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

Some questions to the candidate High Representative for external relations (Federica Mogherini)

By Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be High Representative for the Common Foreign and Security Policy and Commission Vice President for external relations (Mogherini) will  questioned in the next two days by Members of the European Parliament (MEPs), to determine whether the EP should vote to confirm her in office. MEPs have already asked some written questions and the would-be Commissioners have replied. However, the oral hearings which will shortly take place are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments.

The following are suggested questions on institutional issues, although of course MEPs should also ask questions on the substance of EU foreign policy.

QUESTIONS TO HIGH REPRESENTATIVE CANDIDATE MOGHERINI

1 External Internal Security Policy

In your written answer you claim the need of a consistent and global approach to external and internal security. However, legally these two dimensions have been artificially separated in the Treaties by a disconnection clause (art.40 of TEU) [1] according to which the external security will remain intergovernmental. This means that consensus between the 28 Member States will remain the main rule, there are no legislative powers and the Court of Justice has no full judicial oversight. Bearing in mind these flaws of the EU external security policy (also from the point of view of the democracy principle and of the rule of law) would not be better to achieve some of your goals by building them on the external dimension of “internal” policies (such as protection of borders, migration, judicial and police cooperation)? If so qualified majority will be the rule and external agreements will be approved by the EP (as already happened with some EU-US agreements) and EU acts will be under the control of the Court of justice…

2.Solidarity clause in case of terrorist attack or natural or man made disaster (art. 222 TFEU)

On a joint proposal of your predecessor and of the Commission on 24 June 2014 the Council adopted thearrangements for the implementation by the Union of the solidarity clause (art 222 TFEU)  to be activated  if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The text has been adopted without associating the EP and moreover it does not foresee any structured information of the European Parliament on the way in which threats are defined and monitored, not even in the case that such an event occurs. However even if the Treaty does not impose a requirement to provide this information nothing would had prevented the Council from  foreseeing it on its own initiative also because it would be bizarre that the members of the EP discover a terrorist attack from the press rather than from institutional channels. Will you propose an amendment to that Decision by recognising an adequate space for the EP?

3.Global Approach to Migration and mobility partnership as a binding act

As you rightly say in your written answer, EU development policy and international agreements could be the answer to address the root causes of displacement. However the Global Approach of Migration and the mobility partnership are only diplomatic instruments and are meaningless if not framed as full international agreements. Should they be transformed into legal binding acts (both for third countries and the EU and its Member States) and be accompanied by formal EU agreements with the relevant UN Agencies (UNHCR, IOM) tasking (and financing) them for the interventions in third countries? Continue reading “Some questions to the candidate High Representative for external relations (Federica Mogherini)”

Future of EU migration, home and justice policies. Some questions to the new candidates commissioners..

by Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be Commissioners for immigration and home affairs and Justice will shortly be questioned by Members of the European Parliament (MEPs) in hearings, to determine whether the EP should vote to confirm them in office. MEPs have already asked some written questions and the would-be Commissioners have replied. Since most of the written questions were not very searching (except for a couple of questions on data protection issues), the Commissioners did not reply in much detail. However, the hearings are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments, in these fields. To that end, we have therefore suggested a number of oral questions which MEPs should ask in the hearings.

Immigration and asylum

The Commission consider that migration policy should be framed by the (non binding) objectives of the global approach to migration (GAMM) and relations with third countries should be dealt with by “Mobility Partnership” which are more diplomatic declarations than binding acts. Would you propose a binding legal basis for treaties with the countries concerned, grounded on Articles 77, 78 and 79 of the TFEU?

What actions will the Commission take to ensure that EU legislation in this field is fully and correctly implemented by the Member States?

Will the Commission propose an immediate amendment to the EU visa code, to confirm that Member States are obliged to give humanitarian visas to those who need them and who apply at Member States’ consulates in third countries?

When will the Commission propose EU legislation to guarantee mutual recognition of Member States’ decisions regarding international protection, including the transfer of protection?

When will the Commission make proposals for a framework for sharing responsibility for asylum-seekers and persons who have been granted international protection, starting with those who have applied outside the territory of the Member States?

Will the Commission propose an immigration code, and what will its main contents be?

The Court of Justice has recognised that search and rescue obligations are interlinked with external borders surveillance (Case C-355/10). The EU adopted rules in this field which governing only border control coordinated by Frontex. Do you intend to propose that such rules should apply to all Member States’ border controls as a general rule, by formally amending the Schengen Borders Code ?

What immediate and longer-term steps will the Commission take to address the death toll of migrants crossing the Mediterranean?

Will the Commission propose to amend the EU legislation on facilitation of unauthorised entry to confirm that anyone who saves migrants from death or injury during a border crossing, or who otherwise acts from humanitarian motives, is exempt from prosecution?

Internal Security and Police cooperation Continue reading “Future of EU migration, home and justice policies. Some questions to the new candidates commissioners..”

La nouvelle Commission Juncker et la JAI : que tout change pour que rien ne change ?

by Henri LABAYLE (CDRE)

Original published HERE

La composition de la nouvelle Commission a suscité nombre de commentaires dans les médias, souvent bienveillants sinon flatteurs. L’a priori favorable dont bénéficie son Président, Jean Claude Juncker, n’empêche pas de douter de leur bien-fondé en matière de Justice et d’affaires intérieures, à supposer d’ailleurs que ces commentaires se vérifient dans les autres domaines d’action de l’Union.

Après des discours encourageants semblant indiquer que les thèmes des valeurs de l’Union et de l’urgence migratoire avaient été pris en considération par le programme du candidat à la Présidence, le retour à la réalité est moins enthousiasmant. Sans procès d’intention, il faut se résoudre à penser que, non seulement le changement ici aussi n’est pas pour maintenant, mais qu’il n’est pas davantage dans l’esprit des dirigeants de l’Union.

On fera litière d’abord des éléments de communication habilement distillés dans les rédactions des grands médias européens, notamment via un document de presse intelligemment construit. En résumé, la nouvelle Commission serait aujourd’hui un animal « politique », par opposition à sa composition technocratique précédente. Cette option est résumée ainsi par son président : « les commissaires ne sont pas des fonctionnaires ». Est-on bien certain que l’inverse n’est plus vrai ?

Soit, même si à l’examen il est aisé de se rendre compte que nombre de ces politiciens ont plutôt leur avenir politique derrière eux (5 anciens premiers ministres, 4 vice-premiers ministres, 19 anciens ministres, 7 commissaires sortants, nous dit-on), à supposer parfois qu’ils en aient eu un. Reste alors l’habileté manœuvrière qui, si l’on se penche plus précisément sur la JAI, réclamera vraisemblablement davantage de solliciter celle de Jean Claude Juncker que de compter sur le dispositif proposé.

Quelle délimitation des composantes de l’Espace de liberté ?

Continue reading “La nouvelle Commission Juncker et la JAI : que tout change pour que rien ne change ?”

The new Juncker  Commission: an “Echternach procession” for the freedom security and justice agenda ?

by Emilio DE CAPITANI

Text Updated on September 11, 2014 

1. Jean-Claude Juncker, President-elect of the European Commission which should start working from November 1st has unveiled today its team, its main priorities and its new method. As far as the Freedom security and justice area related policies are concerned there are some interesting and some worrying messages arising notably from the “mission” letters sent to the vice-president and to the two Commissioneers which will be in charge of this sensitive domain.

Vice President Timmermans :the “right hand” of the King ?

2. The most interesting (and promising?) is the fact that the respect for the rule of law and of the Charter will be the main mission of the first vice President (M. Timmermans) who will be the “right hand”  of the Commission President and who will have a veto power on the legislative initiatives presented by anyone of the members of the College.

3. The future will tell us if the Vice Presidents coordinating role will be a serious one (as the Juncker formula seems to suggest) or will only be a cosmetic formula as it was when under the Prodi Commission, for the first time this organisational model was launched. For the VP it will not be an easy task as it will not be served by a General Directorate. Within an institution where more than 80% of the decisions are taken by written procedure and where the real coordination/negotiation is done at head of Cabinet’s level the lack of administrative troops could be a serious handicap. That having been said it is more than likely that VP Timmermans will be supported by the Commission Secretary General and by the Legal Service (even if both are directly linked to Mr Juncker). Again who between them will be the real leader is still to be verified.

Three steps forward…

4. Unlike his predecessor Sefcovic in the Barroso Commission who was also in charge of the “Better Regulation” policy Vice President Timmermans should ensure that every Commission proposal or initiative will comply with the Charter of Fundamental Rights. Moreover the mission letter fix a six months deadline to revise the consistency of the current legislation and states that  the new Vice President should “ensure that every Commission proposal or initiative complies with the Charter of Fundamental Rights”. Maybe this is a positive consequence of the fact that the Court of Justice does no more hesitate from striking down EU legislation when in contrast with the Charter (as it has been the case for the recent Data Retention Ruling). However some hot potatoes are already on the table such as the EU-PNR or the Smart Border package (Entry-Exit and registered traveller program) which will be hard to consider compliant with the principles of non discrimination and of data protection as outlined by the CJEU.

5. Moreover the mission letter establish a six months term to revise the legislation to be “RE-FITTED” in compliance with the new criteria set by President Juncker. Again, it will not be easy as already one month after the envisaged entry into force of the new Commission will end the transitional period for hundred measures in police and judicial cooperation adopted before the entry into force of the Lisbon Treaty (European Arrest Warrant, Prum Decisions and several framework decisions…) without any serious impact evaluation on fundamental rights.

6. VP Timmermans will also be in charge the accession of the EU to the ECHR and of the coordination of the Commission’s work related to the Rule of Law as well as on the Cooperation and Verification Mechanism for Bulgaria and Romania. These tasks in the previous Barroso Commissions were very often treated only at the legal service level and raise at political level only in very exceptional cases (as it has been the case with Hungary). The fact that the Juncker  Commission does not intend to hide under the carpet the tensions which could arise with some Member States when the rule of law is at stake (even if  this “..is also an area where we need to be sensitive to the diversity of constitutional and cultural traditions in the 28 Member States”) should then be welcome.

7. Again, unlike his predecessor Sefcovich, the new first vice president  Timmermans will also “.. guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs” and will “manage and coordinate the participation of the Commission in the Justice and Home Affairs Council“ which means that coordination will not be avoid formula. Let’s hope that thanks  to this coordinating role the tensions which have arisen between the two commissioners on Home and Justice in the previous legislature will remain a thing of the past.

..and two steps back..

8. That having been said the message arising from the missions of the two candidate Commissioners in charge of Justice, Home affairs and migration is more ambiguous.

9. First and foremost the mission of the Justice minister  which was in the previous mandates focused on the core of judicial cooperation in criminal matters (as it is the case in the Member states) is now much more oriented to civil justice, consumer protection and ..the digital market. These are all important issues but not exactly the core of the Justice policy which, in the Juncker vision looks ancillary  even to “…our jobs and growth agenda, including through an assessment of the performance of judicial systems in the context of the European Semester of economic policy coordination.” Is the new Commission afraid (as the European Council in its recent guidelines) of the judicial area of criminal law ?  In theory this should not be the case because the Justice Commissioner will also be in charge of “all the Commission’s work in criminal matters and reinforcing judicial cooperation in this field. Putting an independent European Public Prosecutor’s Office in place by 2016 will be a significant step forward to protect the EU budget from fraud.”

10. However this declaration is contradicted by the mission of the Commissioner in charge of  “Migration and Home Affairs” who should “robustly address the challenge of irregular migration”,  “step up the fight against cross-border crime and terrorism” and focus “… on the fight against crime with a clear link to EU policies, such as human trafficking, smuggling and cybercrime and helping to tackle corruption, also by strengthening police cooperation”.

11. Do all these objectives fall outside judicial cooperation in criminal matters ? Will the Home Commissioner be in charge of the future legislation on euro crimes as it has been the case already in the previous Barroso Commission when the legislative proposal on trafficking of human beings, confiscation , and sexual abuse have been proposed by the Home Commissioner instead of the Criminal Justice commissioner ?

11. Instead of a patchwork of partially overlapping competencies in criminal law would had not been much wiser to link more clearly the competencies of the two “operational” commissioners to the relevant legal basis in the Treaty (where judicial cooperation in civil and criminal matters are dealt by articles 81-86 and  police cooperation is dealt with by articles 87-89) ?

12. But the worst suprise is the confirmation of the link between  police cooperation and migration policies. Why migration is still considered a threat for the European Union so that it has to be dealt by the Ministry of interior ? Would not had been better to link the announced “new” portfolio of migration policy within the neighbouring policy or with the social policy or even to a new objective of “human mobility” where as it happens within the Schengen cooperation the right to freedom of movement of EU citizens and third country nationals are de facto coming closer  ?

13. The real outcome of the current configuration is a the growing role of the EU homeland security policy which will not only drive most of the future  legislation in criminal matters but will also drive (or be driven by?) the EU external security policy which still remain the main intergovernamental policy area after the Treaty of Lisbon. Last but ,ot least DG Home will now  manage some hundreds of millions of euros of research in the security domain.

14. Would had not been more logic (and compliant with the EU Charter) bringing together police and judicial cooperation under a rule of law perspective (as it is the case in the European Parliament with the LIBE committee) instead of creating spurious links between consumers policy with criminal justice and police cooperation with migration.

15. Moreover is the latter still considered a threat for the European Union to continue to be dealt by the Ministry of interior ? Would not had been better to link the announced “new” portfolio of migration policy with the neighbouring policy or with the social policy ?

16. Even the best of the Vice president will not be able to right up something which has been so badly designed and which mirror a typical Luxembourg procession in Echternach where people advance by making three step forward and …two step back.

———————-

ANNEX (text emphasized by me)

First Vice-President Frans Timmermans(150 kB)

10 September 2014

Jean-Claude Juncker, President-elect of the European Commission

Mission letter for  Frans Timmermans: First Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights

Dear Frans,

You are becoming a Member of the new European Commission at a particularly challenging time for the European Union. With the start of the new Commission, we have an exceptional opportunity, but also an obligation, to make a fresh start, to address the difficult geo-political situation, to strengthen economic recovery and to build a Europe that delivers jobs and growth for its citizens.

I want the new Commission to be a strong and political team. And I want you, with your political skills and experience, to fully play your part in this team.

We will have a lot to do in the years to come and we will have to show a united and clear sense of purpose from our very first day in office. In the Political Guidelines for the new European Commission that I presented to the European Parliament on 15 July, I set out a new Agenda for Jobs, Growth, Fairness and Democratic Change, focused on ten priorities.

I had discussed and developed this Agenda in detail in meetings with all the political groups in the European Parliament. The Political Guidelines are, therefore, somewhat akin to a political contract that I concluded with the European Parliament to mark the beginning of a new mandate and to prioritise the work of the new Commission.

I will be looking for your support, creativity and action to help deliver concrete results.

Following our recent discussions, I would like you to be my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

In this mission letter, I set out what I expect from you as a Member of the Commission as well as specific goals for which you will be responsible for reaching during our mandate.

A new way of working

Delivering the priorities of the Political Guidelines will require a reform of the way the Commission has operated up until now. Reform means change. I want us all to show that we are open to change and ready to adapt to it.

I want the Commission as a whole to be more than the sum of its parts.

I therefore want us to work together as a strong team, cooperating across portfolios to produce integrated, well-grounded and well-explained initiatives that lead to clear results.

I want us to overcome silo mentalities by working jointly on those areas where we can really make a difference. We cannot and should not do everything: I want the European Commission to be bigger and more ambitious on big things, and smaller and more modest on small things.

I also want us to focus our energy and efforts on ensuring effective implementation and follow-up on the ground. I count on you to play your part in this new collaborative way of working.

To facilitate this, I have decided to organise the new Commission differently from its predecessors.

I will entrust a number of well-defined priority projects to the Vice-Presidents and ask them to steer and coordinate work across the Commission in the key areas of the Political Guidelines.

This will allow for a better focus and a much stronger cooperation amongst Members of the College, with several Commissioners working closely together as a team, led by the Vice-Presidents, in compositions that may change according to need and as new projects develop over time.

To empower them to deliver on their priority projects, the Vice-Presidents will act on my behalf and will help exercise my rights and prerogatives in their area of responsibility.

In particular, the Vice-Presidents will be in charge of:

  • Steering and coordinating work in their area of responsibility. This will involve bringing together several Commissioners and different parts of the Commission to shape coherent policies and deliver results.
  • Assessing how and whether proposed new initiatives fit with the focus of the Political Guidelines. As a general rule, I will not include a new initiative in the Commission Work Programme or place it on the agenda of the College unless this is recommended to me by one of the Vice-Presidents on the basis of sound arguments and a clear narrative that is coherent with the priority projects of the Political Guidelines.
  • Managing and organising the representation of the Commission in their area of responsibility in the European Parliament, the Council, national Parliaments and other institutional settings as well as at international level.
  • Promoting a proactive and coordinated approach to the follow-up, implementation, and communication of our priority policies across the Union and internationally.

Respect for the principles of subsidiarity, proportionality and better regulation will be at the core of the work of the new Commission. We will concentrate our efforts on those areas where only joint action at European level can deliver the desired results. When we act, we will always look for the most efficient and least burdensome approach. Beyond these areas, we should leave action to the Member States where they are more legitimate and better equipped to give effective policy responses at national, regional or local level.

I will therefore pay particular attention to your opinion as my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, before including any new initiative in the Commission Work Programme or putting it on the agenda of the College. You will also be entrusted with the regular monitoring of procedures linked to the preparation of delegated and implementing acts to ensure full political ownership.

I will also pay particular attention to the opinion of the Vice-President for Budget and Human Resources as regards the impact of our activities on the financial resources and staff of the European Commission. We will have the privilege of being supported by an excellent, highly motivated European civil service and a professionally well-run administration, but its resources are limited and have to be used to best effect. This is also why I will want resources to be allocated to our priorities and to make sure that every action we take delivers maximum performance and value added.

I also want all Commissioners to ensure sound financial management of the programmes under their responsibility, taking all necessary measures to protect the EU budget from fraud.

Under my supervision, Vice-Presidents will be supported by the Secretariat General in their tasks but will primarily rely on close cooperation with the relevant Commissioners and the services that report to them.

In addition, Vice-Presidents will be able to draw on any service in the Commission whose work is relevant for their area of responsibility, in consultation with the relevant Commissioner.

With regard to the Union’s external action, I have launched a pragmatic partnership with the new High Representative of the Union for Foreign Affairs and Security Policy, who, according to the Treaties, is one of the Vice-Presidents of the Commission.

The new High Representative and I have agreed that she will play her role as a Commission Vice-President to the full. She will notably steer and coordinate the work of all Commissioners with regard to external relations through a Commissioners’ Group on External Action to develop a joint approach.

This Group will meet at least once a month in varying thematic and/ or geographic formats, according to the needs identified by the High Representative/Vice-President or by me.

The High Representative/Vice-President will regularly report back to me and the whole College about geopolitical developments. To liaise more effectively with the other Members of the College, we agreed that she will have her Headquarters in the Berlaymont, and that the Commission will put a Cabinet of an appropriate size at her disposal, about half of which will be Commission officials.

We also agreed that, whenever she sees the necessity to do so, she will ask the Commissioner for European Neighbourhood Policy and Enlargement Negotiations and other Commissioners to deputise in areas related to Commission competence.

Working together in this new way across the Commission should help ensure that the final decisions we take as a College are well-prepared and focused on what is important and that we are all equipped to explain and defend them. We will have to show a team spirit to make the new system work. Our success will depend on each and every one of you: on the team leadership of the Vice-Presidents and on the readiness of Commissioners to be strong team players. I would ask you all to work together to ensure that this new system works well.

The portfolio of the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights

As my first Vice-President, you will steer and coordinate the Commission’s work in the areas of Better Regulation, Inter-Institutional relations, the Rule of Law and the Charter of Fundamental Rights.

You will work closely with the other Vice-Presidents, and all Commissioners will liaise closely with you when it concerns the implementation of our better regulation agenda.

In addition, for initiatives requiring a decision by the Commission in their area of responsibility, you will guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs.

You will drive the Commission’s work on better regulation in order to maximise its contribution to our jobs and growth agenda, both by coordinating the Commission’s work and by promoting the principles of better regulation in the EU institutions and at national level.

You will also be responsible for strengthening and deepening the Commission’s relations with the other institutions and national Parliaments.

During our mandate, I would like you to focus on the following, in your role as Vice-President:

  • Coordinating the work on better regulation within the Commission, ensuring the compliance of EU proposals with the principles of subsidiarity and proportionality, and working with the European Parliament and the Council to remove unnecessary “red tape” at both European and national level. This includes steering the Commission’s work on the “Regulatory Fitness and Performance Programme” (REFIT) of EU legislation and ensuring the quality of impact assessments underpinning our activities. I will ask you to take stock of experience and report to the College within twelve months on how our approach to better regulation could be strengthened.
  • Ensuring that the special partnership with the European Parliament, as laid down in the Framework Agreement of 2010, is pursued with full commitment, and coordinating, on behalf of the Commission, the inter-institutional work on policy programming and better law-making.

I will ask you to discuss, within the first three months of the mandate, with the European Parliament and the Council, the list of pending legislative proposals and to determine whether to pursue them or not, in accordance with the principle of “political discontinuity”.

  • Coordinating and strengthening the interaction of all Commissioners with national Parliaments as a way of bringing the European Union closer to citizens and forging a new partnership with national Parliaments.
  • Ensuring that every Commission proposal or initiative complies with the Charter of Fundamental Rights.
  • Leading the dialogue between the European Commission and churches and religious associations or communities, as well as with philosophical and non-confessional organisations, in a transparent and regular manner.
  • Concluding the process of accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe.
  • Coordinating the Commission’s work related to the Rule of Law.
  • Coordinating the Commission’s work on the Cooperation and Verification Mechanism for Bulgaria and Romania.
  • Coordinating the work on transparency and preparing a proposal for an Inter-Institutional Agreement creating a mandatory lobby register covering the Commission, the European Parliament and the Council.

You will represent the Commission in the General Affairs Council and in negotiations on institutional issues. You will also manage and coordinate the participation of the Commission in the Justice and Home Affairs Council.

You will be responsible for the Commission’s relations with the European Economic and Social Committee and the Committee of the Regions, as well as with the European Ombudsman.

You will coordinate the work on audit and chair the Audit Progress Committee (APC). To help you fulfil these responsibilities, the Internal Audit Service (IAS) will report to you. The IAS should be gradually reinforced through the integration of the Internal Audit Capacities of individual Commission services.

Our principles: ethics and transparency

We must abide by the highest possible professional and ethical standards at all times. I want the European Commission to lead the way as a modern, efficient and transparent public administration, open to all input that helps us deliver work of a consistently high quality, in full independence and impartiality. Our conduct must be unimpeachable. You have received the Code of Conduct of the Members of the European Commission. I expect all of us to honour both the word and the spirit of the Code.

You will have seen that the Political Guidelines include a new commitment to transparency. Transparency should be a priority for the new Commission and I expect all of us to make public, on our respective web pages, all the contacts and meetings we hold with professional organisations or self-employed individuals on any matter relating to EU policy-making and implementation. It is very important to be transparent where specific interests related to the Commission’s work on legislative initiatives or financial matters are discussed with such organisations or individuals.

Working in partnership for Europe

The Commission’s partnership with the other EU institutions and the Member States, as defined in the Treaties, is fundamental. The Union only succeeds when everyone is pulling in the same direction: this is why we should work in the months to come to forge a common understanding between the institutions about what we want to achieve and how we will go about it.

The Commission’s relationship with the European Parliament is the source of our democratic legitimacy. This must, therefore, be a political and not a technocratic partnership. I expect all Commissioners to invest in this relationship and to make themselves available for and to take an active part in plenary sessions, committee meetings and trilogue negotiations.

The meetings with the parliamentary committees over the weeks to come will be an opportunity for you to lay the foundations for a productive working relationship, to explain how your work will contribute to joint political priorities, and to demonstrate your commitment and suitability for your broader role as a Member of the College.

Effective policy-making also requires a deep understanding of every one of the Member States, of their common challenges and of their diversity. While fulfilling your obligation to participate in Commission meetings and engage with the European institutions, I want you all to be politically active in the Member States and in dialogues with citizens, by presenting and communicating our common agenda, listening to ideas and engaging with stakeholders.

In this context, I want all Commissioners to commit to a new partnership with national Parliaments: they deserve particular attention and I want, under your coordination as my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, important proposals or initiatives to be presented and explained in national Parliaments by Members of the Commission. This should also allow us to deepen the country-specific knowledge within our institution and to build mutual understanding and effective channels of communication between the national and the European level.

***

The European Union has come through one of the most testing periods in its history.

The effects of the economic and financial crisis are still causing great hardship in many parts of Europe. We live in a Union with a 29th state of unemployed people, many of them young people who feel side-lined. Until this situation has changed, this 29th state must be our number one concern, and we have to be very determined and very responsible in carrying out our work as Members of this Commission.

I am looking forward to working with you on the new start that our European Union needs now.

Jean-Claude JUNCKER

Annex: Table of allocation of portfolios and supporting services 

As first Vice-President, in charge of Better Regulation, Inter-Institutional relations, the Rule of Law and the Charter of Fundamental Rights, Mr Timmermans will work closely with the other Vice-Presidents, and all Commissioners will liaise closely with him when it concerns the implementation of the better regulation agenda. In addition, for initiatives requiring a decision by the Commission in their area of responsibility, he will guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs.

Internal Audit Service (IAS)

————————————————

Jean-Claude Juncker, President-elect of the European Commission

Mission letter  for Vêra Jourová Commissioner for Justice, Consumers and Gender Equality

(EXCERPTS)

Dear Vêra,

You are becoming a Member of the new European Commission at a particularly challenging time for the European Union. …(see  general part of VP Timmermans letter)…

The Justice, Consumers and Gender Equality portfolio

You will be the Commissioner for Justice, Consumers and Gender Equality.

You will, in particular, contribute to projects steered and coordinated by the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, as well as the Vice-President for Jobs, Growth, Investment and Competitiveness and the Vice-President for the Euro and Social Dialogue.

For other initiatives requiring a decision from the Commission, you will, as a rule, liaise closely with the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

In the Political Guidelines, I underlined that our shared values are the foundation of the EU.

These are spelled out in the Treaties and in the Charter of Fundamental Rights, which underpins all our work. The EU needs to consistently respect and uphold the rule of law and fundamental rights. This is also an area where we need to be sensitive to the diversity of constitutional and cultural traditions in the 28 Member States.

A strong EU justice and consumer policy can build bridges between national legal systems and be a key part of reaping the full benefits of the Single Market, cutting red tape and facilitating cross-border business.

A sound and predictable justice system is also a prerequisite for economic growth and a business friendly environment.

During our mandate, I would like you to focus on the following:

  • Supporting the first Vice-President, in charge of Better Regulation, Inter-institutional Relations, the Rule of Law and the Charter of Fundamental Rights, in concluding the process of accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, in making sure that all Commission proposals respect the Charter of Fundamental Rights and in consolidating the Commission’s role in protecting the Rule of Law. You will also work with the High-Representative for the Union’s Foreign Policy and Security/Vice-President to promote our values in our external relations.
  • Ensuring that, within the scope of EU competences, discrimination is fought and gender equality promoted, including by exploring how to unblock negotiations on the Commission proposal for the Horizontal Anti-Discrimination Directive.
  • Contributing, as part of the project team steered and coordinated by the Vice-President for the Digital Single Market, to the realisation of a connected digital single market by ensuring the swift adoption of the EU data protection reform and by modernising and simplifying consumer rules for online and digital purchases.
  • Concluding negotiations on a comprehensive EU-U.S. data protection agreement which provides justiciable rights for all EU citizens, regardless of where they reside, as well as reviewing the Safe Harbour arrangement.
  • Reinforcing, as part of the project teams steered and coordinated by the Vice-President for Jobs, Growth, Investment and Competitiveness and the Vice-President for the Euro and Social Dialogue, the contribution of EU justice policies to our jobs and growth agenda, including through an assessment of the performance of judicial systems in the context of the European Semester of economic policy coordination.
  • Coordinating all the Commission’s work in criminal matters and reinforcing judicial cooperation in this field. Putting an independent European Public Prosecutor’s Office in place by 2016 will be a significant step forward to protect the EU budget from fraud.

To help you to fulfil these responsibilities, the Directorate-General for Justice (DG JUST) will report to you, with some adjustments, as indicated in the table annexed to this letter.

Our principles: ethics and transparency… (see correspondent chapter of Timmermans mission letter)…

———————–ANNEX

DG Justice (JUST)

The relevant parts of the Consumer, Health and Food Executive Agency (CHAFEA)

Responsible for relations with: The EU Agency for Fundamental Rights (FRA) The European Institute for Gender Equality (EIGE) The European Union Judicial Cooperation Unit (EUROJUST)

Changes for DG JUST: – Unit MARKT F2 (Corporate Governance, Social Responsibility) moves from DG Internal Market and Services (MARKT) to DG JUST. – Directorate SANCO B (Consumer Affairs) moves from DG Health and Consumers (SANCO) to DG JUST, except for Unit SANCO B2 (Health Technology and Cosmetics), which moves from DG Health and Consumers (SANCO) to DG Enterprise and Industry (ENTR). – Unit JUST B3 (Anti-Drugs Policy) moves from DG JUST to DG Home Affairs (HOME). – Unit JUST D3 (Rights of Persons with Disabilities) and the part of Unit JUST D1 (Equal Treatment Legislation) dealing with the Directive establishing a general Framework for Equal Treatment in Employment and Occupation, move from DG JUST to DG Employment, Social Affairs and Inclusion (EMPL

—————————————–

Mission letter for Dimitris Avramopoulos Commissioner for Migration and Home Affairs

Dear Dimitris,

(see first part of  mission letter to Vice President Timmermans )

The Migration and Home Affairs portfolio

You will be the Commissioner for Migration and Home Affairs. You will, in particular, contribute to projects steered and coordinated, in particular, by the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, as well as to the work of the High Representative of the Union for Foreign Affairs and Security Policy/Vice-President. For other initiatives requiring a decision from the Commission, you will, as a rule, liaise closely with the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

Migration is one of the pressing challenges I have highlighted in my Political Guidelines. Europe needs to manage migration better, in all its aspects. A successful migration policy is both a humanitarian and an economic imperative. We need to show that the EU can offer both a compelling case to attract global talent, and a vision of how to robustly address the challenge of irregular migration. We need a new policy on migration that will address skill shortages and the demographic challenges the EU faces and that will modernise the way the EU addresses these challenges.

The other priority of your portfolio will be to help the Member States to manage and secure Europe’s borders. The Common Asylum EU framework needs to be fully applied and operational.

We also need to step up the fight against cross-border crime and terrorism. The EU can make a key contribution to citizens’ security in an area with clear ramifications for freedom of movement and fundamental rights.

The focus should be on concrete operational measures where the action of the EU can have an impact – and where we can show that this does not compromise our commitment to fundamental rights and values.

During our mandate, I would like you to focus on the following:

  • Developing a new European policy on regular migration. Such a policy should help Europe address skills shortages and attract the talent that it needs. A first step will be to address the shortcomings of the “Blue Card” Directive: I would ask for a first review to be concluded within six months of the start of the mandate. Further steps will require reflection on the best ways to make the EU an attractive place for migration destination, on the basis of other existing models.
  • Boosting the effectiveness of the European border agency FRONTEX by developing a system to pool resources from Member States. We need to be able to put European Border Guard Teams into action quickly, with the participation of all Member States as a rule.
  • Working to ensure the full and consistent implementation of the Common European Asylum System. We should look at an extended role for the European Asylum Support Office, with a particular focus on working with and in third countries. We should also develop a strategy for improving our response to emergency situations.
  • Working with the High Representative of the Union for Foreign Affairs and Security Policy/VicePresident and the Commissioner for International Cooperation and Development on ways to improve cooperation with third countries on these aspects, including on readmission.
  • Focusing on the fight against crime with a clear link to EU policies, such as human trafficking, smuggling and cybercrime and helping to tackle corruption, also by strengthening police cooperation.
  • Identifying where the EU can make a real difference in fighting terrorism and countering radicalisation, ensuring the respect of fundamental rights. We should be able to define operational measures which can have a concrete impact on issues such as “foreign fighters”.
  • Working closely with the High-Representative of the Union for Foreign Affairs and Security Policy/Vice-President, the Commissioner for International Cooperation and Development and the Commissioner for Trade to strengthen the EU’s strategic partnership with Africa.

To help you fulfil these responsibilities, the Directorate-General for Home Affairs (DG HOME) will report to you, with some adjustments, as indicated in the table annexed to this letter.

Our principles: ethics and transparency …(see third part of the general letter)…

 ANNEX – (Administrative adjustments)

DG Home Affairs (HOME) The relevant parts of the Research Executive Agency (REA)

Responsible for relations with: The agency for the management of large IT systems (EU-LISA) The European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX) The European Asylum Support Office (EASO) The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) The European Police Office (EUROPOL) The European Police College (CEPOL)

Changes for DG HOME: – Unit ENTR G4 (Policy and Research in Security) moves from DG Enterprise and Industry (ENTR) to DG HOME. – Unit JUST B3 (Anti-Drugs Policy) moves from DG Justice (JUST) to DG HOME.

The Missed Opportunity of the “Ypres Guidelines” of the European Council Regarding Immigration and Asylum

Written by Philippe De Bruycker on July 29, 2014.
ORIGINAL Posted in EU, EU Migration Policies

The European Council of 26 and 27 June 2014 had to define the strategic guidelines for the legislative and operational planning within the Area of Freedom, Security and Justice for the next period (2014-2020 in line with the EU financial perspectives). It did so by also adopting a “Strategic Agenda for the Union in times of change” consisting of five priorities among which was a “Union of Freedom, Security and Justice”.

As no other name had been used, we called them the “Ypres Guidelines” because this was the Belgian city chosen by the President of the European Council to hold the summit commemorating World War 1. The Ypres guidelines succeed the Tampere conclusions (1999), The Hague programme (2004) and the Stockholm programme (2009) with which the European Council laid down the foundations and indicated the main directions for the development of the Area of Freedom, Security and Justice.

The preparatory discussion of these guidelines took place in a climate in which most stakeholders and observers considered that times have changed and a new programme was no longer necessary because the Area of Freedom, Security and Justice had reached a stage of maturity with the adoption of many legal and policy instruments. Following that line, the emphasis had to be put on the correct transposition of EU directives and the effective implementation of the instruments in place. The new guidelines reflect that priority but their added value is extremely limited. They constitute mainly a collection of previous general statements without commitment, as is the case with the guidelines on integration, return, resettlement, Frontex and the link between the internal and external dimensions of the immigration and asylum policy.

Even guideline n°3 on the main priority relating to the transposition and implementation of existing instruments is rather weak as it is silent on the crucial issue of how they should be evaluated and could therefore remain dead letter, which has already been the case in the past (see in particular a Commission Communication of 28 June 2006 followed by Council conclusions of 19 June 2007 , which were never implemented).

Contrary to guidelines n°8 on irregular migration and n°9 on external borders, one will also notice that guidelines n°6 and 7, on legal migration and asylum respectively, are not accompanied by specific requests. This reflects the true priorities of the EU and puts into evidence the disequilibrium between the different components of its migratory policy.

Despite their weaknesses, the Ypres guidelines may generate a lively academic debate as shown by the complete opposition between our own analysis and that of the Ceps, overestimating from our point of view their content considered as “a subversion of (a so-called) Lisbonisation of Justice and Home affairs”.

A quick review of the more specific guidelines leads us to formulate the following remarks:

Guideline n°7 focuses on highly skilled migration without requesting a revision of the so-called “Blue Card” directive on the admission of highly skilled workers like the new President of the Commission rightly did immediately. The implicit consideration that the EU does not need low or unskilled migration is also questionable when looking at the number of illegal migrants working in the European Union;

Guideline n°8 on asylum is characterised by a narrow understanding of the Common European Asylum System (CEAS) reduced to the harmonisation process of Member States’ legislations and by the willingness to give asylum seekers the “same procedural guarantees and protection throughout the Union”, which, contrary to the general assumption on which the guidelines are built that no new legislation is necessary, would require legislative changes to the existing norms.

This guideline is however visionary by requiring a reinforcement of the European Asylum Support Office (EASO) at the core of the emerging bottom-up approximation process of Member States’ practices, which is indispensable to complete the top-down legislative harmonisation undertaken in order to build a truly Common Asylum Policy. But this will once again require amending regulation 439/2010, which is the legal basis of the EASO… Reference to the mutual recognition of positive asylum decisions has unfortunately been deleted despite the requirements of the Treaties. This actually shows the level of distrust between the Member States;

Curiously, guideline n°8 on irregular migration mixes the root causes approach of migration with cooperation with third countries of origin and of transit of migrants in the field of migration and border management, while it is certainly necessary to prioritise the fight against smuggling and not just trafficking as has been the case. The worst point is the link established between those elements and the diminishing loss of lives of migrants in the Mediterranean. The European Council hopes that, in this way, it will save lives in the future, but for the moment and for many years, if not decades, to come it actually leaves the migrants to drown alone in the sea…

Guideline n°9 on external borders expresses the support of the European Council for the creation of the “Smart Borders” databases (the entry-exit system and the registered traveler programme) – which is not neutral as this is still a controversial issue (in particular with the European Parliament) – as well as support for the reinforcement of Frontex, which shows the contradictions between the European policies because the budget of this agency decreased between 2013 and 2014;
The second part of guideline n°9 on visas reflects the recent change in the perception of this policy in economic terms and requires its modernisation by facilitating legitimate travel. Unfortunately, the European Council only envisages a reinforcement of the local cooperation between the Schengen consulates, while it is the missing European institutional framework of that policy which needs to be invented;

It is difficult not to be disappointed by the Ypres Guidelines, on which it has been easy to build a consensus because they lack real content as noticed by another watchful observer of the EU policies on migration and asylum.

Their lack of ambition is confirmed in comparison with the proposals put forward by the Commission in a Communication entitled “An open and secure Europe: make it happen” of 11 March 2014, envisaging among other elements a platform for the exchange of information between Member States on labour market needs, a single area of migration based on mutual recognition rather than harmonisation and the creation of Schengen Visa Centres. Let us not even speak of future challenges that have been insufficiently taken into consideration, such as the concrete implementation of the principles of solidarity and fair sharing of responsibilities between Member States, or even completely ignored, such as the mobility of third-country nationals.

The Ypres guidelines could be a paradoxical turning point with no guidance given by the European Council at the moment it proclaims the Union of Freedom, Security and Justice as one of the top five priorities of the EU. This draw-down of the European Council is not neutral from an institutional point of view.

The Commission could be seen as the winner of the process because, with such guidelines, its new members will be freer than they have previously been to set the future agenda of the EU. This could, however, be a pyrrhic victory as the Commission may have lost the political support of the European Council it precisely needs in its daily face to face with the Council of Ministers for Justice and Home Affairs, which has until now been the more reluctant institution in the building process of the Area of Freedom, Security and Justice.

Let us hope that this episode does not announce the beginning of the decline of EU immigration and asylum policies , which could enter into a phase of stagnation focused on daily business despite the twists and turns they may create on the political agenda because of the media coverage of some events.

The fact that the question “What to do now?” came up immediately after their adoption shows not only the absence of real content in these guidelines, but also that the moment chosen for their adoption was not the right one.

Despite the protests of the European Parliament, the European Council decided to maintain its agenda as foreseen, with the consequence that the guidelines were prepared by a Commission and a President of the European Council who were finishing their mandate, and without a Parliament able to contribute to the process because of the elections.

The publication by the EU Italian Presidency on 1 July 2014 of several papers to reflect on the priorities of the Union of freedom, security and justice confirms that the Ypres guidelines will probably be quickly forgotten.

The new Commission, particularly as one of its members will be specifically in charge of migration, could be tempted to present a brand-new and complete programme. It is, however, unlikely that the Member States would appreciate the Commission devising its own programme for the EU just after having been told that such technique was outdated. Therefore, one way out could be to elaborate on the basis of the Ypres guidelines with a much more complete and detailed action plan to be adopted jointly with the Council of Ministers, such has been the case with the action plan implementing The Hague programme. This would also be an occasion to involve more closely the new European Parliament and the members of its Libe Committee in the definition of the agenda in order to build an inter-institutional consensus around sensitive policies that need as much political support as possible.

By Prof. Philippe De Bruycker, Deputy Director of the Migration Policy Centre at the RSCAS/EUI The views expressed by the authors are not necessarily the views of the Migration Policy Centre.

1rst December 2014 is approaching: will the EU’s “creative ambiguity” on police and judicial cooperation in criminal matters finally draw to an end ?

Also published on EU Blog analysis as :“Metamorphosis of the third pillar: The end of the transition period for EU criminal and policing law”

by Emilio De Capitani

On 1st December 2014, after five years of “legal gestation”, the previous “third pillar” of EU law will finally transform itself from an intergovernmental larva into a supranational butterfly. But will this really ensure a coherent policy, correctly applied by Member States and in full compliance with human rights?

More precisely, in compliance with Article 10 of Protocol 36 to the Treaties (1), added by the Lisbon Treaty, all the EU measures dealing with police and judicial cooperation in criminal matters adopted before the entry into force of the Lisbon Treaty will be treated like all the other EU legislative measures as far as the jurisdiction of the CJEU is concerned. Their transposition should be verified on the ground and, in case of problems, the Commission will be entitled to bring the Member States to the CJEU, which will also have the power to interpret these measures following references for a preliminary ruling from all national courts (only some national courts can send questions at present).

Moreover, with the end of the last transitional period for the Area of Freedom Security and Justice (AFSJ) it will be possible on the basis of real and transparent data to decide if dozens of measures (such as the European arrest warrant or the PRUM decision) which have been negotiated in a different political and legal context should be revised to comply with the new EU constitutional framework.
Quite surprisingly the aforementioned deadline – which will inevitably have a profound impact on the Member States’ policies and on the rights of the EU citizens – is approaching without any sort of public debate by the civil society, the national parliaments or the academia.

Even at EU level during the last Justice and Home affairs Council where the point was on the agenda no delegations took the floor nor the recent European Council referred to it in the Guidelines framing the future of the freedom security and justice area.

UK opt-in, opt-out and re-opt-in…

Why this silence? It is more than likely that such a “diplomatic” reserve and understatement are due to the fact that the UK is currently negotiating with the Council and the Commission which will be its final position on the former EU third pillar measures. (see here) It is was indeed to comply with the UK’s “red lines” that in October 2007 in the final phase of the Lisbon Treaty negotiations, a five year period freezing the Commission and CJEU enforcement powers was inserted in Protocol 36 (transitional measures).

At that time the UK government’s aim was (and probably still is) to protect its common law systems, and its police and judicial processes from the risk of the CJEU’s “judicial activism”. According to a House of Lords report, the UK Government asked it because the “vast majority” of pre-Lisbon police and judicial cooperation (PCJ) measures were not drafted with CJEU jurisdiction in mind and had often been agreed at the “lowest common denominator” in order to secure unanimity. As a result, much of the drafting was “not of a high standard and may be open to expansive interpretation by the ECJ” (see point 91 of House Of Lords Report “EU police and criminal justice measures: The UK’s 2014 opt-out decision” HL Paper 159).

Very skilfully the UK also obtained in the same Protocol the right to opt out from all the former third pillar measures before May 2014 as well as the possibility of a second thought, after December 1st 2014 of agreeing with the Council (for Schengen related measures) and with the Commission a new opt-in on some (or all) the former third pillar measures. However, according to Protocol 26 the UK re-opt-in could be granted only “without seriously affecting the practical operability” of the third pillar measures and by “respecting their coherence”.

Last year the UK Government submitted to the Council its Opt-Out decision and is now informally negotiating the possible re-opt-in for around 35/37 third pillar measures (see here)

It is too early to know which will be the result of the EU-UK negotiations. However if the Council and the Commission will accept the UK re-opt-in request (which for some measures can be delayed after the end of 2015) the situation will not be extremely different from the one existing before the block opt-out – except that the UK will now be subject to the Commission and CJEU enforcement powers.

The difficult quest of the former third pillar acquis ….

The UK’s (and Denmark’s) peculiar situation aside, the definition of the pre-Lisbon acquis for police and judicial cooperation in criminal matters will be extremely important also for the other EU member States and, quite probably for the European Parliament (EP) and for the national parliaments. The EP is, since the end of 2009, a co-legislator also for police and judicial cooperation in criminal matters but will not be associated with the implementation of Protocol 36. As for national parliaments, they will now share with the EP wide scrutiny powers (Articles 70, 71 85 and 88 TFEU) on these policies, and will at last have the opportunity to check what happened in the EU outside their national borders and even more inside their national territory. Maybe the December 1st deadline could then be an occasion at least for some of them to verify if these EU measures have been correctly transposed and, if they have to be amended (as it still possible for measures such as Europol and Eurojust which are currently renegotiated at EU level).

A revised list of the former third pillar measures has been recently established by the Commission in cooperation of MS representatives. The 123 measures currently covered by Protocol 36 are very diverse: some of them are of quasi legislative nature (such as the Framework Decisions) some others (such as the international agreements or Conventions, and the Council Decision) even if not legislative, are binding, and some others are of uncertain nature as it is the case for the “Joint Actions” adopted under the Maastricht Treaty regime.

As far as the content is concerned these measures deal with:

– mutual recognition of national decisions (such as the European Arrest Warrant (EAW) the European Supervision Order, the mutual recognition of freezing orders; fines; confiscation orders, probation orders; and of prison sentences…);
– harmonization of the definitions of certain criminal offenses and minimum penalties;
– criminal procedures;
– cross-border cooperation, in particular between police and law enforcement agencies, including the exchange of information and the investigation of crime;
– EU agencies (Europol, Eurojust and the European Police College (CEPOL));
– agreements with third countries on information sharing, mutual legal assistance and extradition
The Commission’s list is not final because between now and December 1st some of the measures could still be replaced by texts currently under negotiation. Moreover the Commission has also announced that some of them – which can be considered obsolete – will be repealed.

…the problem of their transposition and operability …

To assess the “operability” of these measures the European Commission has to verify if they have been correctly transposed by the Member States. The Commission is already collecting the relevant information even if it is not yet entitled to open infringement procedures in case of non compliance by the Member States.

It is worth recalling that in some cases (such as for the European Arrest Warrant) the Commission has already submitted several implementing reports. For other cases, the Commission has only recently adressed to the Member States some pre-alert communications which should be taken in account to avoid judicial proceedings after December 1st 2014.

The first pre-alert Commission report deals with the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention. These Framework Decisions (FD) have to be seen as a package of coherent and complementary legislation that addresses the issue of detention of EU citizens in other Member States and has the potential to lead to a reduction in pre-trial detention or to facilitate social rehabilitation of prisoners in a cross border context (see here).

The first FD (transfer of Prisoners) allows a Member State to execute a prison sentence issued by another Member State against a person who remains in the first Member State. On the other hand, it establishes a system for transferring convicted prisoners back to their Member State of nationality or habitual residence (or to another Member State with which they have close ties) to serve their prison sentence. Article 25 of the Transfer of Prisoners FD in conjunction with Article 4(6) and 5(3) of the European arrest warrant, allows a Member State to refuse to surrender its nationals or residents or persons staying in the latter if the other Member State undertakes to enforce the prison sentence in accordance with the same FD.

The second FD (Probation and Alternative Sanctions) applies to many alternatives to custody and to measures facilitating early release (e.g. an obligation not to enter certain localities, to carry out community service or instructions relating to residence or training or professional activities). The probation decision or other alternative sanction can be executed in another Member State, as long as the person concerned consents.

The third FD (European Supervision ) concerns provisional release in the pretrial stage. It will enable a non-custodial supervision (e.g. an obligation to remain at a specified place or an obligation to report at specified times to a specific authority) to be transferred from the Member State where the non resident is suspected of having committed an offence to the Member State where he normally resides. This will allow a suspected person to be subjected to a supervision measure in his home Member State until the trial takes place in another Member State, instead of being placed into pre-trial detention.

It is worth recalling that at the time of the Commission Communication, well after the relevant deadlines, respectively 10, 14 and 16 Member States have not yet transposed the Framework Decisions.

Another pre-alert Commission report deals with the implementation of the Framework Decision 2008/675/JHA of 24 July 2008 on taking into account of convictions in the Member States of the European Union in the course of new criminal proceedings. This Framework Decision aims to ensure that similar legal effects are given to domestic convictions and convictions from other Member States. Its article 3 is based on the principle of simple assimilation of convictions and imposes as a matter of principle that the legal effects of foreign convictions must be equivalent to the legal effect of domestic convictions. More than 3 years after the implementation date, 6 Member States have yet to notify the measures transposing the obligations of this Framework Decision: BE, ES, IT, LT, MT and PT.

A third pre-alert Commission report deals with the Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of jurisdiction in criminal proceedings. This FD addresses the situations where potentially several Member States are competent to conduct criminal investigations in respect of the crime and proceedings against the alleged perpetrators. This poses challenges not only in terms of coordination and effectiveness of criminal prosecutions, but also with regard to respect for the fundamental principle of criminal law, also enshrined in the Charter of Fundamental Rights of the European Union (“the Charter”), that a person may not be prosecuted and convicted twice for the same offense (Ne bis in idem). More than 1 year after the implementation date, 13 Member States yet to notify the measures transposing the obligations of this Framework Decision: BG, DK, EE, EL, ES, FR, IE, IT, LT, LU, MT, SE and the UK. Seven Member States informed the Commission of the process of preparing relevant transposition measures at national level (BG, EL, ES, FR, LT, MT and SE). However, none of these Member States adopted the measures or notified the Commission at least before April 2014.

In all these pre-alert Communications the Commission has abundantly made clear that the non-implementation of the Framework Decisions by some Member States is problematic since those Member States who have properly implemented the Framework Decisions cannot benefit from their co-operation provisions in their relations with those Member States who did not implement them in time. As a consequence, when cooperating with a Member State who did not implement in time, even those Member States who did so will have to rely on the random and often lengthy practice of traditional mutual legal assistance in criminal matters without a reliable guarantee of a timely detection of bis in idem cases, which should already take place at early stages of criminal proceedings. Such a practice increases significantly a risk of double jeopardy.

…and the problem of their “coherence” and compliance with the EU Charter.

But the priority for the EU legislator in the coming months should be to verify if the former third pillar measures which were negotiated without taking in account the now binding Fundamental rights Charter are consistent with the new EU institutional and legal framework.

Even if some scholars and politicians try to sell the idea that there is a substantial continuity between the pre Lisbon and Post Lisbon era this is certainly not the case for the AFSJ, where the entry into force of the Charter has marked a clear change of perspective. A proof of this has been recently offered by the recent CJEU jurisprudence in the asylum domain where the presumption of compliance with fundamental rights by another Member State has been considered rebuttable in circumstances where fundamental rights are under threat (CJEU Judgment in NS) or to recall the data retention judgment, where the EU data retention Directive was annulled for violation of the principle of proportionality and of the Charter. If this is the position of the CJEU how many of the 123 measures in the Commission list will require a substantial revision to be considered “coherent” with the new post – Lisbon legal and constitutional framework?

Please don’t throw out real rights for fake security…

Pre-Lisbon measures should also be subject to the parliamentary scrutiny at European and national level as it is required since five years by Article 70 of the TFEU (2) . They should also be effective as they can affect EU citizens’ security and fundamental rights. However it is difficult to ascertain if the interference with EU citizens’ rights has been proportionnate and effective. As the post-Snowden saga has now abundantly showed, “intelligence led policing” and “operational cooperation” cover practices which can be extremely intrusive without offering clear results to the European and/or to the national parliaments.
Moreover what is even more worrying is that parliamentarians do not examine whether their country is playing any role in the so called EU “Internal security strategy” (see the latest Commission report here) or in the so called “policy cycle” which are less transparent than the “joint actions” negotiated under the Maastricht regime… Are these “soft law” initiatives still justified forty years after the first TREVI cooperation was launched in these domains? Or, after Lisbon, can the EU citizens expect from the EU and its Member States a legislative framework which can at the same time deliver effective security and protect fundamental rights?

This was announced by the new treaties and by the Charter five years ago and what EU citizens are deemed to obtain; it is then the duty of the incoming Commission and of the newly elected European Parliament to do what the European Council didn’t dare to propose.

NOTES
(1) PROT. 36 (Transitional Measures) Article 10
1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.
2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.
3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.
4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.
The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.
5. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.

(2) Article 70 TFEU

Without prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States’ authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.

Steve PEERS :New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Introduction

A new EU Regulation, published on EU’s Official Journal of June 27th , sets out new rules on maritime surveillance and rescue operations coordinated by Frontex, the EU’s borders agency. What effect will these rules have on reducing the tragic death toll of migrants in the Mediterranean? And what will happen to the asylum claims of those rescued or intercepted in the high seas?

These new rules are a response to the continued argument that the EU must bear at least some of the blame for the deaths of migrants in the Mediterranean. Furthermore, Member States’ authorities and Frontex have often been blamed for violent behaviour or ‘push-backs’: the forced return of migrants’ vessels to unsafe countries, which were condemned by the European Court of Human Rights in its 2012 judgment in Hirsi v Italy.

The Regulation replaces prior rules adopted by the Council alone in 2010, in the form of a Decision implementing the Schengen Borders Code,which was annulled by the Court of Justice of the European Union (CJEU) after the European Parliament (EP) challenged it on procedural grounds. According to the Court, an EU act concerning human rights and coercive measures had to be adopted by means of the EU’s legislative process.

That meant that the European Commission had to propose a legislative measure, which it did in April 2013. At first, a hard-line group of Member States opposed most of the provisions in this proposal concerning search and rescue and disembarkation (ie the rules on the destination of migrants who were intercepted and rescued), even after the particularly tragic loss of 300 migrants’ lives in autumn 2013. However, these Member States relented, and the European Parliament also pressed to retain and improve upon the Commission’s proposal.

The new Regulation was subsequently agreed, and will come into force on 17 July. But does it mean that the EU will be doing enough to address the loss of life and push-backs in the Mediterranean?

This post addresses these issues in turn, and concludes with an assessment of the issue of the accountability of Frontex. It is an updated and amended version of a previous Statewatch analysis on the new rules.

Search and rescue Continue reading “Steve PEERS :New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?”

Europe v Facebook: the beginning of the end for NSA spying on EU citizens?

Original published on EU LAW ANALYSIS
Wednesday, 18 June 2014

by Steve Peers

Since the revelations about the extent of spying by the American National Security Agency (NSA) revealed by Edward Snowden, doubts have increased about the adequacy of the data protection regime in the United States, in particular as regards its impact on EU citizens, who are subject to the more favourable regime established by the Data Protection Directive. One aspect of these doubts concerns the ability of the NSA to examine the content of communications processed by social media companies based in the USA, such as Facebook.

Today’s decision by the Irish High Court to send questions in the ‘Europe v Facebook’ case to the CJEU raises the possibility that the NSA’s access to EU citizens’ personal data might soon come to an end. But it’s not clear if the CJEU will address the most essential issues directly, because the case raises a number of complex legal issues that need to be examined in more detail.

As a starting point, the basic legal regime governing transfers to Facebook is the ‘Safe Harbour’ system, which takes the form of a Commission Decision finding that all American companies certifying their participation in a system for complying with basic data protection principles maintain an ‘adequate’ level of data protection. This is one of the ‘adequacy decisions’ that the Commission can make pursuant to the rules on the data protection Directive on transfers of personal data outside the EU (see further my recent blog post on the planned reforms to this system). Despite the doubts arising from the Snowden revelations, the Commission’s most recent report on the Safe Harbour system did not suggest that the system should be abandonned

Not everyone accepts these assertions, however. An Austrian citizen, Mr. Schrems, complained about the transfer of his personal data as a Facebook user pursuant to the Safe Harbour rules to the Irish data protection authority, which was competent in this matter because Facebook has a subsidiary in Ireland. The national authority argued that it could not take a decision on this complaint, because it was bound by the Commission’s decision. Moreover, it argued that the complaint was ‘frivolous’.

Mr. Schrems then challenged the authority’s decision before the Irish High Court. In its ruling today, the national judge therefore decided to send a question to the CJEU. Essentially, the question is whether the national data protection authority is bound by the Commission’s Decision, and whether that authority can conduct its own examination.

The first obvious question in this case is whether the American system infringes EU data protection law. Basing itself on the recent Digital Rights judgment of the CJEU, in which that Court ruled that the EU’s data retention Directive was invalid, the national court clearly believes that it does. While acknowledging the important anti-terrorist objectives of the law, the judge, when examining national constitutional law states that it is ‘very difficult’ to see how such mass surveillance ‘could pass any proportionality test or survive any constitutional scrutiny’. Indeed, such surveillance has ‘gloomy echoes’ of the mass surveillance carried out in ‘totalitarian states such as the [East Germany] of Ulbricht and Honeker’.

The judge equally believes that the US system is a violation of EU law, with no adequate or accessible safeguards available to EU citizens, and no consideration of EU law issues built in to the review process that does exist.

Is this analysis correct? There are two fundamental issues here which the national court doesn’t consider: the scope of the data protection directive, and the derogations from that Directive. On the question of scope, the CJEU previously found in its Passenger Name Records (PNR) judgment that the EU/US agreement which provided for the transfer of data from airlines to the US authorities was outside the scope of the data protection Directive, because it regulated essentially only the activities of law enforcement authorities, and the Directive does not apply to the ‘processing of personal data…in the course of an activity which falls outside the scope’ of EU law, such as…public security, defence, State security…and…criminal law’. On the other hand, the CJEU ruled that the data retention directive was correctly based on the EU’s internal market powers, since it essentially regulated the activity of private industry, albeit for public security objectives. While in this case, it might be argued that the American law in question falls within the first type of law, the Safe Harbour agreement clearly falls within the second. So it is a sort of hybrid question, but on balance the issue falls within the scope of the Directive, since the measure at issue is essentially the Safe Harbour agreement.

Secondly, the external transfer rules in the EU Directive do not refer expressly to the issue of derogations from data protection rights on public security grounds. Yet presumably some such derogations can exist, given that the Directive itself provides for public security derogations as regards the standard EU rules. Surely the security exceptions applied by third countries don’t have to be exactly the same as those applied by the Directive. But some form of minimum standard must apply. For the reasons set out by the national judge, however, there is a strong argument that the US rules fall below the standard of anything which the EU can accept as ‘adequate’.

Because the national judge takes these two issues for granted, there is no question sent to the CJEU on whether the American regime is either within the scope of the Directive, or violates the minimum standards of adequacy which the EU can accept as regards third states. But both these issues are absolutely essential in the debate over the post-Snowden relationship between the US and EU. It would therefore be desirable if the CJEU addressed them nonetheless.

Next, another problematic issue here is which set of EU data protection rules should apply: the external transfer rules, or the more stringent standard rules? The national court, along with the data protection authority, applies the external transfer rules, given Facebook’s certification under the Safe Harbour system. However, it is doubtful whether this is correct.

As is well known, in the recent Google Spain judgment, the CJEU ruled that the standard rules applied to Google’s search engine function, given that it had an ‘establishment’ in Spain, according to the Court’s interpretation of the rules. As I then argued on this blog, it probably follows from that judgment that the standard rules apply at least to some social networks like Facebook. In any event, the issue will arise again when the revised jurisdiction and external transfer rules, mentioned above, apply. However, the complainant and the national court assume that the external transfer rules apply. Perhaps the CJEU should also examine this issue of its own motion.

Another problematic issue is the question of how to challenge the inadequacy of data protection in practice in the US, which is the subject of the only question sent to the CJEU. The Safe Harbour agreement addresses this point directly, since it allows national data protection authorities to suspend data transfers as regards an individual company, in accordance with existing national law, if either the US government or the US enforcement system has found a violation of that agreement, or if:

there is a substantial likelihood that the Principles are being violated; there is a reasonable basis for believing that the enforcement mechanism concerned is not taking or will not take adequate and timely steps to settle the case at issue; the continuing transfer would create an imminent risk of grave harm to data subjects; and the competent authorities in the Member State have made reasonable efforts under the circumstances to provide the organisation with notice and an opportunity to respond.

However, Irish national law does not provide for such a system, but simply sets out an irrebutable presumption that the Commission’s adequacy decision is sufficient. This rule may well have played a part in convincing Facebook and the subsidiaries of other US companies to set up in Ireland in the first place.
The challenge argued that the national data protection authority nevertheless had to exercise such powers, and so the national judge asked only whether this was possible. Logically, there can be only one answer, by extension from the NS judgment: Member States cannot create an irrebutable presumption that prevents the exercise of Charter rights, so the national data protection authority must have the powers in question.

In the alternative, or arguably additionally, it must be possible to challenge the validity of the Commission’s adequacy decision in the national courts, which would then have an obligation, if they thought that challenge was well-founded, to send questions on that point to the CJEU. (See the Foto-Frost judgment).

The next problematic issue is the role of the national constitutional protection for human rights. Clearly the national judge believes that the American system breaches the protection for the right to privacy guaranteed in the Irish constitution. Nevertheless, the national court proceeds to examine the issue primarily from the perspective of EU law. So if the CJEU rules against the challenge to the American law on the merits, or does not address those merits for procedural reasons, should the national court proceed to apply Irish law?

In principle, national constitutional law cannot apply here, since EU law, as the national court recognises, has extensively harmonised this issue. This means that, according to the Melloni judgment of the CJEU, only the EU’s human rights standards, in the form of the Charter, can apply. National constitutional standards cannot. But national courts in Ireland (and elsewhere) might be unwilling to accept that outcome.

National law would only apply if the CJEU rules that this issue falls entirely outside the scope of the Directive, as discussed above. If, on the other hand, the processing falls within a public security derogation from the Directive, the EU Charter would apply, by analogy with the CJEU’s recent judgment in Pfleger (discussed here), in which it ruled that the Charter applies to national derogations from EU free movement law. This parallels the argument (discussed here) that national data retention law falls within the scope of EU law, following the Digital Rights judgment, because it is a derogation from the EU’s e-privacy Directive.

Finally, the consequences of any future finding by the national data protection authority that transfers under the Safe Harbour decision must be suspended as regards Facebook must be considered. Assuming that the US had not changed its law in the meantime, Facebook would have a dilemma: should it comply with its US legal obligations, or face the suspension of transfers of data from Europe? Possibly it could avoid this dilemma by ensuring that it only processed EU residents’ data within the EU, potentially avoiding the scope of US law. But this might be expensive, and in any event the US might seek to extend the scope of its law to cover such cases. These issues would inevitably arise for other major US companies as well.

Any real prospect that Facebook transfers from the EU might be blocked would cause a major earthquake in EU/US relations, making the concerns about the recent Google Spain judgment look like a minor tremor. It may be that the only solution is for the US to take more seriously its ongoing discussions with the EU on data protection issues, with a view to reaching a solution that reconciles its security concerns with the basic principles of privacy protection.

Europe v Facebook: the beginning of the end for NSA spying on EU citizens?

Original published on EU LAW ANALYSIS
Wednesday, 18 June 2014

by Steve Peers

Since the revelations about the extent of spying by the American National Security Agency (NSA) revealed by Edward Snowden, doubts have increased about the adequacy of the data protection regime in the United States, in particular as regards its impact on EU citizens, who are subject to the more favourable regime established by the Data Protection Directive. One aspect of these doubts concerns the ability of the NSA to examine the content of communications processed by social media companies based in the USA, such as Facebook.

Today’s decision by the Irish High Court to send questions in the ‘Europe v Facebook’ case to the CJEU raises the possibility that the NSA’s access to EU citizens’ personal data might soon come to an end. But it’s not clear if the CJEU will address the most essential issues directly, because the case raises a number of complex legal issues that need to be examined in more detail.

As a starting point, the basic legal regime governing transfers to Facebook is the ‘Safe Harbour’ system, which takes the form of a Commission Decision finding that all American companies certifying their participation in a system for complying with basic data protection principles maintain an ‘adequate’ level of data protection. This is one of the ‘adequacy decisions’ that the Commission can make pursuant to the rules on the data protection Directive on transfers of personal data outside the EU (see further my recent blog post on the planned reforms to this system). Despite the doubts arising from the Snowden revelations, the Commission’s most recent report on the Safe Harbour system did not suggest that the system should be abandonned

Not everyone accepts these assertions, however. An Austrian citizen, Mr. Schrems, complained about the transfer of his personal data as a Facebook user pursuant to the Safe Harbour rules to the Irish data protection authority, which was competent in this matter because Facebook has a subsidiary in Ireland. The national authority argued that it could not take a decision on this complaint, because it was bound by the Commission’s decision. Moreover, it argued that the complaint was ‘frivolous’.

Mr. Schrems then challenged the authority’s decision before the Irish High Court. In its ruling today, the national judge therefore decided to send a question to the CJEU. Essentially, the question is whether the national data protection authority is bound by the Commission’s Decision, and whether that authority can conduct its own examination.

The first obvious question in this case is whether the American system infringes EU data protection law. Basing itself on the recent Digital Rights judgment of the CJEU, in which that Court ruled that the EU’s data retention Directive was invalid, the national court clearly believes that it does. While acknowledging the important anti-terrorist objectives of the law, the judge, when examining national constitutional law states that it is ‘very difficult’ to see how such mass surveillance ‘could pass any proportionality test or survive any constitutional scrutiny’. Indeed, such surveillance has ‘gloomy echoes’ of the mass surveillance carried out in ‘totalitarian states such as the [East Germany] of Ulbricht and Honeker’.

The judge equally believes that the US system is a violation of EU law, with no adequate or accessible safeguards available to EU citizens, and no consideration of EU law issues built in to the review process that does exist.

Is this analysis correct? There are two fundamental issues here which the national court doesn’t consider: the scope of the data protection directive, and the derogations from that Directive. On the question of scope, the CJEU previously found in its Passenger Name Records (PNR) judgment that the EU/US agreement which provided for the transfer of data from airlines to the US authorities was outside the scope of the data protection Directive, because it regulated essentially only the activities of law enforcement authorities, and the Directive does not apply to the ‘processing of personal data…in the course of an activity which falls outside the scope’ of EU law, such as…public security, defence, State security…and…criminal law’. On the other hand, the CJEU ruled that the data retention directive was correctly based on the EU’s internal market powers, since it essentially regulated the activity of private industry, albeit for public security objectives. While in this case, it might be argued that the American law in question falls within the first type of law, the Safe Harbour agreement clearly falls within the second. So it is a sort of hybrid question, but on balance the issue falls within the scope of the Directive, since the measure at issue is essentially the Safe Harbour agreement.

Secondly, the external transfer rules in the EU Directive do not refer expressly to the issue of derogations from data protection rights on public security grounds. Yet presumably some such derogations can exist, given that the Directive itself provides for public security derogations as regards the standard EU rules. Surely the security exceptions applied by third countries don’t have to be exactly the same as those applied by the Directive. But some form of minimum standard must apply. For the reasons set out by the national judge, however, there is a strong argument that the US rules fall below the standard of anything which the EU can accept as ‘adequate’.

Because the national judge takes these two issues for granted, there is no question sent to the CJEU on whether the American regime is either within the scope of the Directive, or violates the minimum standards of adequacy which the EU can accept as regards third states. But both these issues are absolutely essential in the debate over the post-Snowden relationship between the US and EU. It would therefore be desirable if the CJEU addressed them nonetheless.

Next, another problematic issue here is which set of EU data protection rules should apply: the external transfer rules, or the more stringent standard rules? The national court, along with the data protection authority, applies the external transfer rules, given Facebook’s certification under the Safe Harbour system. However, it is doubtful whether this is correct.

As is well known, in the recent Google Spain judgment, the CJEU ruled that the standard rules applied to Google’s search engine function, given that it had an ‘establishment’ in Spain, according to the Court’s interpretation of the rules. As I then argued on this blog, it probably follows from that judgment that the standard rules apply at least to some social networks like Facebook. In any event, the issue will arise again when the revised jurisdiction and external transfer rules, mentioned above, apply. However, the complainant and the national court assume that the external transfer rules apply. Perhaps the CJEU should also examine this issue of its own motion.

Another problematic issue is the question of how to challenge the inadequacy of data protection in practice in the US, which is the subject of the only question sent to the CJEU. The Safe Harbour agreement addresses this point directly, since it allows national data protection authorities to suspend data transfers as regards an individual company, in accordance with existing national law, if either the US government or the US enforcement system has found a violation of that agreement, or if:

there is a substantial likelihood that the Principles are being violated; there is a reasonable basis for believing that the enforcement mechanism concerned is not taking or will not take adequate and timely steps to settle the case at issue; the continuing transfer would create an imminent risk of grave harm to data subjects; and the competent authorities in the Member State have made reasonable efforts under the circumstances to provide the organisation with notice and an opportunity to respond.

However, Irish national law does not provide for such a system, but simply sets out an irrebutable presumption that the Commission’s adequacy decision is sufficient. This rule may well have played a part in convincing Facebook and the subsidiaries of other US companies to set up in Ireland in the first place.
The challenge argued that the national data protection authority nevertheless had to exercise such powers, and so the national judge asked only whether this was possible. Logically, there can be only one answer, by extension from the NS judgment: Member States cannot create an irrebutable presumption that prevents the exercise of Charter rights, so the national data protection authority must have the powers in question.

In the alternative, or arguably additionally, it must be possible to challenge the validity of the Commission’s adequacy decision in the national courts, which would then have an obligation, if they thought that challenge was well-founded, to send questions on that point to the CJEU. (See the Foto-Frost judgment).

The next problematic issue is the role of the national constitutional protection for human rights. Clearly the national judge believes that the American system breaches the protection for the right to privacy guaranteed in the Irish constitution. Nevertheless, the national court proceeds to examine the issue primarily from the perspective of EU law. So if the CJEU rules against the challenge to the American law on the merits, or does not address those merits for procedural reasons, should the national court proceed to apply Irish law?

In principle, national constitutional law cannot apply here, since EU law, as the national court recognises, has extensively harmonised this issue. This means that, according to the Melloni judgment of the CJEU, only the EU’s human rights standards, in the form of the Charter, can apply. National constitutional standards cannot. But national courts in Ireland (and elsewhere) might be unwilling to accept that outcome.

National law would only apply if the CJEU rules that this issue falls entirely outside the scope of the Directive, as discussed above. If, on the other hand, the processing falls within a public security derogation from the Directive, the EU Charter would apply, by analogy with the CJEU’s recent judgment in Pfleger (discussed here), in which it ruled that the Charter applies to national derogations from EU free movement law. This parallels the argument (discussed here) that national data retention law falls within the scope of EU law, following the Digital Rights judgment, because it is a derogation from the EU’s e-privacy Directive.

Finally, the consequences of any future finding by the national data protection authority that transfers under the Safe Harbour decision must be suspended as regards Facebook must be considered. Assuming that the US had not changed its law in the meantime, Facebook would have a dilemma: should it comply with its US legal obligations, or face the suspension of transfers of data from Europe? Possibly it could avoid this dilemma by ensuring that it only processed EU residents’ data within the EU, potentially avoiding the scope of US law. But this might be expensive, and in any event the US might seek to extend the scope of its law to cover such cases. These issues would inevitably arise for other major US companies as well.

Any real prospect that Facebook transfers from the EU might be blocked would cause a major earthquake in EU/US relations, making the concerns about the recent Google Spain judgment look like a minor tremor. It may be that the only solution is for the US to take more seriously its ongoing discussions with the EU on data protection issues, with a view to reaching a solution that reconciles its security concerns with the basic principles of privacy protection.

The new guidelines for the Area of Freedom, Security and Justice: some critical comments

by Emilio De Capitani

In the coming days the European Council will debate and adopt the long awaited Guidelines which will shape the future of the EU’s Area of Freedom, Security and Justice for forthcoming years. These guidelines follow the end of the current Stockholm Programme (2009-2014) and come near the end of the last transitional period for the measures adopted before the entry into force of the Lisbon Treaty on police and judicial cooperation in criminal matters (what remains of the former intergovernmental ‘third pillar’ cooperation).

Regrettably the draft European Council Conclusions which have been circulated (see the Annex below) and the programme of the incoming “trio” Presidencies (Italian, Latvian and Luxembourg) which will implement them in the next 18 months confirm the worst provisions detailed in our previous post on this issue.

If anyone was searching for proof that European Strategies lack political vision and are a collection of bureaucratic and diplomatic choices, he or she will find in these documents the confirmation of this thesis.

The emphasis of the European Council on the external dimension of the justice and home affairs polices by privileging soft law instruments such as the Global Approach on Migration or instruments such as mobility partnerships confirm two emerging trends since the entry into force of the Lisbon Treaty :
– to transfer to the European Council the main EU political choices in the last area where the treaties still do not grant and effective parliamentary and judicial control.
– to continue to avoid legally binding measures on which solidarity mechanisms can be established (Schengen, Frontex, and Eurosur being the exceptions which confirm the rule).

Rhetorical declarations aside, the draft European Council guidelines confirm the choice for general (and generic) strategies such as the Internal security strategy or the anti-drugs strategy which are adopted without any debate between the European Council members nor with the European Parliament.
These Strategies should then be implemented by the so called “Policy Cycle” where EU agencies and the Member States representatives – instead of verifying their consistency with national internal security strategies deciding which areas the EU’s intervention could add value in – pick and choose (on voluntary basis) some priorities which are approved without debate (as point A) by their ministers without (again) any European or national parliamentary debate.

Where choices and priorities are instead very clearly stated is on the role of the EU Agencies (Europol, Eurojust, EASO..) and bodies (the Anti Terrorism Coordinator) or where it is decided to go on with the establishment of an ambitious technocratic project such as the “smart borders” system (the feasibility of which is still to be proved even in the United States).
Follows the same logic the creation of an entry-exit system for third country nationals to control better the problems of the “over stayers” (those who remain after their initial permitted period of stay runs out) which apparently is one of the most dangerous threats to the EU. Needless to say that this idea is not new as it was raised by the US Congress years ago and was considered “silly” in the US also by the former Homeland Security Secretary Chertoff under the BUSH administration.

Even worse, both the European Council draft Conclusions and the trio Presidency programme insist as one of their big priorities is the establishment of a “bona fide traveller” system which will discriminate between one traveller and another on the basis of de facto arbitrary criteria. They also reinstate their commitment to the creation of a European passenger name record (PNR) system.

All these projects have in common the rather paranoic idea that any traveller is a potential danger. This is appalling in an European Union where there is still no permanent connection between the criminal records of the Member States, so that information on real criminals could be shared by triggering adequate measures in all the EU territory. This should already happen in the Schengen framework but, obviously, only if law enforcement authority take advantage of the alerts. The fact that the author of the recent attack to Jewish Museum in Brussels was freely circulating even after been checked twice as a dangerous person on the Schengen information System is not reassuring and prove once again that the security weaknesses do not lie in the lack of personal data but in the lack of police cooperation.

Selling out, for a false sense of security, the real fundamental rights of EU citizens, cannot be the real answer to the threats the EU will face in the coming years.

These inconsistencies can be solved by overcoming the ‘silo’ approach inside and between the MS and by better framing with a legislative measure the policy cooperation between the Member States (which still do not trust each other). True efficiency should then be measured if the threats are really supranational.

Even a project like PNR could have its (crazy) logic if somewhere in Europe there were a central intelligence system which could filter these data against a massive intelligence analysis and profile, as happens in the USA. But as it has been designed, PNR will be only a policy laundering exercise where the European Union legislation is adopted to justify the collection of massive personal data at national level. Should we remember that only on April 8th the Data retention directive, which followed the same logic, wasannulled by the CJEU as a clear violation of the proportionality principle and of Articles 7 and 8 of the EU Charter?

The point is that selling out the personal data of EU citizens appears to the European Council less costly than building a real binding framework for police cooperation on the basis of Article 87 of the TFEU.
The proof is given by the new Europol whose proposed legal basis (after amendments during negotiations) makes no more reference to Article 87 TFEU and which does not compel the Member States to share their security related informations.

These being the worrying projects on the European Council and Council side one can only hope that the newly elected European Parliament, in its July session, will challenge them and take the lead for a new alternative and legally sound policy which can shape in the next legislature an European area of Freedom, Security and Justice where the citizens’ needs and not the administrations will be the real compass.

Barnard & Peers: chapter 25, chapter 26

Annex – Draft European Council Guidelines (published on Statewatch)

1. One of the key objectives of the Union is to build an area of freedom, security and justice without internal borders, with full respect for fundamental rights. To this end, coherent policy measures need to be taken with respect to asylum, immigration, borders, police and judicial cooperation.

2. All the dimensions of a Europe that protects its citizens and offers effective rights to people inside and outside the Union are interlinked. The success or failure in one field depends on the performance in the other fields as well as on synergies with related policy areas. The answer to many of the challenges in the area of freedom, security and justice lies in relations with third countries, which calls for improving the link between the EU’s internal and external policies. This has to be reflected in the internal organisation of the EU institutions and bodies. Coordination with and within the Member States should be stepped up.

3. Building on the past programmes, the overall priority is now to consistently transpose, effectively implement and consolidate the legal instruments and policy measures in place. Intensifying operational cooperation, enhancing the role of the different EU agencies and ensuring the strategic use of EU funds will be key. In further developing the area of freedom, security and justice over the next years, it will be crucial to ensure the protection of fundamental rights, including data protection, whilst addressing security concerns, also in relations with third countries, and to adopt a strong EU General Data Protection framework by 2015.

4. Faced with challenges such as instability in many parts of the world as well as global demographic trends, an ageing population and skills shortages in Europe, the Union needs an efficient and well-managed migration and asylum policy. A comprehensive approach is required, optimizing the benefits of legal migration and offering protection to those in need while tackling irregular migration resolutely.

5. To remain an attractive destination for talents and skills, Europe must compete in the global race for talent. Strategies to maximise the opportunities of legal migration should be developed, including the streamlining of existing rules and a dialogue with the business community. The Union should also support Member States’ efforts for active integration policies which foster social cohesion and economic dynamism.

6. The Union’s commitment to international protection requires a strong European asylum policy based on the Treaty’s principles of solidarity and responsibility. The full transposition and effective implementation of the Common European Asylum System (CEAS) is an absolute priority. This should result in high common standards and stronger cooperation, creating a level playing field where asylum seekers are given the same procedural guarantees and protection throughout the Union. It should go hand in hand with a reinforced role of the European Asylum Support Office (EASO), particularly in promoting the uniform application of the acquis. Converging practices will enhance mutual trust and allow to move to future next steps, including mutual recognition of asylum decisions.

7. Addressing the root causes of irregular migration flows is an essential part of the EU migration policy. It is imperative to avoid the loss of lives of migrants undertaking hazardous journeys as well as to prevent and reduce irregular migration. A sustainable solution can only be found by intensifying cooperation with countries of origin and transit. Migration policies must become a much stronger integral part of the Union’s external and development policies, applying the more for more principle and building on the Global Approach to Migration and Mobility. The focus should be on the following elements:
– strengthening and expanding Regional Protection Programmes, in particular in the Horn of Africa, in close collaboration with UNHCR. In view of the protracted crisis in Syria, increase contributions to global resettlement efforts;
– addressing smuggling and trafficking in human beings more forcefully, with a focus on priority countries and routes. Particular attention should go at present to the situation in Eritrea and the Sinai;
– establishing an effective common return policy and enforcement of readmission agreements;
– fully implementing the actions identified by the Task Force Mediterranean.

8. The establishment of the Schengen zone, allowing people to travel without internal border controls, and the increasing numbers of people travelling to the EU require efficient management of the EU’s external borders to ensure strong protection. This is in the first place the role of the Member States, which must fully take their responsibilities. At the same time the Union must mobilize all the tools at its disposal to support them in this task. To this end:
– the integrated management of the external borders should be modernised to ensure smart border management with an entry-exit system and registered travellers programme and helped by the new Agency for Large Scale IT systems (EU-LISA);
– Frontex, spearheading European solidarity in the area of border control, should reinforce its activities in terms of operational assistance and increase its reactivity towards rapid evolutions in migration flows, making full use of the new European Border Surveillance System EUROSUR;
– the possibility of setting up a European System of Border Guards to enhance the control and surveillance capabilities at our external borders should be explored.
At the same time, the common visa policy needs to be modernised by facilitating legitimate travelling while maintaining a high level of security and implementing the new Schengen governance system.

9. It is essential to guarantee a genuine area of security to European citizens by preventing and combatting organised crime, human trafficking and corruption. At the same time, an effective EU Counter terrorism policy is needed, whereby all relevant actors work closely together, integrating the internal and external aspects of the fight against terrorism. In this context, the European Council reaffirms the role of the EU Counter Terrorism Coordinator. In its fight against organised crime and terrorism, the Union should back the national authorities by mobilising all instruments of judicial and police cooperation, with a reinforced coordination role for Europol and Eurojust, including through:
– the review of the internal security strategy;
– the improvement of cross-border information exchanges, including on criminal records;
– the development of a comprehensive approach to cybersecurity and cybercrime;
– the prevention of radicalisation and extremism and addressing the phenomenon of foreign fighters, including through a legal instrument allowing for EU wide alerts.

10. The smooth functioning of a true European area of justice with respect of the different legal systems and traditions of the Member States is vital for the EU. In this regard, mutual trust in each other’s justice systems should be further enhanced. A sound European justice policy will contribute to economic growth by helping businesses and consumers to benefit from a reliable business environment within the internal market. Further action is required to:
– promote the consistency and clarity of EU legislation for citizens and businesses;
-simplify access to justice; promote effective remedies and use of technological innovations including the use of e-justice;
– examine the reinforcement of the rights of persons, notably vulnerable persons, in civil procedures to facilitate enforcement of judgements in family law and in civil and commercial matters;
– enhance mutual recognition of decisions and judgments in civil and criminal matters;
– reinforce exchanges of information between the authorities of the Member States;
– fight fraudulent behaviour and damages to the EU budget by advancing negotiations on the European Public Prosecutor’s Office;
– facilitate cross-border activities and operational cooperation;
– enhance training for practitioners;
– mobilise the expertise of relevant EU agencies such as Eurojust and the Fundamental Rights Agency (FRA).

11. As one of the fundamental freedoms of the European Union, the right of EU citizens to move freely and reside and work in other Member States needs to be protected, including against possible abuse or fraudulent claims.

12. The European Council calls on the EU institutions and the Member States to ensure the appropriate legislative and operational follow-up to these guidelines and will hold a mid-term review in 2017.