as such, they only benefit from certain rights in the host Member State. So, says the Court, for the purposes of paying them a benefit, it is reasonable for the national authorities to make this subject to the same rules as apply to all other Dutch nationals (para 57).

Secondly, dual Turkish/Dutch nationals would be placed in a better position than other EU citizens if they were allowed to have the top up benefit even though they did not fulfil the residential requirement (para 58). The right to export to Turkey social benefits in Decision 3/80, according to the Court, is a sort of compensation for the fact that Turkish nationals will no longer be able to return to and live in the host Member State. As the CJEU held inBozkurt, a Turkish national ceases to be a protected person under Decision 1/80 if he or she becomes totally and permanently incapacitated for work (para 64). So there is a justification for applying different rules to those who are exclusively Turkish nationals as they have a much less secure residence status in the host Member State and no free movement rights in EU law. They therefore need the extra protection of the export right. For dual Turkish/Dutch nationals, they can always move back to the EU and fulfil the residential requirements for the top up benefit (even if they would rather not) (para 65).

 Distinguishing Kahveci & Inan

As mentioned above, this judgment takes a different approach from the CJEU’s own jurisprudence in Kahveci & Inan where it held that dual Turkish/Dutch nationals were allowed to rely on their Turkish nationality for the purposes of the EU/Turkey family reunification rules, in order to benefit from the expulsion of Turkish workers’ family members, which are more favourable than the rules applying to the expulsion of the family members of Dutch citizens in the Netherlands. However, the CJEU is anxious to protect its ruling in Kahveci and goes to some lengths to explain why the finding in Kahveci is consistent with that which they were giving in Demirci (para 66). The argument goes like this. Family reunification enhances integration, for Turkish workers who are already legally integrated into the host Member State. Article 7 of Decision 1/80 deepens the last integration of a Turkish worker by granting to that worker’s family members, after three years residence, access to the labour force (para 67). So, acquisition of national citizenship could not be used as a reason to deprive the worker of the benefit of family reunification in Decision 1/80 (para 68). By contrast with the facts in Demirci, the family’s integration would be hindered if it was denied on the basis of dual citizenship. Further in Kahveci the person was seeking to benefit family members who are also Turkish nationals (para 70). Presumably this reasoning means that dual Turkish/EU citizens can also invoke the ‘standstill’ clause in the EU/Turkey association agreement, as interpreted last year in the CJEU’s Dogan judgment (discussed here), to avoid stricter rules for family reunion that apply to a Member State’s own nationals.

But in the case of Mr Demirci he can always go back to the Netherlands (or the EU) to satisfy the residential requirement to get the top up (para 69). Further all he and his colleagues wanted was a top up benefit for themselves (para 71). Finally, the CJEU considered that if Mr Demirci could rely on Decision 1/80 to have the top up benefit while not fulfilling the residential requirement, this would put them in a better situation than that of other citizens of the Union (and thus contravene Article 59 of the Additional Protocol to the EU/Turkey association agreement, which rules out Turkish citizens being better off than EU citizens).

The Court’s approach seems to be that there is something inherently wrong about letting Mr Demirci and his colleagues have their cake and eat it too. The arguments may not be the most compelling in the world but they show a clear judicial line. The CJEU will favour Turkish nationals living in the EU even if they have taken a second citizenship so long as this improves their long lasting integration. But they cannot rely on their Turkish citizenship after naturalization when what they seek is a financial benefit which is subject to a residential requirement for EU citizens (and which they do not fulfil because they have left the EU).

The Court appears to implicitly return somewhat to its reasoning in the Mesbah judgement of 1999, where it held that the Moroccan mother of a Belgian-Moroccan worker who was living with her son in Belgium could not rely on the clause prohibiting discrimination on grounds on nationality in the EEC-Morocco Association Agreement to claim a disablement allowance that under Belgian law was only granted to Belgian nationals. The Court inDemirci, however, does explicitly point to the difference with Kahveci & Inan: “[in] the present case, by contrast, the respondents in the main proceedings are relying on the provisions of Decision 1/80 on their own behalf and in their own interest” (para 70). The Court leaves the door open for the Turkish spouse of a Turkish/Dutch (ex-) worker to rely on Decision 3/80, because the spouse, not having Dutch nationality, would be unable to return to the Netherlands.

Conclusions

The most important thing to remember about the Demirci decision is that it does not undermine the Court’s judgment in favour of dual rights for dual citizens in Kahveci & Inan. Yes, Turkish nationals can rely on the EU/Turkey association agreement family reunion rules even after they have naturalized in their host Member State, provided they are allowed to have dual nationality (it isn’t yet clear if they could invoke the EU’s own family reunion Directive). But they cannot rely on their non-EU citizenship after they leave the EU to get around a national residential requirement for the export of a social benefit if such a requirement applies to nationals of the host Member State.

From bad to worse? On the Commission and the Council’s rule of law initiatives

ORIGINAL PUBLISHED ON EU LAW ANALYSIS
Monday, 19 January 2015

by Dimitry Kochenov* and Laurent Pech**
*Professor of EU Constitutional Law at the University of Groningen and Visiting Professor of Private Law at the Universita degli studi di Torino
**Jean Monnet Professor of EU Public Law, Head of the Law and Politics Department at Middlesex University London

The rule of law is one of the fundamental values on which the EU is founded according to Article 2 TEU. Faced with a rising number of ‘rule of law crises’ in a number of EU countries, the Commission adopted a new ‘pre-Article 7’ procedure last March in order to address any instance where there is a evidence of a systemic threat to the rule of law. Having criticised the Commission’s initiative primarily on the (unconvincing) ground that it would breach the principle of conferral which governs the allocation of powers between the EU and its Member States, the Council proposed its own solution: a rule of law dialogue between national governments and to be held once a year in Brussels.

Both initiatives, and in particular, the Council’s, appear grossly inadequate to tackle the problem of ‘rule of law backsliding post EU accession’ to quote Frans Timmermans, the First Vice-President of the Commission in charge inter alia of the Rule of Law.

Let us begin with the Commission’s proposal. The rationale underlying its new mechanism is that the current EU legal framework is ill designed when it comes to addressing internal, systemic threats to this principle and more generally, to EU values. The former President of the European Commission himself called in 2013 for a ‘better developed set of instruments’ that would fill the space that exists at present between the Commission’s infringement powers laid down in Articles 258–260 TFEU, and the so-called ‘nuclear option’ (suspension of a Member State’s EU membership) laid down in Article 7 TEU. Both procedures suffer indeed from a number of procedural and substantive shortcomings, with the consequence that Article 7 TEU has never been triggered whereas the Commission’s infringement powers have proved ineffective to remedy systemic violations of EU values.

Numerous proposals were made like prior to the publication of the Commission’s Communication last March. These proposals would appear however to have been were found too ‘radical’ for the Commission which decided instead to put forward an eminently ‘light touch’ mechanism (previous analysis by Steve Peers is available here). This new rule of law mechanism builds on and complements an already existing – albeit never used – procedure, the ‘nuclear option’ referred above and on the basis of which the Council may theoretically suspend certain EU rights of the ‘guilty’ Member State such as voting rights.

In a nutshell, the Commission’s new mechanism takes the form of an early-warning tool to enable the Commission to enter into a structured dialogue with the Member State concerned to prevent the escalation of systemic threats to the rule of law preceding the eventual triggering of Article 7 TEU. This ‘pre-Article 7’ mechanism does not exclude a parallel recourse to the infringement procedure.

In practice, the Commission’s new rule of law mechanism rests on three main stages:

(1) The Commission will first have to assess whether there are clear, preliminary indications of a systemic threat to the rule of law in a particular Member State and send a ‘rule of law opinion’ to the government of this Member State should it be of the opinion that there are;

(2) Commission’s recommendation: In a situation where no appropriate actions are taken, a ‘rule of law recommendation’ may be addressed to the authorities of this country, with the option of including specific indications on ways and measures to resolve the situation within a prescribed deadline;

(3) Finally, the Commission is supposed to monitor how the relevant Member State is implementing the recommendation mentioned above. Should there be no satisfactory implementation, the Commission would then have the possibility to trigger the application of Article 7 TEU.

The Commission’s new pre-Article 7 procedure is anything but revolutionary. In essence it merely requires any ‘suspected’ Member State to engage in a dialogue with no new automatic or direct legal consequences should the Member State fail to agree with any of the recommendations adopted by the Commission. Undoubtedly, Article 7(1) TEU already and necessarily implicitly empowers the Commission to investigate any potential risk of a serious breach of the EU’s values by giving it the competence to submit a reasoned proposal to the Council should the Commission be of the view that Article 7 TEU ought to be triggered on this basis. The criticism expressed by the Council’s Legal Service, which has criticised the Commission for overstepping its powers, would therefore appear particularly misplaced. The Commission’s framework is procedurally sound, no Treaty change is required and for the first time, a wide range of expert bodies is to be consulted: so far so good one may be tempted to say.

This bright picture however fades a great deal as soon as one focuses on the likely effectiveness of this new procedure, which is based on the presumption that a dialogue between the Commission and the Member State is bound to produce positive results. The validity of this presumption is highly questionable. Indeed, once we move towards really problematic cases, i.e. the countries where the ruling élite has made a conscious choice not to comply with EU values, engaging in a rule of law dialogue is unlikely to be fruitful. Worse still: the confidential nature of the whole discussion to be held between the Commission and the Member State under investigation will prevent a successful ‘name-and-shame’ environment from crystallising. The non-legally binding nature of the ‘rule of law recommendation’ to be addressed to the authorities of the country under scrutiny, and the non-automatic recourse to Article 7 TEU should the recalcitrant Member State fail to comply, further increase the likelihood of ineffective outcomes.

The Council’s negative response to the Commission’s proposal leaves one rather pessimistic about the chance of ever seeing the Commission activating its new rule of law framework. Indeed, rather then supporting the Commission’s rule of law framework, the Council decided instead to establish an annual rule of law dialogue to be based ‘on the principles of objectivity, non discrimination and equal treatment of all Member States’ and to be ‘conducted on a non partisan and evidence-based approach’. The Council’s response is as disappointing as it is unsurprising considering the reported unease of several national governments at the idea of letting any independent EU body looking into rule of law matters beyond the areas governed by EU law. The British government, for instance, has made clear its opposition to the Commission’s framework on three main grounds: It would be superfluous to the extent that the European Council and the Council of Europe would already monitor rule of law compliance within EU Member States; it would undermine the role of the Member States within the Council of the EU and finally, that the Commission and the Council would have already been successful through informal dialogue and lobbying in addressing in recent concerns on the rule of law in Member States.

Suffice it to refer to recent events in Hungary to understand that this last point is rather ludicrous. The point about the possible duplication of existing mechanisms is similarly unconvincing. To put it concisely, if multiple bodies gather data and monitor some specific aspects of EU Member States practice in relation to the rule of law, democracy and human rights, no European body currently subjects EU countries to a specific, country-based and permanent monitoring and assessment of their adherence to the rule of law broadly understood (for an overview of existing monitoring mechanisms within the Council of Europe, the EU and the UN, see this very useful report from the Bingham Centre for the Rule of Law). For instance, the Council of Europe’s Venice Commission, whose work is unanimously praised, is primarily a consultative body. In the end, the criticism directed at the Commission’s proposal essentially stems from the reluctance of some national governments, especially those whose rule of law records are highly questionable, to accept any potential effective form of supranational monitoring which could result in the adoption of legally binding recommendations and/or sanctions.

Viewed in this light, it is hardly surprising that while the Commission’s proposal suffers from many a flaw, the Council’s response goes nowhere near enough what is required to address current challenges. The latest buzzwords are used to hide an unwillingness to meaningfully act. For instance, the Council calls for an evidence-based approach but what will this mean in practice and who will in charge of collecting this evidence and analysing it? Similarly, the dialogue is supposed to take place in the Council ‘following an inclusive approach’, the substance of which is nowhere explained. More fundamentally, the Council is seeking to use a soft instrument, which has regularly been criticised precisely for its ineffectiveness when used by the EU to promote its values abroad. To put it concisely, the EU has set up close to forty ‘human rights dialogues’ with third countries but evidence of substantial and concrete achievements is thin on the ground. One would have hoped a different, stricter approach for any Member State whose authorities have made a conscious political choice of undermining EU values.

To conclude, the Commission and the Council’s initiatives may leave one deeply disappointed considering the serious nature of the internal challenges faced on the rule of law front. When comparing the two initiatives, one may however argue that the Commission’s is much less half-hearted and, thus, at least less counter-productive, than the Council’s, which does not simply represent the triumph of empty rhetoric over genuine action but also unfortunately undermines the future legitimacy of any Commission attempt to trigger its new pre-Article 7 procedure. For a more detailed analysis, we would refer interested readers to our forthcoming Schuman Foundation policy paper, which is due to be published this spring in both English and French.

A Tale of Two States: Rule of Law in the Age of Terrorism

ORIGINAL PUBLISHED ON VERFASSUNGSblog

by Giovanna DE MINICO

As a reaction to the recent terrorist attacks in France, several EU member states as well as the EU itself have announced significant anti-terrorism measures.

Even well before the French facts, the UK proposed to isolate suspected terrorists, withdrawing and confiscating their passports to prevent them from entering and leaving the country. This is in line with the aggressive policies of both theRegulation of Investigatory Powers Act 2000 and of the Anti-terrorism, Crime and Security Act 2001.

France, while rhethorically distancing itself from the American Patriot Act, seems to do substantially the same, as President François Hollande announced that he wants to close the online websites suspected of fomenting terrorism. Not even the United States has adopted a measure of such gravity, suffocating the freedom of speech and thought. The US may be responsible for the distant and pervasive control of our private life but it still insists on an open market place of ideas as an undefeatable antidote against the violence spreading germs.

Germany has announced, together with the suspension of the ID card, based on the English model, other measures aimed to reinforce the dialogue between police and intelligence, upholding a demand for cooperation raised by multiple European voices.

The European Union seems to have set definitely aside the very strong querellebetween privacy and security with regard to the subject-matter of PNR, i.e. the personal number record of passengers. This is an ID of single passengers which put together miscellaneous data of various nature, from the personal data to the information about how they paid, what they have eaten, which newspaper they have asked for on board or incidentally their sanitary requirements. Clearly, these data, if properly cross-examined, could be very useful to find out their political or religious thoughts.

The duty to collect this new mountain of data would be imposed on the air carriers for a number of years (yet to be defined precisely). What is even more incompatible with the rule of law is the fact that such measure applies to passengers regardless of their inclusion in a suspects’ list. This issue is not new to the European Union. Actually, it dates back to a Directive proposal of 2011, which was rejected by theLibe Commission in 2013 for infringing the right to privacy and has been brought up again by the European Council in August 2014. These days, it seems to be back in the agenda of the European Parliament after the meeting of the interior Ministers recently held in Place Beavau. The debated issue now is focused only on the number of years of the data keeping, because the resistance of privacy supporters, which fired up the debate at the Libe Commission, seems now to have been set aside in the name of security.

Let’s ask ourselves if this mass recording is necessarly for prevention reasons. My opinion is that the demand for public security is not sufficient to justify such action; in fact, keeping this massive amount of information, applying indiscriminately to all the passengers, makes the investigations slow, ill-timed and, often, inutiliter data.Prevention measures, due to their anticipatory character, must be very timely and focused on well selected targets, otherwise they risk to be only effective when an event has already occurred.

The well known criticism related to privacy violations, disproportionate control, lack of protection against discrimination, departure from the constitutional presumption of innocence, remain standing. Furthermore, the objection of the ineffectiveness of the remedy to fullfill the security aims, already raised towards the NSA’s acquisition of the online metadata, could apply also to the PNR.

State of Terror vs. State of Law

After having highlighted the ongoing legal framework, let’s focus on the “State of Terror” on the one side, and the “State of Law” on the other: what they want and how they intend to achieve it.

a) The State of Terror wants to spread chilling fear and make people feel alone and without protection by the State of Law. In this situation of weakness, citizens are ready to surrender their freedom in return to the promise of security, which however no Government could ever completely ensure. To sum up, terrorism has proven to have well understood the lesson of divide et impera.

b) The State of Law should respond by educating its community to the values of legality, tolerance and solidarity. Its duty, in times of fear, is an ethical rather than a police one; it has to make the people leave their isolation and facilitate their social and political inclusion. This action requires concrete actions by political decision-makers.

To the fear, which is the first result of terrorism, the State has to respond with the wisdom of a legislator, which should not act under the pressure of understandable emotional feelings. Any measures have to comply with the principles ofproportionality and precaution, otherwise not only they risk to be erased by the European or national Supreme Courts but they will prove to be meaningless. The recent episodes are evidence that all-encompassing controls such as the online data collection of the real and virtual movements of terrorists have not been able to prevent their criminal actions: controlling everyone is equal to controlling no one.

In a long-time perspective, the European Parliament should make use of its competence from article 83 TFUE to give, along with the Council, a common definition of the crime of terrorism and enact serious, quick and effective measures. This is permitted by article 83; and it is very much to be regretted that this competence conferred on the European Parliament has not been exercised so far.

Last but not least, the State of Law should take cultural action aiming to include heterogeneous people while respecting their diversities. By contrast, the melting-pot method followed so far, that tried to uniform the different ideologies, failed because of the lack of a common values.

The State of Law has not to use the usual categories of the prevalence of Right over Wrong, West over Islam; it should rather develop the cohabitation of the opposites by sharing what we Europeans are still denying to the foreign people: social rights. A State of Law, which shows itself severe in the rules but generous in the co-division of welfare, will be able to compete with the State of Terror. The latter recruits its followers among the desperates, those who feel to be abandoned by the hosting State.

In the light of the above foreigners could choose between a proposal of violence and isolation, made by the State of Terror, and one of cohabitation and solidarity, made by a new European State of Law.

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Zitiervorschlag: De Minico, Giovanna: A Tale of Two States: Rule of Law in the Age of Terrorism, VerfBlog, 2015/1/24, http://www.verfassungsblog.de/tale-two-states-rule-law-age-terrorism/
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D. KORFF : The rule of law on the Internet and in the wider digital world

NB This is the executive summary of an issue paper prepared by Professor Douwe Korff, Visiting Fellow, Yale University (Information Society Project), and Oxford Martin Associate, Oxford Martin School, University of Oxford, UK for the Council of Europe Commissioner for fundamental rights. (Douwe Korff is also member of FREE Group) 

FULL DOCUMENT ACCESSIBLE HERE

Executive summary

This issue paper addresses a pressing question: how can we ensure that the rule of law is established and maintained on the Internet and in the wider digital world? Section 1 describes the range of online activities and the threats to this environment; section 2 discusses the emerging “Internet governance” principles, and notes the special control exercised over the digital world by the USA (and the UK, in respect of Europe), which could lead to fragmentation of the Internet in response. Section 3 sketches the international standards of the rule of law, and some problems in the application of law in this new environment. Section 4 looks in some more detail at the main issues emerging from the earlier sections – freedom of expression, privatised law enforcement, data protection, cybercrime and national security – and discusses the delicate balances that need to be struck. The Council of Europe Commissioner for Human Rights has formulated a number of recommendations on the basis of the issues raised by this issue paper; these are set out after this executive summary.

A new environment for human activities

We live in a global digital environment that has created new means for local, regional and global activities, including new types of political activism, cultural exchanges and the exercise of human rights. These activities are not virtual in the sense of “not truly real”. On the contrary, they are an essential part of real citizens’ lives. Restrictions on access to the Internet and digital media, and attempts to monitor our online activities or e-communications, interfere with our fundamental rights to freedom of expression and information, freedom of association, privacy and private life (and possibly other rights such as freedom of religion and belief, or the right to a fair trial).

The new global digital environment of course also creates a new space for unlawful behaviour: for the dissemination of hate speech or child pornography, incitement to violence, breaches of copyright (“piracy”), fraud, identity theft, money laundering and attacks on the e-communications infrastructure itself through malware (such as Trojans and worms) or “denial of service” attacks. Cybercrime and cybersecurity have become major concerns. These threats are increasingly transnational, and there is a broad international consensus on the need to deal with cybercrime, cybersecurity and terrorism, but there is much less agreement on specifics – or even what constitutes a threat.

Four issues stand out. First, state actions aiming to counter cybercrime, threats to cybersecurity and threats to national security are increasingly intertwined; the boundaries between such activities are blurred, and the institutions and agencies dealing with them work more closely together. Second, states are now co-ordinating their actions in all these regards. Third, the work of national security and intelligence agencies increasingly depends on monitoring the activities of individuals and groups in the digital environment. Fourth, instead of ex post facto law enforcement, the emphasis is now on intelligence and prevention, with law-enforcement agencies using techniques – and technologies – previously reserved for secret services.

The nature of the digital environment Dangerous data

In an age of “Big Data” (when data on our actions are shared and/or exploited in aggregate form) and the “Internet of Things” (when more and more physical objects – things – are communicating over the Internet), it is becoming difficult to ensure true anonymisation: the more data are available, the easier it becomes to identify a person. Moreover, the mining of Big Data, in ever more sophisticated ways, leads to the creation of profiles. Although these profiles are used to spot rare phenomena (e.g. to find a terrorist in a large set of data, such as airlines’ passenger name records), they are unreliable and can unwittingly lead to discrimination on grounds of race, gender, religion or nationality. These profiles are constituted in such complex ways that the decisions based on them can be effectively unchallengeable: even those implementing the decisions do not fully comprehend the underlying reasoning. The digital environment can by its very nature erode privacy and other fundamental rights, and undermine accountable decision making. There is enormous potential for undermining the rule of law – by weakening or destroying privacy rights, restricting freedom of communication or freedom of association – and for arbitrary interference.

Global and private, but not in the sky

Because of the open nature of the Internet (which is its greatest strength), any end point on the network can communicate with virtually any other end point, following whatever route is calculated as being most efficient, the data flowing through all sorts of switches, routers and cables: the Internet’s physical infrastructure. The electronic communications system is transnational, indeed global, by its very nature; and its infrastructure is physical and located in real places, in spite of talk of a Cloud. At the moment, many of these physical components are in the USA and many of them are managed and controlled by private entities, not by governmental ones.

The main infrastructure for the Internet consists of high-capacity fibre-optic cables running under the world’s oceans and seas, and associated land-based cables and routers. The most important cables for Europe are those that run from continental Europe to the UK, and from there under the Atlantic to the USA. Given the dominance of the Internet and of the Cloud by US companies, these cables carry a large proportion of all Internet traffic and Internet-based communication data, including almost all data to and from Europe.

Who is in control? Internet governance

Important Internet governance principles have been put forward, by the Council of Europe and others, that stress the need to apply public international law and international human rights law equally online and offline, and to respect the rule of law and democracy on the Internet. These principles recognise and promote the multiple stakeholders in Internet governance and urge all public and private actors to uphold human rights in all their operations and activities, including the design of new technologies, services and applications. And they call on states to respect the sovereignty of other nations, and to refrain from actions that would harm persons or entities outside their territorial jurisdiction.

However, these principles still remain largely declaratory and aspirational: there is still a deficiency in actual Internet governance arrangements that can be relied on to ensure the application of these principles in practice. Also, Internet governance must take account of the fact that – partly because of its corporate dominance, and partly because of historical arrangements – the USA has more control over the Internet than any other state (or even all other states combined). Together with its close partner, the UK, it has access to most of the Internet infrastructure.

The former US National Security Agency contractor Edward Snowden has revealed that the USA and the UK are using this control and access to conduct mass surveillance of the Internet and of global electronic communications systems and social networks. There are fears that states may respond to the Snowden revelations by fragmentation of the Internet, with countries or regions insisting that their data are routed solely through local routers and cables, and stored in local clouds. This risks destroying the Internet as we know it, by creating national barriers to a global network. Unless the USA improves compliance with international human rights standards in its activities that affect the Internet and global communication systems, the movement towards such a truncated Internet will be difficult to stop.

Private-sector control

Much of the infrastructure of the Internet and the wider digital environment is in the hands of private entities, many of them US corporations. This is problematic because companies are not directly bound by international human rights law – that directly applies only to states and governments – and it is more difficult to obtain redress against such companies.

In addition, private entities are subject to the national laws of the countries where they are established or active – and those laws do not always conform to international law or international human rights standards: they may impose restrictions on activities on the Internet (typically, on freedom of expression) that violate international human rights law; or they may impose or allow interference, such as surveillance of Internet activity or e-communications, that is contrary to international human rights law; and such actions may be applied extraterritorially, in violation of the sovereignty of other states.

The application of national law to the activities of private entities controlling (significant parts of) the digital world is extremely complex and delicate. Of course states have a right, and indeed a duty, to counter criminal activity that uses the Internet or e-communication systems. In this, they naturally enlist the help of relevant private actors. Responsible companies will also want to avoid their products and services being used for criminal purposes. Nonetheless, in such circumstances, states should in their actions both fully comply with their international human rights commitments and fully respect the sovereignty of other states. In particular, states should not circumvent constitutional or international law obligations by encouraging restrictions on human rights through “voluntary” actions by intermediaries; and companies, too, should respect the human rights of individuals.

The rule of law in the digital environment

The rule of law

The rule of law is a principle of governance by which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated and consistent with international human rights norms and standards. It entails adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in applying the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

The basic “rule of law” tests developed by the European Court of Human Rights

The European Court of Human Rights has developed elaborate “rule of law” tests in its case law, and these have also been adopted by other international human rights bodies. To pass these tests, all restrictions on fundamental rights must be based on clear, precise, accessible and foreseeable legal rules, and must serve clearly legitimate aims; they must be “necessary” and “proportionate” to the relevant legitimate aim (within a certain “margin of appreciation”); and there must be an “effective [preferably judicial] remedy” against alleged violations of these requirements.

“Everyone”, without discrimination

It is one of the hallmarks of international human rights law since 1945, and one of its greatest achievements, that human rights must be accorded to “everyone”, to all human beings: they are humans’ rights, not just citizens’ rights. Thus, subject to very limited exceptions, all laws, of all states, affecting or interfering with human rights must be applied to “everyone”, without discrimination “of any kind”, including discrimination on grounds of residence or nationality.

Because of the unique place of the USA and US companies in the functioning of the Internet, the constitutional and corporate legal framework in the USA is of particular importance. However, in contrast to the above-mentioned principle of international human rights law, many of the human rights guarantees in the US Constitution and in various US laws relating to the digital environment apply only to US citizens and non-US citizens residing in the USA (“US persons”). Only “US persons” benefit from the First Amendment, covering free speech and freedom of association; the Fourth Amendment, protecting US citizens from “unreasonable searches”; and most of the (limited) protections against excessive surveillance provided by the main pieces of legislation on national security and intelligence (FISA Amendment and Patriot Acts).

“Within [a contracting state’s] [territory and] jurisdiction”

The duty of states to comply with their responsibilities under international human rights law also when acting extraterritorially The main international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), oblige states to “ensure” or “secure” the human rights laid down in those treaties to “everyone subject to their jurisdiction” (or “within their jurisdiction”). This requirement is increasingly given a functional rather than a territorial meaning – as has recently been reaffirmed by the Human Rights Committee and the European Court of Human Rights. In other words, each state must ensure or secure these rights to anyone under its physical control or whose rights are affected by its (or its agencies’) actions.

Thus, states must comply with their international human rights obligations in any action they take that may affect the human rights of individuals – even when they act extraterritorially, or take actions that have extraterritorial effect. This obligation has specific consequences for data – what the digital world is made of – and especially for personal data, as is recognised by European data-protection law, which protects all individuals whose data are processed by European controllers, irrespective of their place of residence, nationality or other status. However, the USA formally rejects this application of international human rights law. In view of the predominance of the USA (and of US corporations that are subject to that country’s jurisdiction) in the digital environment, this poses a serious threat to the rule of law in that new environment.  Continue reading “D. KORFF : The rule of law on the Internet and in the wider digital world”

Is “synchronized swimming” the right approach for the EP (and for the Council) ?

by Emilio DE CAPITANI

Yesterday there was no political majority in the European Parliament to vote on the Juncker Commission 2015 Programme. Quite shocked Votewatch describe this “non event” as follows: “As this vote has just shown, the European Commission President, Jean Claude Juncker, will have a hard time building majorities in the European Parliament: the EU legislative was unable to reach a common position with regard to the plans put forward by the Executive for 2015. In a dramatic display of power play, the political groups voted down each other’s proposals one by one. The first text put to vote was the one proposed by the largest political group, the EPP. This was giving full backing to the Commission’s proposed legislative agenda for this year. The EPP, which is also the group of Jean Claude Juncker, supported Commission’s plans to reduce the bureaucratic burdens and the introduction of mandatory impact assessments of all new legislation on SMEs. EPP also positioned itself strongly in favour of a comprehensive TTIP agreement (between the EU and the US). EPP’s document was, however, voted down by a combination of left and radical right opposition. The text proposed by the ALDE group didn’t stand a chance either. Then, the much more critical resolutions proposed by the Greens/EFA and the S&D groups seemed to gain momentum, as some of their amendments mustered a majority, particularly calls against the allegedly proposed plans of watering down the social and environmental agenda, through cancelling certain EU laws or the TTIP. However, at the final vote these documents were rejected too by the other groups, which cancelled the victories on separate amendments. The same happened with the resolutions proposed by the remaining political families. This is a clear signal that, after the EU elections in May 2014 and the spitzenkandidaten process, the European Commission has become more political and that it will have a harder life in the Parliament.”.

However it think that this EP apparent “failure” should be seen also under a different perspective.

It is more than likely that the Juncker  Commission feels to be more “political” compared to the Barroso’s previous teams but it is also true that it has overestimated its new position in the legislator’s triangle. On the European Parliament side she should had been aware  that until now the support that it has received from the “grosse coalition” (EPP, SD and ALDE) was only on very generic (when not contradictory) objectives.

I think that the main error with the 2015 Programme has been to come before the European co-legislator by claiming that there would had been less new…legislation when the Treaty of Lisbon objectives have yet to be implemented. Less EU legislation could be a music for UK or NL but sounds very inappropriate in Strasbourg where there are several MEPS who still consider to have been elected to change the EU and not to preserve the existing one.  Moreover if limits have to be established it would be more appropropriate to do it on the Commission side as 9/10 of the EU binding acts adopted every year come out  from hundreds committees driven by the Commission in perfect (and very often opaque) complicity with the representatives of the Member States.

Coming back to the Commission’s  political programme for 2015 it still mirrors the general objectives already repeated since the electoral campaign without fleshing them out on concrete proposals. It would then have been illusory to expect from a new elected Parliament a support for an annual agenda which many MEPs during the plenary debate have considered in several aspects generic if not misleading.

A further Commission’s error has been to list between the legislative measures which should be withdrawn because obsolete also measures on which the negotiations between the European Parliament and the Council are still under way. By so doing the Commission was probably trying to show that its right of legislative initiative remain in full also during the legislative negotiations. However after more than 1.400 legislative codecisions it would had been naïve to think that the co-legislator (and notably the EP) would had accepted to be taken away by the Commission the chair on which he was sitting .

Furthermore this would be an over “generous” interpretation of the Commission right to “…alter its proposal at any time during the procedures leading to the adoption of a Union act” (art. 293.2 TFEU) The Treaty does not make reference to a Commission power of withdrawal but only to a power of amendment and only “As.long as the Council as not acted…”. By modifying its proposal can already heavily influence the balance of power in the Council which will require unanimity to overcome the Commission text. This Commission power to influence the majority in the Council may be justified to counterbalance the pressure of national governments in the Council but has no ground towards the European Parliament which derives is legitimacy from the vote of the EU citizens. The Juncker Commission to become again a sort of “Deus ex machina” as it was before the European direct elections is then quite misplaced.

So, the main error of the Commission move with the 2015 Programme has been to consider itself as if it were  already a  true European Government and only because of the success of the “spitzenkandidaten” procedure and of the support of the high ranks of  the political groups.

We are still very far from this situation and it has still to be proved that mirroring the nation state constitutional balance fits also with European “sui generis” legal order which has been proudly defended by the European Court of Justice. Clearly this will require some creativity from the EU political architects but the first signs are not very promising. Take the case of the recent inter institutional  negotiations to strengthen inter-institutional annual and multiannual programming . The main objective of this exercise should be “to set common objectives and ensure an even more rapid and efficient decision-making process, while preserving the quality of legislation”. This exercise takes as basis the art. 17(1) TEU according to which European Commission “shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.”  However according to a draft joint declaration (hopefully not yet adopted) the institutions should endeavour to establish a political framework by including a commitment to fast-track priority proposals.  In a European Union where “First reading agreements” have already become the rule thanks to the goodwill of the European Parliament the creation of an informal “urgency procedure” (not foreseen by the treaties) looks suspect even if feasible on the basis of “binding” interinstitutional agreements (art. 295 TFEU).

The point is that to preserve the institutional balance these agreements should be equally binding for all the parties involved which regrettably is not currently the case in the informal draft which are informally circulating.

A balanced agreement could, for instance, foresee that the Commission SHOULD submit a legislative proposal if so required by one of the the Co-legislator (or by a citizen’s initiative). It could also foresee that the European Parliament could ask the Council to vote on a given legislative proposal (a faculty which is since decades recognized to the Commission) as it already granted to the Council and to the Commission to ask for a urgent vote of the EP.  These innovations could improve the current situation where the Commission does not give the opportunity to a majority of MEPs to challenge the Council on a legislative proposal which could implement an EU objective. The agreement could also oblige the Council to vote (even if it could be a rejection) on texts which are pending since years such as the anti-discrimination Directive or the revision of the access to documents Regulation.

Regrettably no one of these possible improvements is currently debated so that the only possible outcome risk to be a further unbalance of the EP  position (*)

But these procedural machineries taken apart the real question is if  an European Union “family photo” at the beginning of the year, without knowing what the future proposals could cover, is not a political and moral hazard. As the experience has showed since the entry into force of the codecision procedure in 1994, interinstitutional agreements are meaningful when done on a case by case basis as the representatives of the EU Governments and ones of the  EU Citizens could have a different perspective when confronted on specific legislative choices  (and quite rightly so).

Under this perspective I do believe that the new envisaged procedural machinery is not in the interest of the European Parliament nor probably of the EU Member States. For these reasons the lively debate of this week and the failure to vote on the Commission programme is probably more a sign of true democracy than the reverse.

——————————————–

(*) It remain a mistery why after the entry into force of a Treaty the EP management fight so hard to lose the powers he has obtained. In this specific case the latter is  already planning a new internal procedure which will empower a rather obscure internal body (the Conference of the Committee chairman) to  give priority to the legislative proposals agreed in the interinstitutional planning by inevitably slowing down the other proposals.

 

 

Droit international : les règles d’acquisition et de retrait de la nationalité

EPRS | Service de recherche du Parlement européen. Service de recherche pour les députés. Auteur: Fanny Fontaine (*)

ORIGINAL PUBLISHED HERE

Le pouvoir discrétionnaire traditionnellement reconnu aux États en matière d’acquisition et de retrait de la nationalité n’est pas sans limite. Plusieurs principes développés par le droit international et la jurisprudence encadrent cette prérogative étatique : l’obligation d’éviter et de réduire les cas d’apatridie ; l’interdiction de la privation arbitraire de nationalité ; et l’obligation générale de non-discrimination. Des mécanismes de plainte individuelle existent également devant certains organes institués par les principaux traités internationaux de protection des droits de l’homme.

La nationalité en droit international

C’est sous l’angle des relations interétatiques et des conflits de lois sur la nationalité que le droit international est intervenu au début du XXème siècle. Dans son célèbre arrêt Nottebohm en 1955, la Cour internationale de justice a défini la nationalité comme le “lien juridique ayant à sa base un fait social de rattachement, une solidarité effective d’existence, d’intérêts, de sentiments jointe à une réciprocité de droits et de devoirs.” Lien de rattachement permettant l’exercice de certaines prérogatives étatiques, comme la protection diplomatique, la nationalité confère aussi un statut juridique nécessaire à l’exercice de nombreux droits civils et politiques. La Déclaration universelle des droits de l’homme, suivie en cela par plusieurs autres instruments internationaux et régionaux, établit le droit à la nationalité, ainsi que le droit de ne pas être privé arbitrairement de sa nationalité. Les enfants, ainsi que certains groupes de personnes vulnérables, bénéficient par ailleurs d’une reconnaissance spécifique du droit à la nationalité. Pour autant, le droit international laisse les États libres de déterminer les modalités d’obtention de la nationalité, par la naissance ou la filiation (en vertu des principes de ius soli et de ius sangiunis), ou par la naturalisation.

Le principe de non-discrimination en matière de nationalité, inscrit à l’article 5 de la Convention européenne sur la nationalité, n’interdit toutefois pas de manière absolue les traitements différenciés entre ressortissants, selon qu’ils ont acquis la nationalité à la naissance ou a posteriori par un acte de naturalisation.

La protection contre l’apatridie

Le droit à la nationalité est également régi par les Conventions des Nations Unies de 1954 et de 1961 relatives à l’apatridie. Ces instruments, adoptés afin de clarifier le statut des personnes apatrides et de leur conférer un certain nombre de droits fondamentaux, visent également à prévenir et à réduire les situations d’apatridie dans le monde (plus de 10 millions selon les Nations Unies). La Convention de 1961 sur la  réduction des cas d’apatridie établit ainsi le principe général selon lequel une personne ne peut être privée de sa nationalité si cette privation la rend apatride. L’article 8 de cette Convention autorise cependant la privation de nationalité, même si elle engendre l’apatridie, dans un nombre limité de circonstances. Ces exceptions au principe général recouvrent des hypothèses telles que l’obtention de la nationalité par le biais d’une fausse déclaration ou de tout autre acte frauduleux, ou le comportement de nature à porter un préjudice grave aux intérêts essentiels de l’État.

La Convention interdit également toute discrimination d’ordre racial, ethnique, religieux ou politique dans le cadre du retrait de nationalité. Elle exige en outre que des garanties procédurales accompagnent la perte de nationalité, sous peine de la rendre arbitraire.

La Convention européenne sur la nationalité

La Convention européenne sur la nationalité de 1997 énumère de manière plus limitative les hypothèses de déchéance de nationalité aboutissant à l’apatridie, et ne prévoit cette possibilité en son article 7 que dans le cas où la nationalité a été obtenue par le biais de fausses informations ou de conduite frauduleuse. D’autres motifs sont énumérés dans la Convention, comme le comportement portant un préjudice grave aux intérêts essentiels de l’État, ou l’engagement volontaire dans des forces militaires étrangères, mais ceux-ci ne peuvent fonder une déchéance de nationalité entraînant l’apatridie de la personne visée.

La privation arbitraire de nationalité : contours

L’interdiction de la privation arbitraire de la nationalité, qui vise à protéger le droit d’en conserver une, est énoncée par la Déclaration universelle des droits de l’homme comme un corollaire du droit à la nationalité. Ce principe général d’interdiction est repris dans de nombreuses conventions internationales et régionales. Les mesures conduisant à la privation de la nationalité, telles qu’autorisées par le droit international, doivent donc respecter un certain nombre de conditions afin de ne pas être arbitraires :

a) elles doivent être fondées sur une base juridique claire ;

b) elles doivent servir un but légitime qui soit conforme au droit international ;

c) elles doivent être proportionnelles à l’intérêt qu’elles visent à protéger et

d) des garanties procédurales doivent être respectées permettant à l’intéressé de faire valoir tous ses moyens de défense devant une instance indépendante.

Par ailleurs, la Commission du droit international a récemment soumis à l’Assemblée générale des Nations Unies un projet d’articles sur l’expulsion des étrangers, abordant en son article 8 la question de la déchéance de nationalité au regard de l’interdiction de la privation arbitraire de nationalité. L’Assemblée générale des Nations Unies a décidé d’examiner lors de sa prochaine session l’opportunité d’élaborer une convention sur cette base.

Le Secrétaire général des Nations Unies, dans son rapport “Droits de l’homme et privation arbitraire de la nationalité” soumis au Conseil des droits de l’homme en 2009, rappelle que “la notion d’arbitraire s’applique à tout acte de l’État, qu’il soit de nature législative, administrative ou judiciaire. La notion d’arbitraire peut être interprétée comme visant non seulement les actes contraires à la loi, mais aussi, plus largement, ceux qui ont un caractère inapproprié, injuste ou même imprévisible.”

Les mécanismes de plainte individuelle

Le Conseil des droits de l’homme des Nations Unies dispose d’une procédure de requête lui permettant de connaître de violations flagrantes et systématiques des droits fondamentaux dans un État donné, indépendamment de l’acceptation d’obligations conventionnelles par le pays concerné. La procédure a lieu en principe à huis-clos, et ne prévoit pas l’indemnisation des victimes présumées. D’autres procédures de plainte individuelle existent devant les différents organes créés en vertu d’instruments relatifs aux droits de l’homme. Ces requêtes individuelles sont conditionnées à l’épuisement des voies de recours internes, et peuvent mener à une décision contraignante d’indemnisation des victimes concernées. Le droit à la nationalité est fréquemment évoqué devant ces instances.

Jurisprudence 

Outre les décisions rendues en matière de nationalité par la Cour internationale de Justice dans l’affaire Nottebohm en 1955, ainsi que par la Cour permanente de Justice internationale en 1923 dans l’affaire des Décrets de nationalité promulgués en Tunisie et au Maroc, la Cour européenne des droits de l’homme et la Cour de Justice de l’Union européenne ont également eu à se prononcer sur les principes encadrant l’autonomie des États en la matière.
La Convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales ne garantit pas le droit à la nationalité en tant que tel ; néanmoins, la Cour européenne des droits de l’homme a énoncé à plusieurs reprises que les règles étatiques en matière d’acquisition et de perte de nationalité pouvaient porter atteinte au principe de non-discrimination inscrit à l’article 14 de la Convention, ainsi qu’au droit à la vie privée et familiale inscrit à l’article 8 de la Convention.

La Cour de Justice de l’Union européenne a quant à elle souligné à diverses occasions que l’exercice par les États membres de leur compétence en matière d’octroi et de retrait de la nationalité pouvait faire l’objet d’un contrôle juridictionnel opéré au regard du droit de l’Union, en particulier au regard du principe de proportionnalité.

(*) Clause de non-responsabilité et droits d’auteur. Le contenu de ce document est de la seule responsabilité de l’auteur et les avis qui y sont exprimés ne reflètent pas nécessairement la position officielle du Parlement européen. Il est destiné aux Membres et au personnel du PE dans le cadre de leur travail parlementaire. Reproduction et traduction autorisées, sauf à des fins commerciales, moyennant mention de la source et information préalable et envoi d’une copie au Parlement européen. © Union européenne, 2015

H.LABAYLE, R.MEHDI : Terrorisme : le jour d’après

Original Published HERE

<strong>par Henri Labayle et Rostane Mehdi</strong>

(ENGLISH ABSTRACT by C.Perinaud:
The day after
Beyond disgust and emotion, the tragic events that which took place in Paris on 7 January 2014 lead us to think about the place of law in our contemporary societies. One can only be shocked by the inability of the latest to tackle the increasing number of murders driven by fanatism and religious obscurantism.
What strikes in the attack of CharlieHebdo is the position of the victims; journalists, satirical cartoonists and the policemen who were in charge of protecting them. Yet, according to the ECtHR formula the murder aimed at killing the “public watchdog of the democracy” . Who will protect us from hated and intolerant speech tomorrow?
Yesterday
The events that which arose in Paris are unfortunately only exceptional because of their extent. For 25 years, Salman Rushdie has been frightened by those who condemned him.
For almost 10 years, Danish cartoonists from the Jyllands-Posten have been placed under the police protection.
We need to think about it. If we need to talk about a “civilisation war”, it can’t be a religious one or a mere irreducible opposition between Occident and Islam. If there is a war, it can only be a fight for the Rule of law.
Tomorrow
The answer to those events is the criminal law so as to reduce the killers to what they are and what they have never ceased to be: criminals. To read things from another prospective would be to acknowledge acknowledging that the fight they intend to conduct can be qualified as such. But it cannot because it is only a crime.
Yet, the collapse of the Rule of law is obvious as it is unable to provide for an efficient answer to the terrorist threat. What strikes the observer of the area of Freedom Security and Justice is indeed the growing number of those criminal actions and the difficulties faced by democratic societies to overcome them.)

TEXT OF THE ORIGINAL POST

Les assassinats commis au journal Charlie Hebdo ne nous sont pas étrangers. Ni le citoyen, ni le juriste, ni l’observateur des développements de l’Espace de liberté, sécurité et de justice ne peuvent y être indifférents. Ils nous invitent, par delà le dégoût et l’émotion, à réfléchir aux grands équilibres de nos sociétés contemporaines et à la place que le droit peut y tenir.

On ne peut qu’être surpris et anéantis devant le spectacle, au XXI° siècle, d’une société occidentale incapable d’interrompre la chronique inexorable de meurtres annoncés par le fanatisme et l’obscurantisme religieux, chaînon supplémentaire à l’abomination quotidienne qui ensanglante le Proche Orient.

Ce qui frappe ici d’abord et nous touche au plus profond, sont les victimes. Journalistes, caricaturistes, policiers les protégeant sont tombés sous les balles de criminels ayant juré leur perte en raison de caricatures jugées offensantes pour la religion musulmane. Aussi, par delà les débats de principe relatifs à la liberté de la presse et à la liberté d’opinion, il est bon, peut-être de rappeler aujourd’hui ce qu’en dit la Cour européenne des droits de l’Homme, dans une formule magnifique : la presse est le « chien de garde de la démocratie » (CEDH, 25 juin 1992, Thorgeir Thorgeirson c. Islande, req. n° 13778/88).

Le meurtre de la rédaction de Charlie Hebdo n’est autre que celui des chiens de garde de nos démocraties. Il nous renvoie à cette interrogation simple : qui nous protégera, demain, des discours de haine et d’intolérance qui ont armé le bras des assassins ?

A la condamnation de ceux là, la Cour européenne des droits de l’Homme participe aussi lorsqu’elle affirme haut et clair que « la tolérance et le respect de l’égale dignité de tous les êtres humains constituent le fondement d’une société démocratique et pluraliste. Il en résulte qu’en principe on peut juger nécessaire, dans les sociétés démocratiques, de sanctionner voire de prévenir toutes les formes d’expression qui propagent, incitent à, promeuvent ou justifient la haine fondée sur l’intolérance (y compris l’intolérance religieuse), si l’on veille à ce que les « formalités », « conditions », « restrictions » ou « sanctions » imposées soient proportionnées au but légitime poursuivi » (CEDH, 2 juillet 2006, Erbakan c. Turquie, req. 59405/00).

C’est bien ainsi qu’il nous faut percevoir les évènements parisiens d’hier, qui ne sont exceptionnels malheureusement que par leur ampleur.

Hier

Voici près d’un quart de siècle que Salman Rushdie est poursuivi par la vindicte imbécile de ceux qui l’avaient condamné, que son traducteur japonais puis son éditeur ont été victimes de leur proximité avec l’auteur des Versets sataniques. Voici près de dix ans que les dessinateurs danois du Jyllands-Posten, pour des faits exactement similaires à ceux reprochés à Charlie Hebdo, sont placés sous protection policière.

Y réfléchir est nécessaire. A l’instar de l’historicisme, l’approche consistant à faire de la culture le fondement exclusif du droit mène peu ou prou au relativisme. Or, la ligne suivie par les islamistes est bien celle-là : dans le domaine des droits de l’homme les particularités spirituelles ou culturelles y légitiment, en le systématisant, le rejet de principes généralement considérés comme universels. Dans cette perspective, les droits fondamentaux plongent leurs racines « dans la conviction que Dieu, et Dieu seul, est l’Auteur de la Loi et Source de tous les droits de l’homme » (Introduction, al. 2, Déclaration islamique universelle des droits de l’homme).

Se dessinent ainsi les contours d’un univers dans lequel l’homme n’est pas détenteur de prérogatives inhérentes à sa nature mais redevable à une volonté divine dont tout procède. La prégnance des préceptes religieux est ici absolue, car ils étalonnent (en réalité, ils vident de leur substance) tous les droits et libertés énoncés. Ainsi, même lorsqu’il est expressément reconnu, le droit à la liberté religieuse et donc par extension les droits qui en dérivent ne peuvent s’exercer que dans les limites imposées par la Loi de Dieu (Article 13 de la DIUDH qui doit être lu à la lumière des dispositions de l’article 2). Pour les islamistes, l’attribution de droits s’effectue exclusivement par référence à une appartenance religieuse et selon un raisonnement substantiellement discriminatoire. En effet, toute cette construction repose sur l’idée centrale que les hommes devront être distingués sur la base de leur religion et soumis de ce fait même à des régimes que l’on sait différenciés.

Cette démarche vise à rompre avec un unanimisme factice (du moins au yeux des islamistes), le but recherché étant d’assurer l’intégrité d’un système de valeurs définitivement inconciliables avec les prescriptions universelles notamment en ce qu’elles concernent les droits de la femme, la liberté de conscience ou les peines pénales cruelles et inhumaines. Elle revient à dénier toute pertinence au prolongement moderne le plus remarquable de ces philosophies humanistes en vertu desquelles le respect des droits de l’homme ne résulte que des exigences de la raison humaine.

Par delà les discours convenus et les tentatives de récupération politique auxquels, déjà, la société médiatique se prête, une réflexion s’impose alors quant à la « guerre » de civilisation à laquelle Régis Debray se référait aujourd’hui, sur France Culture. Elle est tout sauf une guerre de religions comme d’aucuns s’empressent de nous le suggérer, un affrontement entre l’Occident et l’Islam, une opposition de nature complaisamment mise en scène par des amateurs de lumière médiatique.

S’il faut employer un vocabulaire belliciste, mieux vaut être conscient de sa portée tant l’utilisation de ces postures a conduit loin, trop loin, outre-Atlantique comme la publication expurgée d’un rapport de la CIA par le Sénat américain le mois dernier en atteste. Si guerre il y a, elle est tout simplement une guerre entre l’Etat de droit et l’Etat de non-droit.

Demain

La réponse par le droit est donc la seule qui vaille, et par un droit pénal ramenant les coupables à ce qu’ils sont et non jamais cessé d’être : des criminels. Parler autrement serait reconnaître que le combat qu’ils prétendent mener en est un. Il n’est que crime. Il est d’ailleurs vraisemblable que les brillantes analyses visant à leur prêter une stratégie réfléchie et le projet d’opposer les communautés n’est qu’illusion. Animés de leur volonté de vengeance et sûrs de leur bon droit, ils n’ont sans doute voulu qu’une seule chose : punir et tuer. Qu’en revanche, en amont, le conditionnement des esprits et, en aval, la réalisation du crime aient nécessité l’appui d’une organisation va de soi.
Or la faillite du droit est ici manifeste.
Empilant les législations d’exception les unes sur les autres, sans grands états d’âme du législateur, l’Etat de droit n’apporte aujourd’hui aucune réponse véritablement efficace à la menace, la criminalité terroriste empruntant des formes et des calendriers auxquels l’action policière peine à s’adapter, faute de moyens parfois et parce que les limites du droit l’imposent, souvent.
En l’espèce, la rapidité de la réponse policière ne masquera pas longtemps qu’elle n’est que réaction, qui plus est à propos de Pieds Nickelés de l’horreur oubliant leur carte d’identité dans leur véhicule. Là encore les polémiques habituelles s’en nourriront. Pourtant, en démocratie, c’est ainsi que la loi le commande et c’est bien là que les difficultés se multiplient, en France et en Europe.
Car ce qui frappe, dans l’observation de l’Espace de liberté, sécurité et justice, est bien la généralisation de cette forme d’action criminelle et la difficulté des Etats démocratiques à y répondre. Rapidement classée dans nos esprits au rang des faits divers, la tuerie aveugle du Musée juif de Bruxelles doit davantage l’arrestation de son auteur au hasard qu’à l’efficacité de la loi pénale et ce, après que l’affaire Merah ait pourtant frappé les esprits et provoqué des remises en question.
C’est dire qu’agir en amont est essentiel en la matière, ce dont l’Union européenne a pris conscience au cours de l’année 2014, suivant en cela l’impulsion du Coordinateur de la lutte anti-terroriste. Outre l’identification et le suivi des individus concernés, le stockage des données les concernant, la prévention et la lutte contre la radicalisation terroriste sont ainsi devenus des priorités, en lien avec le dossier des djihadistes européens partant combattre au Proche Orient. Merah, Nemmouche et peut être l’un des suspects du carnage de Charlie Hebdo n’en faisaient-ils pas partie ?
Ainsi, la guerre des idées est venue progressivement s’imposer à l’esprit d’une société qui était largement restée indifférente à cette dimension particulière.
Car c’est vraisemblablement là qu’est le nœud du problème.
Dans une société européenne largement sécularisée où parfois, comme en France, la laïcité est érigée en principe commandant la neutralité de la chose publique, l’irruption du fait religieux n’a pas été perçue à sa juste mesure, en particulier mais pas seulement à propos de l’Islam.
Religion d’implantation relativement nouvelle en France, sinon en Europe, son insertion et son adaptation à la société occidentale n’ont fait l’objet d’aucune attention particulière, d’aucun accompagnement, d’aucune pédagogie réciproque.

Permettant que soit mis l’accent sur ce qui singularise et sépare et non sur ce qui rassemble le corps social, la démocratie libérale a ainsi autorisé sans s’en rendre compte que la place publique devienne le siège de débats récurrents, de la burka aux menus des cantines en passant par les prières de rue, dont les solutions en forme de compromis ont donné à chacun le sentiment qu’il en était le perdant. Confessionnalisation des principes et communautarisation des démarches n’ont sans doute pas suscité l’attention méritée, fait mesurer les risques encourus.

A cette incapacité à dégager des lignes claires de vie en commun s’est ajoutée le spectacle d’un théâtre extérieur où la multiplication des interventions occidentales au Proche Orient puis en Afrique subsaharienne a fini par donner l’impression d’une planification organisée.
L’irrationnel et le fanatisme ont alors enclenché le processus de victimisation et de vengeance. Il conduit à la journée d’hier tandis que l’instrumentalisation de cette violence, de part et d’autre, ouvre le risque de voir se creuser les fossés.

Edgar Morin l’écrit très bien dans le Monde de ce jour : « la pensée réductrice triomphe. Non seulement les fanatiques meurtriers croient combattre les croisés et leurs alliés les juifs (que les croisés massacraient), mais les islamophobes réduisent l’arabe à sa supposée croyance, l’islam, réduisent l’islamique en islamiste, l’islamiste en intégriste, l’intégriste en terroriste».

Lutter contre cette réduction demande donc de changer de logiciel. N’est pas Saint Just qui veut pour réclamer « pas de liberté pour les ennemis de la liberté » mais là est bien l’interrogation qui va dominer le débat politique dans les jours qui viennent.

S.PEERS : (AFTER CHARLIE HEBDO) DOES THE EU NEED MORE ANTI-TERRORIST LEGISLATION?

Original published HERE

By Professor Steve PEERS

Thursday, 8 January 2015

In the wake of the appalling attacks in Paris two days ago, it only took 24 hours for the EU Commission to state that it would propose a new wave of EU anti-terrorist measures in a month’s time. It’s not yet known what the content of this law will be; but the very idea of new legislation is a profound mistake.

Of course, it was right for the EU institutions to express sympathy for the victims of the attack, and solidarity as regards defence of free speech. Equally, it would not be problematic to use existing EU anti-terrorism laws if necessary, in order (for instance) to surrender the suspects in this crime on the basis of a European Arrest Warrant (EAW), in the event that they fled to another Member State.

The question is whether the EU needs more such laws.

For the EU has already reacted to prior terrorism offences, first as regards 9/11 and then to the atrocities in Madrid and London in 2004 and 2005.

The result is a huge body of anti-terrorism law, catalogued here by the SECILE project. This comprises not only measures specifically concerning terrorism (such as substantive criminal law measures, adopted in 2002 and amended in 2008), but many other measures which make it easier to cooperate as regards terrorism as well as other criminal offences, such as the EAW, the laws on exchange of police information and transmission of evidence across borders, and so on.

Moreover, there are proposals already under discussion which would apply to terrorism issues (among others), such as a new law on Europol, the EU’s police intelligence agency (discussed here), and proposed EU legislation on the transfer of airlines’ passenger name records (PNR).

So what new laws is the Commission likely to propose? It may suggest a new version of the data retention Directive, the previous version of which was struck down by the Court of Justice of the European Union (CJEU) last spring, in the Digital Rights judgment (discussed here). Other ideas under discussion, according to leaked documents (see here and here) are new laws strengthening mandatory checks at borders .

Are any of these laws really necessary? Member States can already adopt laws on retention of communications data, pursuant to the EU’s e-privacy directive.

As the European Parliament’s legal service has confirmed (see its advice here), if Member States adopt such measures, they will be subject to the constraints of the Digital Rights judgment, which bans mass surveillance carried out in the absence of safeguards to protect privacy. Equally, Member States are free to establish their own PNR systems, in the absence of any EU-wide measure (besides EU treaties with the USA, Canada and Australia on PNR). The question of whether mass surveillance is as such compatible with human rights has already been sent to the CJEU by the European Parliament, which has asked the Court to rule on this issue in the context of the EU/Canada PNR treaty (see discussion here).

It would be possible to adopt new laws calling for systematic border checks in specific cases. In practice, this would likely mean checks on Muslims who are returning after travel to places like Syria. It is questionable whether asking detailed further questions at the external borders will, by itself, really do a lot to prevent terrorism. After all, in the Paris attacks, it unfortunately proved impossible to prevent an apparent terrorist attack despite extensive anti-terrorist legislation on the books, and bodyguards protecting the staff of a known terrorist target.

There’s also a question of principle here.

The Paris attacks were directed at free speech: the foundation of liberal democracy. Of course efforts should be stepped up to prevent such attacks from happening again; but existing laws allow for targeted intelligence gathering and sharing already, The Commission’s immediate response reeks of panic. And the direct attack on fundamental democratic principles this week in Paris is precisely the wrong context to consider that new legislation curtailing other fundamental freedoms is limited.

S.PEERS : 2014 in review . Free Movement, Immigration and Asylum Law

Original Published HERE

Introduction

The issue of the free movement of EU citizens, as well as immigration and asylum from non-EU countries, has in recent years become one of the most contested issues in EU law. This blog post reviews the large number of legal developments over the last year in these two fields, assessing firstly the controversies over EU citizens’ free movement rights and secondly the tensions in EU immigration and asylum law between immigration control and human rights and between national and EU powers. It’s the second in a series of blog posts reviewing aspects of EU law in the last year; the first in the series (on criminal law) can be found here.

Free Movement Law

The case law of the CJEU on EU citizens’ free movement in 2014 was dominated by the themes of the limits to economic migration and equal treatment, in conjunction with EU citizens’ right to family reunion. On the first point, the most prominent judgment of 2014 was the Dano ruling (discussed here), in which the CJEU took a more stringent approach than usual in ruling that an EU citizen who had not worked or looked for work had no right to insist upon a social assistance benefit in the Member State that she had moved to.

As for the basic rules on qualification for EU free movement rights, the CJEU was not asked to rule in 2014 on the definition of EU citizenship. However, a pending case in the UK Supreme Court (discussed here) raises important questions about the extent of EU rules on the loss of national (and therefore EU) citizenship. The acquisition of EU citizenship also proved controversial, in the context of Malta’s sale of national (and EU) citizenship (discussed here).

Furthermore, EU free movement rights usually only apply to those who have moved between Member States. In two linked judgments this spring (discussed here), the CJEU clarified some important exceptions to that rule, as regards EU citizens who have moved to another country to be with their family members and returned, or who are cross-border workers or service providers. Next year, the CJEU will further clarify another important exception to that rule: the Ruiz Zambrano scenario when the non-EU parent of an EU citizen child is expelled to a third country, and the EU child has to follow, resulting in a de facto loss of their EU citizenship. The CS and Rendon Marin cases both ask the Court whether that case law applies to cases where the non-EU parent has been expelled following a criminal conviction.

For those EU citizens who do move between Member States, the CJEU delivered an important judgment in the case of Saint-Prix (discussed here), extending the concept of ‘former workers’ beyond the categories listed in the EU’s citizens Directive, to include also (under certain conditions) cases of pregnant women who gave up their jobs before the baby’s birth.

This judgment concerned the continued access to equal treatment in welfare benefits which former workers enjoy. Indeed, a new Directive on workers’ equal treatment (discussed here) was adopted in 2014, aiming to ensure the effective implementation of such equal treatment rights in practice. Next year, the CJEU will be called upon in theAlimanovic case to clarify whether the limits on EU citizens’ access to benefits set out inDano also impact upon work-seekers, who have previously had limited access to benefits linked to labour market access. The Court will also soon rule on students’ access to benefits again in the case of Martens, where there has already been an Advocate-General’s opinion.

The issue of EU citizens’ right to family reunion was repeatedly addressed throughout the year, with the CJEU taking a consistently liberal view. It ruled for a generous interpretation of ‘dependent’ family members in Reyes (discussed here), and confirmed that separated spouses can still qualify for permanent resident status in Ogierakhi (discussed here). It also ruled in McCarthy (discussed here) that non-EU family members of EU citizens could not be subject to a ‘family permit’ requirement to visit the UK, but rather had to be exempt from the need to obtain a visa if they hold a residence card in the country which they live in. This judgment clarified that Member States could only claim that EU citizens were abusing free movement rights in individual cases. On this topic, the Commission produced a Handbook on the issue of ‘marriages of convenience’ (discussed here). Next year, the Court will be called upon to clarify the application of EU law to divorces (Singh), and for the first time, to same-sex relationships (Cocaj).

Finally, as regards the issue of derogations, the Court took a less generous view of cases involving criminal convictions, ruling in G and Onuekwere that time spent in prison in the host State did not count toward obtaining permanent residence status or the extra protection against expulsion that comes with ten years’ residence.

Of course, the benefits of EU free movement law are not uncontested. Throughout the year, the debate on the merits of these rules in the UK intensified, to the point where Prime Minister David Cameron insisted that there had to be a major renegotiation of these rules as a key feature in the renegotiation of the UK’s membership of the EU. As I pointed out at the time (see discussion here), many of his demands will be difficult to agree, as they would require Treaty amendment.

Immigration and Asylum law Continue reading “S.PEERS : 2014 in review . Free Movement, Immigration and Asylum Law”

S.PEERS Childhood’s End: EU criminal law in 2014

Original Published HERE Monday, 29 December 2014

With the elections to the European Parliament, the installation of a new European Commission, and a number of important legislative and case-law developments, 2014 was an important year for the European Union. This is the first in a series of blog posts reviewing the year in selected fields of EU law.

The most significant change to EU criminal law came on December 1, when the five-year transitional period relating to EU criminal law measures adopted before the entry into force of the Lisbon Treaty (‘pre-Lisbon EU criminal law measures’, also known in practice as the ‘third pillar’) came to an end. From this date on, pre-Lisbon EU criminal law measures are subject to the normal rules of EU law (except that they maintain their previous limited legal effect, in particular the lack of direct effect). More specifically, this change (discussed generally here) has three main impacts.

Firstly, the UK was entitled to opt out of all pre-Lisbon EU criminal law measures, and then apply to opt back in to some of them again. The UK indeed exercised these possibilities, opting back in to 35 such measures as of 1 December 2014 (see discussion of the details here), following an unnecessarily convoluted process in the House of Commons (discussed here). In a nutshell, since the UK has opted back into a large majority of the pre-Lisbon measures which have any significant importance, the whole process has had barely reduced the UK’s actual degree of participation in EU criminal law.

Secondly, the end of the transitional period means that the EU Commission can now bring infringement actions against Member States that failed to correctly implement pre-Lisbon EU criminal law measures – or that failed to implement such measures at all. The relevance of this is obvious in light of the Commission reports issued this year, regarding: legislation on the transfer of prisoners, probation and parole and supervision orders (discussed here); hate crime and Holocaust denial (discussed here); and conflicts of jurisdiction and the recognition of prior convictions (discussed here).

Thirdly, all courts in all Member States can now send references to the CJEU on the interpretation pre-Lisbon EU criminal law. For the EU as a whole, the impact of this change will probably be limited in practice, because (a) two-thirds of Member States allowed such references anyway, and (b) there were no such limits regarding EU criminal law adopted after the entry into force of the Lisbon Treaty. On the former point, the CJEU decided two cases this spring on the EU’s double jeopardy rules (discussed here), in which it finally developed the relationship between those rules and the double jeopardy provisions of the ECHR and the EU Charter of Fundamental Rights. A final reference to the CJEU on the basis of the old rules, sent just a month before the end of the transitional period (Kossowski), now asks the Court to clarify whether Member States’ derogations from the Schengen rules violate the EU Charter.

On the second point, the first reference from national courts on post-Lisbon EU criminal law was referred this year: the Covaci case, on the Directive on interpretation and translation in criminal law proceedings and the Directive on the ‘letter of rights’. So far, there is no sign of the predicted avalanche of cases on EU suspects’ rights legislation (the deadline to apply the letter of rights Directive passed in June). Of course, there could still be an increase of such cases in future, perhaps after the 2016 deadline to apply the third suspects’ rights Directive (on access to a lawyer). And in the meantime, Member States must apply the victims’ rights Directive towards the end of 2015. Hopefully the CJEU’s case law on that measure will be more convincing than its ruling earlier this year (criticised here) on the scope of the Directive on compensation for crime victims.

Another important CJEU judgment in the criminal law field this year (discussed here) ruled that policing information measure actually fell within the scope of EU transport law. The immediate impact of this judgment was a rush to adopt replacement legislation (the text of which is already agreed), which will apply to all Member States (the UK, Ireland and Denmark had opted out of the prior measure). More broadly, the judgment shows that the CJEU is not inclined to interpret the EU’s criminal law powers broadly – at least as compared to the EU’s other powers.

The end of the transitional period did not lead to a general review of pre-Lisbon EU criminal law measures, with the Commission proposing only a very limited repeal of some obsolete measures (I’ll blog on these proposals in the new year). In particular, the new Justice Commissioner appears to have no significant agenda to suggest criminal law proposals, whether to amend prior measures or to adopt new ones (for an argument as to what the Commission should do, see here).

However, some of the pre-Lisbon criminal law measures have been amended or replaced, or will be amended or replaced by proposed legislation now under discussion. In particular, during 2014, the EU adopted legislation concerning: the European Investigation Order (discussed here); the counterfeiting of the euro (discussed here); the confiscation of criminal assets; and the European Police College (moving its seat from the UK to Hungary). The EU also adopted legislation on criminal sanctions for market abuse (discussed here).

There are also proposals under discussion to replace pre-Lisbon EU criminal law measures concerning: fraud against the EU (see the state of play here); the police agency, Europol (see discussion of negotiations here); the prosecutors’ agency, Eurojust (there was a partial agreement on this proposal); and data protection in criminal law cases (see the state of play here). The latter issue is increasingly important, as indicated by the related CJEU judgment invalidating the data retention directive (discussed here), which gave rise to questions as to whether Member States could adopt or retain their own data retention laws (on this point, see generally here, and here as regards the UK in particular).

In fact, the CJEU will soon be ruling on data protection and criminal law issues as such, since the European Parliament has asked it to rule on the validity of the EU/Canada draft treaty on passenger name records (see discussion here). The pending Europe v Facebookcase (discussed here) raises questions about the impact of the Snowden revelations upon the EU and US arrangements on data protection. In the meantime, the proposed Directiveon passenger name records still remains on ice (having been put there by the European Parliament), with EU leaders’ attempt to set a deadline to adopt this proposal by the end of 2014 proving futile.

Other proposals are also under discussion: a more general overhaul of the European Police College; the creation of a European Public Prosecutors’ Office (see the state of play here); and the adoption of three more suspects’ rights measures, concerning child suspects (agreed by the Council), presumption of innocence (also agreed by the Council) and legal aid (see the state of play here). However, the Commission’s proposal for new rules relating to the EU’s anti-fraud body, OLAF, soon melted in the heat of Council opposition.

Conclusion

Taken as a whole, the year 2014 showed how the European Parliament, the CJEU and the Commission are already playing a significant role in the development of EU criminal law. Following the final demise of the third pillar, the year 2015 is likely to see further important developments in this area, which will make the pre-Lisbon measures even less important: the adoption of new legislation on Europol, the European Police College and possibly Eurojust, as well as revised legislation on fraud against the EU budget.

There will likely be two or three further Directives on suspects’ rights and the victims’ rights Directive will begin to apply. The rules on the new European Public Prosecutors’ Office might also be agreed, and there could be significant developments in the area of data protection. Overall, the longer-term trends toward greater parliamentary and judicial control and greater focus on individual rights in this area accelerated significantly in 2014 and could well do so again next year.