2.1 Non discrimination, equality and minority integration – Page 4 – European Area of Freedom Security & Justice

Member States and the rule of law. Dealing with a breach of EU values

ORIGINAL PUBLISHED IN THE EP THINK TANK SITE

by Eva-Maria Alexandrova POPTCHEVA

SUMMARY

The European Union is founded on values common to all Member States. These are supposed to ensure a level of homogeneity among Member States, while respecting their national identities, so facilitating the development of a European identity and their integration. Article 7 of the Treaty on European Union provides mechanisms to enforce EU values, based on a political decision by the Council with the participation of the Commission and Parliament. Such decisions are exempt from judicial review.

The current mechanism is said to be unusable due to the high thresholds needed to adopt a decision in the Council, as well as Member States’ political unwillingness to use it. Various new approaches have been proposed by academics and by political actors, from a new independent monitoring body — the ‘Copenhagen Commission’, through extending the mandate of the EU Fundamental Rights Agency (FRA), to introducing the possibility for the EU to suspend national measures suspected of infringing EU law.

The European Parliament launched the idea of a ‘European fundamental rights policy cycle’ with the cooperation of EU institutions, Member States and the FRA, as a ‘new Copenhagen mechanism’ to monitor the situation in Member States. This mechanism would incorporate an early-warning system, with ‘formal notices’ to Member States where a breach in the rule of law appears likely, before formal proceedings under Article 7, and a ‘freezing procedure’ for national measures infringing upon EU values.

In 2014, the Commission announced ‘A new EU framework to strengthen the Rule of Law’, with a structured dialogue between the Commission and the Member State concerned and Commission recommendations and follow-up. On an initiative of the Italian Presidency, the Council decided in December 2014 to hold an annual dialogue, in the General Affairs Council, on the ‘rule of law’ in Member States.

A Union of values

EU values and national identity

The EU ‘values’ were enshrined in the Treaties only with the Treaty of Lisbon, replacing the previous, less extensive ‘principles’. However, it has been clear from the very beginnings of the Communities that, to succeed, the European integration process needs a common basis of values to secure a degree of homogeneity amongst the Member States.¹The EU values are supposed to be the basis for a common European ‘way of life’, facilitating integration towards a political, not just a ‘market’, Union. They support the development of a European identity, while ensuring the legitimacy of the EU as founded on democratic values. However, when it comes to detailed definitions of each of the values, there are few accepted unreservedly.

The EU values enjoy two-fold protection. First, since the 1993 Copenhagen European Council, they form part of the accession criteria for candidates for EU membership (Article 49(1) TEU). Second, Member States must, following their accession, observe and promote the EU values. Article 7 of the Treaty on European Union (TEU) establishes a procedure to sanction a Member State which does not uphold the values, through the suspension of membership rights. Moreover, the Union exports its values outside its territory, with the EU values underlying the international relations of the EU (Articles 21, 3(5), and 8 TEU).

On the other side of the coin are the national constitutional identities of Member States. According to Article 4(2) TEU, the Union must respect Member States’ national identities. This provision sets out a vision of a Union founded on values common to all Member States but which preserves the diversity of Member States’ political and organisational systems. This so called ‘constitutional individuality’ of the Member States can be reflected inter alia in state-organisational, cultural, including language, and historical heritage aspects.² Hence, the common EU values represent limits to the diversity of Member States, reflected in their constitutional identities.

Some examples Continue reading “Member States and the rule of law. Dealing with a breach of EU values”

House of Lords recommends to change the Governement’s strategy on the UK’s opt-in.

“The UK’s opt-in Protocol: implications of the Government’s approach”

NOTA BENE : the full report is accessible on the House of Lords website.

SUMMARY

This report focuses on the Government’s approach to the opt-in Protocol, introduced by the Lisbon Treaty, by virtue of which the UK has a right not to participate in EU justice and home affairs (JHA) measures. At issue is whether the opt-in Protocol can be interpreted to mean that it is the content of an EU measure which determines the application of the Protocol, rather than a legal base under the JHA title of the Treaty on the Functioning of the EU (Title V).

We express no view on the desirability or otherwise of the opt-in mechanisms introduced by the Lisbon Treaty. The function of this report is to examine the way in which the Government has sought to interpret those mechanisms.

We examine the Government’s interpretation of the expression “pursuant to [Title V]” in the opt-in Protocol, and conclude that it has an accepted legal meaning, namely that a Title V legal base is required before the opt-in can be triggered. As a consequence, we recommend that the Government reconsider its broader interpretation.

We consider the Government’s approach to determining the legal base of an EU measure with JHA content. We conclude that the distinction it draws between whole, partial, and incidental JHA measures is misconceived. We again recommend it reconsider its approach.

We consider whether the Government’s overall approach to the opt-in Protocol gives rise to legal uncertainty. We draw a distinction between potential and actual legal uncertainty, concluding that the potential of the Government’s policy to create legal uncertainty is considerable. We further conclude that the Government’s approach risks breaching the EU legal duty of “sincere cooperation”.

We then look at how the opt-in Protocol has been interpreted by the EU institutions. The Government believes that the Commission has actively pursued a policy of “legal base shopping”, in order to undermine the UK’s opt-in rights. In one specific case it provides evidence that lends some support to this allegation, in respect of the former Commission. With this partial exception, however, we conclude that there is no persuasive evidence to suggest that the Commission has circumvented the UK’s opt-in rights.

We review the approach of the Court of Justice of the EU (CJEU) to determining the legal base of international agreements and, while recognising the Government’s concerns, conclude that there is no evidence to suggest that the CJEU has sought deliberately to undermine the safeguards in the opt-in Protocol. We conclude that it is highly unlikely that the CJEU will change its established approach to determining legal base, including for measures with JHA content. We recommend that the Government review its litigation strategy in the light of this conclusion.

Finally, we recommend that the Government consider the feasibility of an inter-institutional agreement on the scope of Title V. Continue reading “House of Lords recommends to change the Governement’s strategy on the UK’s opt-in.”

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

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

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

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

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

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

The Facts:

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

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

The reasoning

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

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

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

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

Distinguishing Kahveci & Inan

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

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

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

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

Conclusions

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

Terrorists and serious criminals beware ! Your travel data can tell everything about you..

by Emilio DE CAPITANI

After the last terrorist attacks the President of The European Council, the EU interior ministers, the EU Counter-Terrorism Coordinator (CTC), the European Commission, some national parliaments and even the press have raised their voice against the European Parliament which is blocking since years a legislative measure on the access by law enforcement authorities to the passenger name record (PNR) managed by the airlines when you make a flight reservation.
Beware!
PNR data are not used to find criminals or already known dangerous persons.
This will be a too easy solution but will require a change in the Member state internal security policy. Member states remain extremely jealous of their security related data. According to the current EU legislation (and the Europol revised proposal) data dealing with already known criminals, terrorists, serial killers dangerous persons remain under the control of each national authority which can share them with other EU member States and EU agencies, (such as Europol and Eurojust), only on voluntary basis.

On the contrary PNR data of ordinary citizens could be mandatory collected from airlines and shared to a enable Law enforcement authorities “..to identify persons who were previously “unknown”, i.e. persons previously unsuspected of involvement in terrorism or serious crime, but whom an analysis of the data suggests may be involved in such crime and who should therefore be subject to further examination by the competent authorities.”

The (non exhaustive) list of “serious crimes” which according to the Council and the Commission can be prevented thanks to these miraculous bits of information is indeed impressive :
1. participation in a criminal organisation, 2. trafficking in human beings, 3. sexual exploitation of children and child pornography, 4. illicit trafficking in narcotic drugs and psychotropic substances, 5. illicit trafficking in weapons, munitions and explosives, 6. fraud, 7. laundering of the proceeds of crime, 8. computer-related crime,9. environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties, 10. facilitation of unauthorised entry and residence, 11. illicit trade in human organs and tissue, 12. kidnapping, illegal restraint and hostage-taking, 13. organised and armed robbery, 14. illicit trafficking in cultural goods, including antiques and works of art, 15. forgery of administrative documents and trafficking therein, 16. illicit trafficking in hormonal substances and other growth promoters, 17. illicit trafficking in nuclear or radioactive materials, 18. unlawful seizure of aircraft/ships, 19. sabotage, and 20. trafficking in stolen vehicles.

But which kind of data are so meaningful that they to reveal such diverse kinds of criminal behavior ?

The (again, non exhaustive) list of these data is attached to the draft Directive and is as follows:
(1) PNR record locator (2) Date of reservation/issue of ticket (3) Date(s) of intended travel (4) Name(s) (5) Address and contact information (telephone number, e-mail address) (6) All forms of payment information, including billing address (7) Complete travel itinerary for specific PNR (8) Frequent flyer information (9) Travel agency/travel agent (10) Travel status of passenger, including confirmations, check-in status, no show or go show information (11) Split/divided PNR information (12) General remarks (including all available information on unaccompanied minors under 18 years, such as name and gender of the minor, age, language(s) spoken, name and contact details of guardian on departure and relationship to the minor, name and contact details of guardian on arrival and relationship to the minor, departure and arrival agent) (13) Ticketing field information, including ticket number, date of ticket issuance and one-way tickets, Automated Ticket Fare Quote fields (14) Seat number and other seat information (15) Code share information (16) All baggage information (17) Number and other names of travellers on PNR (18) Any Advance Passenger Information (API) data collected (inter alia document type, document number, nationality, country of issuance, date of document expiration, family name, given name, gender, date of birth, airline, flight number, departure date, arrival date, departure port, arrival port, departure time, arrival time) (19) All historical changes to the PNR listed in numbers 1 to 18.

The draft Council text allows Member States also to collect other personal data if they so wish. (Guess if also the place of birth was added it would be possible to know also the Astrological profile and we all know after thousand years of consistent scientific observation that people with the sun or ascendant in Scorpio can be extremely dangerous..)

On this basis You still consider that this “machinery” deemed to filter millions a record a day by 28 different Passenger Unit in the member states without a meaningful judicial control and storing them for five years is not only an abuse of fundamental rights of millions of passengers, but is also contrary to the freedom of movement protected by the Treaty and the Charter, and is disproportionate? Moreover is contrary to the rule of law principle discriminatory because data on passengers will differ simply because of the different methods followed by each airline when dealing with their reservation systems?

Do you still think that such a machinery which in the US is backed by an intelligence counter terrorism endeavor of hundred billion dollars per year, will work in countries where police has hardly the resource to pay the petrol for their cars and were the first reflex is not to share “its” criminal records with the other member states and even less with EU agencies (which also stand side by side only for the family photo of the annual budget before the European Parliament) ?

In this framework would not be much wise, as a matter of priority, for the European Union to prevent and fight terrorism and serious crime by interconnecting the member states criminal record systems and by adding also the data of third country nationals who have already been convicted and condemned in their country for serious crimes?

Do you not consider that 28 national PNR (following each one its own profiling tactics) will be useless at European level where in any case only 2% of the Europol data deal with terrorist and are fed by only 4 of the 28 EU Countries ?

Last but not least, a real terrorist and criminals will not be tempted to avoid all of this by using false documents (easily accessible on internet) or, more safely, by keeping a train ?

Read the text below and (maybe) you will change your mind. But if you still consider that the PNR is the silver bullet to fight terrorists I have a used car that can be of your interest..

——————————————
COUNCIL OF THE EUROPEAN UNION
Brussels, 23 April 2012
8916/12
Interinstitutional File: 2011/0023 (COD)
GENVAL 23 AVIATION 73 DATAPROTECT 52 CODEC 1024
NOTE
From: Presidency
to: Council
No. prev. doc.: 8448/1/12 REV 1 GENVAL 17 AVIATI*N 60 DATAPR*TECT 40 C*DEC 897
Subject: Proposal for a Directive of the Council and the European Parliament on the use of
Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime

Background

1. The Commission submitted the proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for law enforcement purposes to the Council on 17 November 2007. This proposal was discussed in detail during the Slovenian, the French and the Czech Presidency. When the Lisbon Treaty entered into force, the proposal, which was not yet adopted, became legally obsolete.

2. On 3 February 2011 the Commission presented a proposal for a Directive of the European Parliament and of the Council on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime.

3. At the Council meeting on 11 April 2011, a discussion was held on whether intra-EU flights should be included in the scope of the draft Directive. Further to that discussion, the
preparatory work on the draft PNR Directive continued at expert-level at the Working Party on General Matters, including Evaluations on the basis of the indication by the Council that the Directive should allow individual Member States the option to mandate the collection of PNR data with regard to intra-EU flights and that the collection and processing of such data should be subject to the legal regime created by the PNR Directive1.

4. Since the Commission presented its proposal, the Working Party on General Matters, including Evaluations has worked on the proposal for over a year. The scope of the proposal has been thoroughly discussed and further refined and it is now established for which purposes and under which conditions PNR data collected under the Directive can be used. A few Member States have argued in favour of extending the scope of the Directive to other purposes than those presently covered. It is, however, the Presidency’s assessment that a clear and strict purpose limitation is important in order to safeguard the proportionality of the Directive. The Presidency therefore considers that no further changes should be made to the scope of the Directive at the present stage. The review clause in the proposal will, however, allow for future revision of the Directive on the basis of national experiences.

5. The Presidency considers that the extensive work on the file and the considerable efforts that have been made to take all views into account during the Hungarian, Polish and Danish Presidency have resulted in a well-balanced draft Directive.
6. Nine delegations maintain a general scrutiny reservation on the proposal, two have a general reservation and two hold a parliamentary scrutiny reservation.

Retention period

7. The Commission had proposed an initial storage period of 30 days, followed by a further retention period of five years of masked out data. The negotiations have shown that an initial storage period of 30 days is generally considered much too short from an operational point of view. Article 9 has been redrafted in such a way that the overall retention period of 5 years is subdivided into two periods: a first period in which the data are fully accessible and a second period during which the data are masked out and where full disclosure of the data is subject to strict conditions. Taking into consideration the operational needs the initial retention period is set at two years. In comparison the initial retention period in the 2011 EU-Australia Agreement, to which the Council has agreed and the EP has given its consent, is three years.

Inclusion of intra-EU flights

8. Article 1a, which has been drafted in line with the indications given at the Council meeting on 11 April 2011, allows Member States to apply this Directive to all or selected intra-EU flights. Hence, the Article allows any Member State to collect PNR data from those intra-EU flights it considers necessary in order to prevent, detect, investigate or prosecute serious crime or terrorism. It thus constitutes a compromise between those Member States that are in favour of mandatory inclusion of all intra-EU flights and those that are opposed to any inclusion of intra-EU flights.

9. The Presidency considers the above solutions as part of a package, which constitutes a compromise between those Member States which would prefer to limit the impact of the collection and processing of PNR data and those Member States which are in favour of an extension of the scope of the collection and processing of PNR data. At the Coreper meeting of 18 April 2012 some Member States maintained for the time being their reservations on the issues of retention periods and intra-EU flights. However, only three delegations indicated that they could not accept the overall package as a basis for commencing negotiations with the EP.

10. In view of the above, the Presidency invites the Council to confirm the compromise text set out in the Annex as a basis for starting the negotiations with the Parliament.

ANNEX

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the use of Passenger Name Record (PNR) data for the prevention, detection, investigation
and prosecution of terrorist offences and serious crime

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 82(1)(d) and 87(2)(a) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national Parliaments,
Having regard to the opinion of the European Economic and Social Committee2,
Having regard to the opinion of the Committee of the Regions3,
Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) On 6 November 2007 the Commission adopted a proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) data for law enforcement purposes. However, upon entry into force of the Treaty of Lisbon on 1 December 2009, the Commission’s proposal, which had not been adopted by the Council by that date, became obsolete.

(2) The `Stockholm Programme An open and secure Europe serving and protecting the citizens’4 calls on the Commission to present a proposal for the use of PNR data to prevent, detect, investigate and prosecute terrorism and serious crime.

(3) In its Communication of 21 September 2010 “*n the global approach to transfers of Passenger Name Record (PNR) data to third countries” the Commission outlined certain core elements of a Union policy in this area.

(4) Council Directive 2004/82/EC of 29 April 2004 on the obligation of air carriers to communicate passenger data5 regulates the transfer of advance passenger data by air carriers to the competent national authorities for the purpose of improving border controls and combating illegal immigration.

(5) PNR data are necessary to effectively prevent, detect, investigate and prosecute terrorist offences and serious crime and thus enhance internal security, inter alia by comparing them with various databases of persons and objects sought, to construct evidence and, where relevant, to find associates of criminals and unravel criminal networks.
(6) ….

(7) PNR data enable to identify persons who were previously “unknown”, i.e. persons previously unsuspected of involvement in terrorism or serious crime, but whom an analysis of the data suggests may be involved in such crime and who should therefore be subject to further examination by the competent authorities. By using PNR data it is possible to address the threat of terrorism and serious crime from a different perspective than through the processing of other categories of personal data. However, in order to ensure that the processing of data of innocent and unsuspected persons remains as limited as possible, the aspects of the use of PNR data relating to the creation and application of assessment criteria should be further limited to terrorist offences and relevant forms of serious crime. Furthermore, the assessment criteria shall be defined in a manner which ensures that as few innocent people as possible are identified by the system.

(8) Air carriers already collect and process PNR data from their passengers for their own commercial purposes. This Directive should not impose any obligation on air carriers to collect or retain any additional data from passengers or to impose any obligation on passengers to provide any data in addition to that already being provided to air carriers.

(9) Some air carriers retain any collected advance passenger information (API) data as part of the PNR data, while others do not. The use of PNR data together with API data has added value in assisting Member States in verifying the identity of an individual and thus reinforcing their law enforcement value and minimising the risk of carrying out checks and investigations on innocent people. It is therefore important to ensure that, where air carriers collect API data, they should transfer it, irrespective of whether the API data is retained as part of the PNR data or not.

(10) In order to prevent, detect, investigate and prosecute terrorist offences and serious crime, it is essential that all Member States introduce provisions laying down obligations on air carriers operating extra EU-flights, and if the Member State wishes to do so also on air carriers operating intra EU-flights, to transfer any collected PNR and API data. These provisions should be without prejudice to Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data.

(11) The processing of personal data must be proportionate to the specific security goals pursued by this Directive.

(12) The definition of terrorist offences applied in this Directive should be the same as in Council Framework Decision 2002/475/JHA on combating terrorism6 and the definition of serious crime applied in this Directive should be the same as in Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedure between Member States7. The list of relevant serious crime with relation to which PNR data may be used for the creation and application of assessment criteria should be based on Framework Decision 2002/584/JHA.

(13) PNR data should be transmitted to a single designated unit (Passenger Information Unit) in the relevant Member State, so as to ensure clarity and reduce costs to air carriers. The Passenger Information Unit may have different locations in one Member State and Member States may also jointly set up one Passenger Information Unit.

(13a) It is desirable that co-financing of the costs related to the establishment of the national Passenger Information Units will be provided for under the instrument for financial support for police cooperation, preventing and combating crime, and crisis management as part of the Internal Security Fund.

(14) The contents of any lists of required PNR data to be obtained by a Passenger Information Unit should be drawn up with the objective of reflecting the legitimate requirements of public authorities to prevent, detect, investigate and prosecute terrorist offences or serious crime, thereby improving internal security within the Union as well as protecting the fundamental rights of persons, notably privacy and the protection of personal data. Such lists should not be based on a person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health or sexual life. The PNR data should contain details on the passenger’s reservation and travel itinerary which enable competent authorities to identify air passengers representing a threat to internal security.

(15) There are two possible methods of data transfer currently available: the `pull’ method, under which the competent authorities of the Member State requiring the data can reach into (access) the air carrier’s reservation system and extract (`pull’) a copy of the required data, and the `push’ method, under which air carriers transfer (`push’) the required PNR data to the authority requesting them, thus allowing air carriers to retain control of what data is provided. The `push’ method is considered to offer a higher degree of data protection and should be mandatory for all air carriers.

(16) The Commission supports the International Civil Aviation *rganisation (ICA*) guidelines on PNR. These guidelines should thus be the basis for adopting the supported data formats for transfers of PNR data by air carriers to Member States. This justifies that such supported data formats, as well as the relevant protocols applicable to the transfer of data from air carriers should be adopted in accordance with the examination procedure provided for in Regulation (EU) No182/2011 of the European Parliament and of the Council of 16 February 2011 lying down rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers8.

(17) The Member States should take all necessary measures to enable air carriers to fulfil their obligations under this Directive. Dissuasive, effective and proportionate penalties, including financial ones, should be provided for by Member States against those air carriers failing to meet their obligations regarding the transfer of PNR data.

(18) Each Member State should be responsible for assessing the potential threats related to terrorist offences and serious crime.

(19) Taking fully into consideration the right to the protection of personal data and the right to non-discrimination, no decision that produces an adverse legal effect on a person or seriously affects him/her should be taken only by reason of the automated processing of PNR data. Moreover, in respect of Article 21 of the Charter of Fundamental Rights of the European Union no such decision should discriminate on any grounds such as a person’s sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.

(20) Member States should share with other Member States the PNR data that they receive where this is necessary for the prevention, detection, investigation or prosecution of terrorist offences or serious crime. The provisions of this Directive should be without prejudice to other Union instruments on the exchange of information between police and judicial authorities, including Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police *ffice (Europol)9 and Council Framework Decision 2006/960/JHA of 18 September 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union10. Such exchange of PNR data between law enforcement and judicial authorities should be governed by the rules on police and judicial cooperation.

(21) The period during which PNR data are to be retained should be proportionate to the purposes of the prevention, detection, investigation and prosecution of terrorist offences and serious crime. Because of the nature of the data and their uses, it is necessary that the PNR data are retained for a sufficiently long period for carrying out analysis and for use in investigations. In order to avoid disproportionate use, it is necessary that, after an initial period, the data are depersonalised through masking out and that the full PNR data are only accessible under very strict and limited conditions.

(22) Where specific PNR data have been transmitted to a competent authority and are used in the context of specific criminal investigations or prosecutions, the retention of such data by the competent authority should be regulated by the national law of the Member State, irrespective of the retention periods set out in this Directive.

(23) The processing of PNR data domestically in each Member State by the Passenger Information Unit and by competent authorities should be subject to a standard of protection of personal data under their national law which is in line with Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters11.

(24) Taking into consideration the right to the protection of personal data, the rights of the data subjects concerning the processing of their PNR data, such as the right of access, the right of rectification, erasure and blocking, as well as the rights to compensation and judicial remedies, should be in line with Framework Decision 2008/977/JHA.

(25) Taking into account the right of passengers to be informed of the processing of their personal data, Member States should ensure they are provided with accurate information about the collection of PNR data and their transfer to the Passenger Information Unit.

(25a) This Directive allows the principle of public access to official documents to be taken into account.

(26) Transfers of PNR data by Member States to third countries should be permitted only on a case-by-case basis and in compliance with Framework Decision 2008/977/JHA. To ensure the protection of personal data, such transfers should be subject to additional requirements relating to the purpose and the necessity of the transfer.

(27) The national supervisory authority that has been established in implementation of Framework Decision 2008/977/JHA should also be responsible for advising on and monitoring of the application and of the provisions adopted by the Member States pursuant to this Directive.

(28) This Directive does not affect the possibility for Member States to provide, under their domestic law, for a system of collection and handling of PNR data for purposes other than those specified in this Directive, or from transportation providers other than those specified in the Directive, provided that such domestic law respects the Union acquis.

(29) This Directive is without prejudice to the current Union rules on the way border controls are carried out or with the Union rules regulating entry and exit from the territory of the Union.

(30) As a result of the legal and technical differences between national provisions concerning the processing of personal data, including PNR, air carriers are and will be faced with different requirements regarding the types of information to be transmitted, as well as the conditions under which this information needs to be provided to competent national authorities. These differences may be prejudicial to effective cooperation between the competent national authorities for the purposes of preventing, detecting, investigating and prosecuting terrorist offences or serious crime.

(31) Since the objectives of this Directive cannot be sufficiently achieved by the Member States, and can be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(32) This Directive respects the fundamental rights and the principles of the Charter of Fundamental Rights of the European Union, in particular the right to the protection of personal data, the right to privacy and the right to non-discrimination as protected by Articles 8, 7 and 21 thereof and has to be implemented accordingly. The Directive is compatible with data protection principles and its provisions are in line with the Framework Decision 2008/977/JHA. Furthermore, and in order to comply with the proportionality principle, the Directive, on specific issues, will have stricter rules on data protection than the Framework Decision 2008/977/JHA.

(33) In particular, the scope of this Directive is as limited as possible, as it allows retention of PNR data in the Passenger Information Units for period of time not exceeding 5 years, after which the data should be deleted, as the data should be depersonalised through masking out after an initial period, and as the collection and use of sensitive data is prohibited. In order to ensure efficiency and a high level of data protection, Member States are required to ensure that an independent national supervisory authority is responsible for advising and monitoring the way PNR data are processed. All processing of PNR data should be logged or documented for the purpose of verification of its legality, self-monitoring and ensuring proper data integrity and security of the processing. Member States should also ensure that passengers are clearly and precisely informed about the collection of PNR data and their rights.

(34) In accordance with Article 3 of the Protocol (No 21) on the position of United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, those Member States have notified their wish to participate in the adoption and application of this Directive.
(35) In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS

Article 1 Subject matter and scope
1. This Directive provides for the transfer by air carriers of Passenger Name Record (PNR) data of passengers of extra-EU flights to and from the Member States, as well as the processing of that data.
2. The PNR data collected in accordance with this Directive may be processed only for the purpose of prevention, detection, investigation and prosecution of terrorist offences and serious crime as provided for in Article 4 (2) (a), (b) and (c).

Article 1a Application of the directive to intra-EU flights
1. If a Member State wishes to apply this Directive to intra-EU flights, it shall give notice in writing to the Commission to that end. The Commission shall publish such a notice in the Official Journal of the European Union. A Member State may give or revoke such notice at any time after the entry into force of this Directive.
2. Where such a notice is given, all the provisions of this Directive shall apply in relation to intra-EU flights as if they were extra-EU flights and to PNR data from intra-EU flights as if it were PNR data from extra-EU flights.
3. A Member State may decide to apply this Directive only to selected intra-EU flights. In making such a decision the Member State shall select the flights it considers necessary in order to further the purposes of this Directive. The Member State may decide to change the selected intra-EU flights at any time.

Article 2 Definitions
For the purposes of this Directive the following definitions shall apply:
(a) `air carrier’ means an air transport undertaking with a valid operating licence or equivalent permitting it to carry out carriage by air of passengers;
(b) `extra-EU flight’ means any scheduled or non-scheduled flight by an air carrier flying from a third country planned to land on the territory of a Member State or from the territory of a Member State planned to land in a third country, including in both cases flights with any stopovers at the territory of Member States or third countries;
(c) `intra-EU flight’ means any scheduled or non-scheduled flight by an air carrier flying from the territory of a Member State planned to land on the territory of one or more of the other Member States, without any stop-overs at the territory/airports of a third country;
(d) `Passenger Name Record’ or’PNR data’ means a record of each passenger’s travel requirements which contains information necessary to enable reservations to be processed and controlled by the booking and participating air carriers for each journey booked by or on behalf of any person, whether it is contained in reservation systems, Departure Control Systems (DCS, the system used to check passengers onto flights) or equivalent systems providing the same functionalities.
(e) `passenger’ means any person, except members of the crew, carried or to be carried in an aircraft with the consent of the air carrier, which is manifested by the persons’ registration in the passengers list and which includes transfer or transit passengers;
(f) `reservation systems’ means the air carrier’s internal reservation system, in which PNR data are collected for the handling of reservations;
(g) `push method’ means the method whereby air carriers transfer PNR data into the database of the authority requesting them;
(h) `terrorist offences’ means the offences under national law referred to in Articles 1 to 4 of Council Framework Decision 2002/475/JHA;
(i) `serious crime’ means the offences under national law referred to in Article 2(2) of Council Framework Decision 2002/584/JHA if they are punishable by a custodial sentence or a detention order for a maximum period of at least three years under the national law of a Member State;
(k) ‘depersonalising through masking out of data’ means rendering certain data elements of such data invisible to a user without deleting these data elements.

CHAPTER II RESPONSIBILITES OF THE MEMBER STATES

Article 3 Passenger Information Unit
1. Each Member State shall set up or designate an authority competent for the prevention, detection, investigation or prosecution of terrorist offences and serious crime or a branch of such an authority to act as its `Passenger Information Unit’ (“PIU”) responsible for collecting PNR data from the air carriers, storing them, processing them and transmitting the PNR data or the result of the processing thereof to the competent authorities referred to in Article 5. The PIU is also responsible for the exchange of PNR data or the result of the processing thereof with PIUs of other Member States in accordance with Article 7. Its staff members may be seconded from competent public authorities. It shall be provided with adequate resources in order to fulfil its tasks.

2. Two or more Member States may establish or designate a single authority to serve as their Passenger Information Unit. Such a Passenger Information Unit shall be established in one of the participating Member States and shall be considered the national Passenger Information Unit of all such participating Member States. The participating Member States shall agree on the detailed rules for the operation of the Passenger Information Unit and shall respect the requirements laid down in this Directive.

3. Each Member State shall notify the Commission within one month of the establishment or designation of the Passenger Information Unit thereof. It may at any time modify its notification. The Commission shall publish this information, including any modifications of it, in the Official Journal of the European Union.

Article 4 Processing of PNR data
1. The PNR data transferred by the air carriers shall be collected by the Passenger Information
Unit of the relevant Member State, as provided for in Article 6. Should the PNR data transferred by air carriers include data beyond those listed in Annex I, the Passenger Information Unit shall delete such data immediately upon receipt.
2. The Passenger Information Unit shall process PNR data only for the following purposes:
(a) carrying out an assessment of the passengers prior to their scheduled arrival to or departure from the Member State in order to identify persons who require further examination by the competent authorities referred to in Article 5, in view of the fact that such persons may be involved in a terrorist offence or serious crime.
(i) In carrying out such an assessment the Passenger Information Unit may compare PNR data against databases relevant for the purpose of prevention, detection, investigation and prosecution of terrorist offences and serious crime, including databases on persons or objects sought or under alert, in accordance with Union, international and national rules applicable to such databases.
(ii) When carrying out an assessment of persons who may be involved in a terrorist offence or serious crime listed in Annex II to this Directive, the Passenger Information Unit may also process PNR data against pre-determined criteria.
Member States shall ensure that any positive match resulting from automated processing of PNR data conducted under point (a) of paragraph 2 is individually reviewed by non-automated means in order to verify whether the competent authority referred to in Article 5 needs to take action in accordance with national law;
(b) responding, on a case-by-case basis, to duly reasoned requests from competent authorities to provide PNR data and process PNR data in specific cases for the purpose of prevention, detection, investigation and prosecution of a terrorist offence or serious crime, and to provide the competent authorities with the results of such processing; and
(c) analysing PNR data for the purpose of updating or creating new criteria for carrying out assessments referred to point (a) (ii) in order to identify any persons who may be involved in a terrorist offence or serious crimes listed in Annex II.
3. The assessment of the passengers prior to their scheduled arrival or departure from the
Member State carried out against pre-determined criteria referred to in point (a)(ii) of paragraph 2 shall be carried out in a non-discriminatory manner on the basis of assessment criteria established by its Passenger Information Unit. Member States shall ensure that the assessment criteria are set by the Passenger Information Units, in cooperation with the competent authorities referred to in Article 5. The assessment criteria shall in no circumstances be based on a person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health or sexual life.
4. The Passenger Information Unit of a Member State shall transmit the PNR data or the results
of the processing of PNR data of the persons identified in accordance with point (a) of paragraph 2 for further examination to the competent authorities of the same Member State referred to in Article 5. Such transfers shall only be made on a case-by-case basis.
5. The consequences of the assessments of passengers referred to in point (a) of paragraph 2
shall not jeopardise the right of entry of persons enjoying the Union right of free movement into the territory of the Member State concerned as laid down in Directive 2004/38/EC. In addition, the consequences of such assessments, where these are carried out in relation to intra-EU flights between Member States to which the Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders12 applies, shall comply with that Code.

12 OJ L 105, 13.4.2006, p. 1.

Article 5 Competent authorities
1. Each Member State shall adopt a list of the competent authorities entitled to request or receive PNR data or the result of the processing of PNR data from the Passenger Information Units in order to examine that information further or take appropriate action for the purpose of preventing, detecting, investigating and prosecuting terrorist offences and serious crime.
2. The authorities referred to in paragraph 1 shall be competent for the prevention, detection, investigation or prosecution of terrorist offences or serious crime.
3. For the purpose of Article 7(4), each Member State shall notify the list of its competent authorities to the Commission eighteen months after entry into force of this Directive at the latest, and may at any time update this notification. The Commission shall publish this information, as well as any modifications of it, in the Official Journal of the European Union.
4. The PNR data and the result of the processing of PNR data received from the Passenger Information Unit may be further processed by the competent authorities of the Member States only for the purpose of preventing, detecting, investigating or prosecuting terrorist offences or serious crime.
5. Paragraph 4 shall be without prejudice to national law enforcement or judicial powers where other violations of criminal law, or indications thereof, are detected in the course of enforcement action further to such processing.
6. The competent authorities shall not take any decision that produces an adverse legal effect on a person or significantly affects a person only by reason of the automated processing of PNR data.

Article 6
Obligations on air carriers on transfer of data
1. Member States shall adopt the necessary measures to ensure that air carriers transfer (‘push’) the PNR data as defined in Article 2(d) and specified in Annex I, to the extent that such data are already collected by them, to the database of the Passenger Information Unit of the Member State on the territory of which the flight will land and/or from the territory of which the flight will depart. Where the flight is code-shared between one or more air carriers, the obligation to transfer the PNR data of all passengers on the flight shall be on the air carrier that operates the flight. Where an extra-EU flight has one or more stopovers at the airports of different Member States, air carriers shall transfer the PNR data of all passengers to the Passenger Information Units of all the Member States concerned. This also applies where an intra-EU flight has one or more stopovers at the airports of different Member States, but only in relation to Member States which are collecting PNR data.
1a. In case the air carriers have collected any advance passenger information (API) data listed under item (18) of Annex 1 to this directive but do not retain these data as part of the PNR data, Member States shall adopt the necessary measures to ensure that air carriers also transfer (‘push’) these data to the Passenger Information Unit of the Member State referred to in paragraph 1. In case of such transfer, all the provisions of this Directive shall apply in relation to these API data as if they were part of the PNR data.
2. Air carriers shall transfer PNR data by electronic means using the common protocols and supported data formats to be adopted in accordance with the procedure referred to in Articles 13 and 14, or, in the event of technical failure, by any other appropriate means ensuring an appropriate level of data security:
(a) once 24 to 48 hours before the scheduled time for flight departure; and
(b) once immediately after flight closure, that is once the passengers have boarded the aircraft in preparation for departure and it is no longer possible for passengers to board or leave.
3. Member States shall permit air carriers to limit the transfer referred to in point (b) of paragraph 2 to updates of the transfer referred to in point (a) of paragraph 2.
4. On a case-by-case basis and where access to PNR data is necessary to respond to a specific and actual threat related to terrorist offences or serious crime, air carriers shall, upon request from a Passenger Information Unit in accordance with the procedures provided under national law, transfer PNR data at other points in time than those mentioned in paragraph 2(a) and (b).

Article 7
Exchange of information between Member States
1. Member States shall ensure that, with regard to persons identified by a Passenger Information Unit in accordance with Article 4(2)(a), the PNR data or the result of any processing thereof is transmitted by that Passenger Information Unit to the corresponding units of other Member States where it considers such transfer to be necessary for the prevention, detection, investigation or prosecution of terrorist offences, or serious crime. The Passenger Information Units of the receiving Member States shall transmit the received information to their competent authorities in accordance with Article 4(4).
2. The Passenger Information Unit of a Member State shall have the right to request, if necessary, the Passenger Information Unit of any other Member State to provide it with PNR data that are kept in the latter’s database and have not yet been depersonalised through masking out under Article 9(2) and, if necessary, also the result of any processing thereof, if it has already been prepared pursuant to Article 4(2)(a). The duly reasoned request for such data may be based on any one or a combination of data elements, as deemed necessary by the requesting Passenger Information Unit for a specific case of prevention, detection, investigation or prosecution of terrorist offences or serious crime. Passenger Information Units shall provide the requested data as soon as practicable. In case the requested data have been depersonalised through masking out in accordance with Article 9(2) the Passenger Information Unit shall only provide the full PNR data where it is reasonably believed that it is necessary for the purpose of Article 4(2)(b) and only when authorised to do so by an authority competent under Article 9(3).
3. (…)
4. Only when necessary in cases of emergency and under the conditions laid down in paragraph 2 may the competent authorities of a Member State request directly the Passenger Information Unit of any other Member State to provide it with PNR data that are kept in the latter’s database. The requests from the competent authorities, a copy of which shall always be sent to the Passenger Information Unit of the requesting Member State, shall be reasoned. In all other cases the competent authorities shall channel their requests through the Passenger Information Unit of their own Member State.
5. Exceptionally, where access to PNR data is necessary to respond to an specific and actual threat related to terrorist offences or serious crime, the Passenger Information Unit of a Member State shall at any time have the right to request the Passenger Information Unit of another Member State to obtain PNR data in accordance with article 6(4) and provide it to the requesting Passenger Information Unit.
6. Exchange of information under this Article may take place using any existing channels for cooperation between the competent authorities of the Member States. The language used for the request and the exchange of information shall be the one applicable to the channel used. Member States shall, when making their notifications in accordance with Article 3(3), also inform the Commission with details of the contact points to which requests may be sent in cases of emergency. The Commission shall communicate to the Member States the notifications received.

Article 8 Transfer of data to third States
A Member State may transfer PNR data as well as the results of the processing of such data stored by the Passenger Information Unit in accordance with Article 9 to a third State only on a case-bycase basis and if-
(a) the conditions laid down in Article 13 of Council Framework Decision 2008/977/JHA are fulfilled;
(b) it is necessary for the purposes of this Directive as specified in Article 1(2);
(c) the third State agrees to transfer the data to another third country only where it is necessary for the purposes of this Directive as specified in Article 1(2) and only with the express authorisation of the Member State that provided the third State with the data; and
(d) similar conditions as those laid down in Article 7(2) are fulfilled.

Article 9 Period of data retention
1. Member States shall ensure that the PNR data provided by the air carriers to the Passenger
Information Unit are retained in a database at the Passenger Information Unit for a period of five years after their transmission to the Passenger Information Unit of the Member State on whose territory the flight is landing or departing.
2. Upon expiry of a period of two years after the transfer of the PNR data as referred to in
paragraph 1, the PNR data shall be depersonalised through masking out of the following data elements which could serve to directly identify the passenger to whom the PNR data relate:
1. Name (s), including the names of other passengers on PNR travelling together;
2. Address and contact information;
3. All forms of payment information, including billing address, to the extent that it contains any information which could serve to directly identify the passenger to whom PNR relate or any other persons;
4. Frequent flyer information;
5. General remarks to the extent that it contains any information which could serve to directly identify the passenger to whom the PNR relate; and
6. Any collected advance passenger information.
3. Upon expiry of the two-year period referred to in paragraph 2, disclosure of the full PNR data shall be permitted only where it is reasonably believed that it is necessary for the purpose of Article 4(2)(b) and only when approved by a judicial authority or by another national authority competent under national law to verify whether the conditions for disclosure are fulfilled.

4. Member States shall ensure that the PNR data are deleted upon expiry of the period specified in paragraph 1. This obligation shall be without prejudice to cases where specific PNR data have been transferred to a competent authority and are used in the context of specific case for the purpose of prevention, detection, investigation or prosecution, in which case the retention of such data by the competent authority shall be regulated by the national law of the Member State.

5. The result of the processing referred to in Article 4(2)(a) shall be kept by the Passenger
Information Unit only as long as necessary to inform the competent authorities of a positive match. Where the result of an automated processing has, further to individual review by non-automated means as referred to in Article 4(2)(a) last subparagraph, proven to be negative, it may, however, be stored so as to avoid future `false’ positive matches for as long as the underlying data have not yet been deleted in accordance with paragraph 1.

Article 10 Penalties against air carriers
Member States shall ensure, in conformity with their national law, that dissuasive, effective and proportionate penalties, including financial penalties, are provided for against air carriers which, do not transmit the data as provided for in Article 6, or do not do so in the required format or otherwise infringe the national provisions adopted pursuant to this Directive.

Article 11 Protection of personal data
1. Each Member State shall provide that, in respect of all processing of personal data pursuant to this Directive, every passenger shall have the same right to access, the right to rectification, erasure and blocking, the right to compensation and the right to judicial redress as those adopted under the national law implementing Articles 17, 18, 19 and 20 of the Council Framework Decision 2008/977/JHA. The provisions of Articles 17, 18, 19 and 20 of the Council Framework Decision 2008/977/JHA shall therefore be applicable.
2. Each Member State shall provide that the provisions adopted under the national law to
implement Articles 21 and 22 of the Council Framework Decision 2008/977/JHA regarding confidentiality of processing and data security shall also apply to all processing of personal data pursuant to this Directive.
3. Any processing of PNR data revealing a person’s racial or ethnic origin, political opinions, religious or philosophical belief, trade union membership, health or sexual life shall be prohibited. In the event that PNR data revealing such information are received by Passenger Information Unit they shall be deleted without delay.
4. All processing, including receipt of PNR data from air carriers and all transfers of PNR data by Passenger Information Units and all requests by competent authorities or Passenger Information Units of other Member States and third countries, even if refused, shall be logged or documented by the Passenger Information Unit concerned and the competent authorities for the purposes of verification of the lawfulness of the data processing, self-monitoring and ensuring proper data integrity and security of data processing, in particular by the national data protection supervisory authorities. These logs shall be kept for a period of five years unless the underlying data have not yet been deleted in accordance with Article 9(4) at the expiry of those five years, in which case the logs shall be kept until the underlying data are deleted.
5. Member States shall ensure that air carriers, their agents or other ticket sellers for the carriage of passengers on air service inform passengers of flights at the time of booking a flight and at the time of purchase of a ticket in a clear and precise manner about the transmission data to the Passenger Information Unit, the purposes of their processing, the period of data retention, their possible use to prevent, detect, investigate or prosecute terrorist offences and serious crime, the possibility of exchanging and sharing such data and their data protection rights, in particular the right to complain to the competent national data protection supervisory authority. The same information shall be made available by the Member States to the public.
6. Without prejudice to Article 10, Member States shall in particular lay down effective, proportionate and dissuasive penalties to be imposed in case of infringements of the provisions adopted pursuant to this Directive.

Article 12 National supervisory authority
Each Member State shall provide that the national supervisory authority or authorities established to implement Article 25 of Framework Decision 2008/977/JHA shall also be responsible for advising on and monitoring the application within its territory of the provisions adopted by the Member States pursuant to the present Directive. The further provisions of Article 25 Framework Decision 2008/977/JHA shall be applicable.

CHAPTER IV IMPLEMENTING MEASURES

Article 13 Common protocols and supported data formats
1. All transfers of PNR data by air carriers to the Passenger Information Units for the purposes
of this Directive shall be made by electronic means or, in the event of technical failure, by any other appropriate means, for a period of one year following the adoption of the common protocols and supported data formats in accordance with Article 14.
2. Once the period of one year from the date of adoption, for the first time, of the common
protocols and supported data formats by the Commission in accordance with paragraph 3, has elapsed, all transfers of PNR data by air carriers to the Passenger Information Units for the purposes of this Directive shall be made electronically using secure methods in the form of those accepted common protocols which shall be common to all transfers to ensure the security of the data during transfer, and in a supported data format to ensure their readability by all parties involved. All air carriers shall be required to select and identify to the Passenger Information Unit the common protocol and data format that they intend to use for their transfers.
3. The list of accepted common protocols and supported data formats shall be drawn up taking due account of ICAO regulations and, if need be, adjusted, by the Commission by means of implementing acts in accordance with the procedure referred to in Article 14(2).
4. As long as the accepted common protocols and supported data formats referred to in paragraphs 2 and 3 are not available, paragraph 1 shall remain applicable.
5. Each Member State shall ensure that the necessary technical measures are adopted to be able to use the common protocols and data formats within one year from the date referred to in paragraph 2.

Article 14 Committee procedure
1. The Commission shall be assisted by a committee. That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers. The Commission shall not adopt the draft implementing act when no opinion is delivered by the Committee and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

CHAPTER V FINAL PROVISIONS

Article 15 Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive at the latest 36 months after the entry into force of this Directive. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 17 Review
1. The Council shall, at the appropriate level, discuss regularly the practical experiences and relevant issues within the scope and subject matter of the Directive.
2. On the basis of these discussions as well as other information provided by the Member States, including the statistical information referred to in Article 18 (2), the Commission shall undertake a review of the operation of this Directive and:
(a) within two years after the date mentioned in Article 15(1) submit a report to the European Parliament and the Council on the feasibility and necessity of including all or selected intra-EU flights in the scope of this Directive on a mandatory basis, taking into account the experience gained by Member States, especially those Member States that in accordance with Article 1a collect PNR with regard to intra-EU flights,
(b) within four years after the date mentioned in Article 15(1) submit a report to the European Parliament and the Council on all other elements of this Directive and on the feasibility and necessity of including transportation providers other than air carriers in the scope of this Directive, taking into account the experience gained by Member States, especially those Member States that collect PNR from other transportation providers.
3. If appropriate, in light of the review referred to in paragraph 2, the Commission shall make a legislative proposal to the European Parliament and the Council with a view to amending this Directive.

Article 18 Statistical data

1. Member States shall provide on a yearly basis the Commission with a set of statistical information on PNR data provided to the Passenger Information Units. These statistics shall not contain any personal data.
2. The statistics shall as a minimum cover:
1. total number of passengers whose PNR data were collected and exchanged;
2. number of passengers identified for further scrutiny;
3. number of subsequent law enforcement actions that were taken involving the use of PNR data;
3. On a yearly basis, the Commission shall provide the Council with cumulative statistics referred to in Article 18(1).

Article 19 Relationship to other instruments
1. Member States may continue to apply bilateral or multilateral agreements or arrangements
between themselves on exchange of information between competent authorities, in force when this Directive is adopted, in so far as such agreements or arrangements are compatible with this Directive.
2. This Directive is without prejudice to any obligations and commitments of Member States or
of the Union by virtue of bilateral and/or multilateral agreements with third countries.

Article 20 Entry into force
This Directive shall enter into force the twentieth day following that of its publication in the Official Journal of the European Union.
This Directive is addressed to the Member States in accordance with the Treaties.
Done at Brussels,
For the European Parliament For the Council
The President The President

ANNEX I Passenger Name Record data as far as collected by air carriers
(1) PNR record locator
(2) Date of reservation/issue of ticket
(3) Date(s) of intended travel
(4) Name(s)
(5) Address and contact information (telephone number, e-mail address)
(6) All forms of payment information, including billing address
(7) Complete travel itinerary for specific PNR
(8) Frequent flyer information
(9) Travel agency/travel agent
(10) Travel status of passenger, including confirmations, check-in status, no show or go show information
(11) Split/divided PNR information
(12) General remarks (including all available information on unaccompanied minors under 18 years, such as name and gender of the minor, age, language(s) spoken, name and contact details of guardian on departure and relationship to the minor, name and contact details of guardian on arrival and relationship to the minor, departure and arrival agent)
(13) Ticketing field information, including ticket number, date of ticket issuance and one-way tickets, Automated Ticket Fare Quote fields
(14) Seat number and other seat information
(15) Code share information
(16) All baggage information
(17) Number and other names of travellers on PNR
(18) Any Advance Passenger Information (API) data collected (inter alia document type, document number, nationality, country of issuance, date of document expiration, family name, given name, gender, date of birth, airline, flight number, departure date, arrival date, departure port, arrival port, departure time, arrival time)
(19) All historical changes to the PNR listed in numbers 1 to 18.

ANNEX II
1. participation in a criminal organisation,
2. trafficking in human beings,
3. sexual exploitation of children and child pornography,
4. illicit trafficking in narcotic drugs and psychotropic substances,
5. illicit trafficking in weapons, munitions and explosives,
6. fraud,
7. laundering of the proceeds of crime,
8. computer-related crime,
9. environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
10. facilitation of unauthorised entry and residence,
11. illicit trade in human organs and tissue,
12. kidnapping, illegal restraint and hostage-taking,
13. organised and armed robbery,
14. illicit trafficking in cultural goods, including antiques and works of art,
15. forgery of administrative documents and trafficking therein,
16. illicit trafficking in hormonal substances and other growth promoters,
17. illicit trafficking in nuclear or radioactive materials,
18. unlawful seizure of aircraft/ships,
19. sabotage, and
20. trafficking in stolen vehicles.

LGBTI ASYLUM-SEEKERS: THE CJEU SENDS MIXED MESSAGES

by Professor Steve Peers

ORIGINAL PUBLISHED HERE

Many countries worldwide still impose severe criminal sanctions and other forms of ill treatment on people who are gay, lesbian, transgender or intersex (LGBTI). Fortunately, according to the CJEU, any non – EU citizen suffering persecution on grounds of sexual orientation can seek asylum in the EU, claiming that they are part of a ‘particular social group’ being persecuted, in accordance with the EU’s qualification Directive.

The Court’s prior case-law (the X, Y and Z judgment of 2013) further clarifies that they do not have to keep their sexuality hidden in their country of origin in order to claim refugee status. But the mere existence of criminal law prohibitions in the country of origin doesn’t necessarily mean that LGBTI asylum-seekers are being persecuted: the crucial question is whether such laws are actually being enforced.

Before getting to the issue of persecution, though, how can the authorities check whether asylum-seekers are gay or lesbian in the first place? In today’s judgment in A, B and C, the CJEU rules out the most obnoxious forms of procedures to determine sexual orientation, but still leaves some leeway for dubious behaviour by national authorities.

The judgment

Asked by a Dutch court to clarify what national authorities can do to establish the sexual orientation of asylum seekers, the CJEU begins by stating that a mere self declaration by the asylum seeker is not sufficient. This is only the starting point of the assessment.

Although EU legislation does not address the issue of the credibility of asylum seekers in much detail, the CJEU states that the process of determining credibility must be consistent with the EU Charter of Fundamental Rights. In principle, the same rules apply to all categories of asylum seekers, but they can be adapted to particular groups.

First of all, the CJEU states that questions ‘based on stereotypical notions may be useful’ to national authorities. But they cannot base their decisions purely on such notions, and the asylum seeker’s inability to answer such questions cannot mean that he or she has no credibility.

Secondly, the CJEU rules against detailed questioning about asylum seekers’ sex life, on the grounds that this would breach Article 7 of the Charter (the right to privacy). (On the questions which are asked in practice, see Colin Yeo’s earlier poston the Free Movement blog).

Thirdly, the CJEU rules that LGBTI asylum-seekers should not perform sex acts, produce films of their sexual activities or undergo medical testing to prove their orientation. This would breach Article 1 of the Charter (the right to human dignity) as well as Article 7.

Finally, the CJEU rules that Member States cannot assume that LGBTI asylum-seekers lack credibility simply because they didn’t raise the issue of their sexuality as soon as possible, in light of the sensitivity of the topic. However, the Court does not rule on some additional procedural issues considered in the Opinion of the Advocate-General.

Comments

The Court’s judgment frees LGBTI asylum-seekers from many particularly obnoxious forms of testing and questioning. In particular, it frees them from phallometric testing. The Court didn’t mention the details of this process, but suffice it to say that it involves examining men’s physical reaction to viewing pornography. The judgment should have added that this process is also a breach of Article 4 of the Charter, as a form of degrading treatment.

As for producing films or engaging in sex acts, the Court was right to rule out implicitly the possible waiver of privacy rights on the grounds that other asylum-seekers would be pressured to do the same thing.

The ruling also usefully clarified that LGBTI asylum-seekers do not need to declare their sexual orientation as soon as possible. This takes account of the social reality for people who have just fled countries where their personal identity is taboo.

On the other hand, today’s judgment is unhelpful to the extent that it refers to the possibility of ‘useful stereotypes’ when questioning LGBTI asylum-seekers. Although the Court only refers in this context to questions about the existence of NGOs supporting LGBTI individuals, many other stereotypes exist. The Court ruling might be interpreted to endorse assumptions that (for instance) gay men don’t like sports, or that lesbians have short hair. Such stereotypes might be only mildly annoying on a day – to – day basis. But if they are used in order to reject an asylum claim, they could be fatal to the person concerned.

Admittedly, the Court rules out relying on the answers to such questions as the sole basis for denying asylum. Nor is it possible to decide that an asylum seeker who can’t answer such questions has no credibility. But it is still possible that an asylum seeker will lose credibility if he or she gives the ‘wrong’ answer to these questions; and those answers can form part of the assessment of credibility.

More broadly, the Court’s approach fails to take sufficient account of the wide diversity of the expression of human sexual identity, especially in countries where homosexuality is taboo.

While some questions relating to LGBTI asylum-seekers’ credibility must be acceptable, given that the Court ruled out self – declaration as an automatic route to establish such credibility, the Court could surely have found a better form of words than ‘useful stereotypes’. It could, for instance, have endorsed the relevant UNHCR guidelines discussed in the Advocate-General’s opinion.

Although there are many positive aspects of today’s judgment, the CJEU’s unjustified aversion to human rights soft law may cause problems for many LGBTI asylum-seekers in practice.

The End of the Transitional Period for Police and Criminal Justice Measures Adopted before the Lisbon Treaty. Who Monitors Trust in the European Justice Area?

Abstract of a study submitted to the European Parliament Civil Liberties Committee. (LIBE) THE FULL TEXT IS AVAILABLE HERE

Authors: Prof. Valsamis Mitsilegas, Head of Department of Law and Professor of European Criminal Law, Queen Mary, University of London Dr Sergio Carrera, Senior Research Fellow and Head of Justice and Home Affairs Section, Centre for European Policy Studies, CEPS Dr Katharina Eisele, Researcher, CEPS

This Study examines the legal and political implications of the forthcoming end of the transitional period, enshrined in Protocol 36 to the EU Treaties, applicable to legislative measures dealing with police and judicial cooperation in criminal matters and adopted before the entry into force of the Lisbon Treaty. The analysis focuses on the meaning of the transitional period for the wider nature and fundamentals of the European Criminal Justice area and its interplay in the Area of Freedom, Security and Justice (AFSJ). Particular attention is paid to its multifaceted consequences of ‘Lisbonisation’ as regards supranational legislative oversight and judicial scrutiny, not least by the European Parliament in this context, as well as its relevance at times of rethinking the relationship between the principle of mutual recognition of judicial decisions and the fundamental rights of the defence in criminal matters in the AFSJ.

Legal Framework of the Transition

The transitional provisions envisaged in Protocol 36 have limited some of the most far-reaching innovations introduced by the Treaty of Lisbon over EU cooperation in justice and home affairs (JHA) for a period of five years (1 December 2009 to 1 December 2014). Such limits include restrictions on the enforcement powers of the European Commission and of the judicial scrutiny of the Court of Justice of the European Union over legislative measures adopted in these fields before the entry into force of the Lisbon Treaty under the old EU Third Pillar (Title VI of the former version of the Treaty on the European Union). Moreover, Protocol 36 provides for special ‘opt-out/opt-in’ possibilities for the UK. The scope and rules set out in Protocol 36 are of a highly complex and technical nature. The end of the transitional period enshrined in Protocol 36 reveals a complex conglomerate of legal provisions and procedures primarily designed for meeting the interest of some Member States’ governments to limit EU scrutiny, supervision and enforcement powers over national implementation and compliance with European law on police and criminal justice cooperation. This is a critical juncture because the transitional provisions of Protocol 36 come to a formal end on 1 December 2014.

Findings and Challenges

The main legal and political challenges related to the transitional provisions of Protocol 36 are multifaceted. The forthcoming end of the transitional period will only partially address the diverse legal landscape of fundamental rights protection in Europe’s area of criminal justice. The Study argues that the non-participation of the UK in EU legal instruments dealing with suspects’ rights in criminal proceedings undermines severely the effective operability of pre-Lisbon Treaty instruments driven by the mutual recognition principle, such as the European Arrest Warrant, even if from a ‘black letter’ law perspective the UK is entitled to ‘pick and choose’. In addition, the complex legal setting has contributed to creating legal uncertainty and lack of transparency characterising EU criminal justice instruments and their common applicability and implementation across the EU. The ambivalent position of the UK opens up the emergence of different and even competing areas of justice as well as dispersed levels of Europeanisation where enforcement of the principle of mutual recognition and protection of suspect rights are variable and anachronistic across the Union.

That notwithstanding, the Study argues that one of the most far-reaching consequences of the end of the transitional period will be the shifting of supervision on compliance and faithful implementation of EU law on police and criminal justice from domestic authorities in the Member States to EU institutional instances. The end of the transition will most significantly mean the liberalisation of ‘who monitors trust in the AFSJ’. This shift will for the first time ensure transnational legal, judicial and democratic accountability of Member States’ laws and practices implementing EU law in these contested areas, in particular the extent to which EU legislation is timely and duly observed by national authorities.

Protocol 36 does not foresee a formal role for the European Parliament in the decisions involved in the transition. Yet, the Parliament does have responsibility for the partly highly sensitive content of the Third Pillar measures directly affecting the citizens’ rights and freedoms and as co-legislator in post-Lisbon Treaty laws in these same domains. The lack of an effective and independent evaluation mechanism of EU criminal justice instruments based on the principle of mutual recognition poses a major challenge to legal and democratic accountability.

Protocol 36 has primarily aimed at limiting the degree of supranational (EU) legal, judicial and democratic scrutiny concerning EU Member States’ obligations in the EU Area of Justice. The legal patchwork of UK participation in pre- and post-Treaty of Lisbon criminal justice acquis indeed sends a critical signal of incoherency in the current delineation of the European Criminal Justice Area. The Study argues that the varied landscape resulting from the selective participation of the UK in EU criminal law measures poses significant challenges for legal certainty, the protection of fundamental rights in Europe’s area of criminal justice and the overall coherence of EU law.

Article 82(2) TFEU grants express EU competence to legislate on rights of the defence in criminal procedures where necessary to facilitate the operation of the principle of mutual recognition in criminal matters. The legality of post-Lisbon legislation on defence rights is thus inextricably linked with the effective operation of mutual recognition in criminal matters, including of the Framework Decision on the European Arrest Warrant. This is supported by pertinent case law of the Court of Justice of the European Union (CJEU), which ruled against previous UK requests to participate in the Visa Information System, or the Frontex and biometrics regulations on the basis of a teleological and contextual approach focusing on the coherence of EU law.

The Study argues that defence rights should not be negotiable at the expense of citizens’ and residents’ rights and freedoms. There is a direct causal link under EU primary law between the adoption of EU defence rights measures and the effective operation of mutual recognition enforcement instruments. Differing levels of EU Member State commitment to and participation in the fundamental rights of individuals in criminal proceedings run counter to a teleological approach which respects fully the objectives and the integrated nature of the AFSJ.

Recommendations

Increasing Coherency and Practical Operability: Suspects Rights as Sine qua non

The transition envisaged in Protocol 36 may well lead to incoherency and practical inoperability of the European Criminal Justice Area. The European Parliament as co-legislator in EU criminal justice law has an active role to play at times of ensuring that a common understanding of ‘ensuring coherency’ and ‘practical operability’ of the EU AFSJ is firmly anchored on strong defence rights and fair trial protection (rights of suspected or accused persons) and a sound rule of law-compliant (on-theground) implementation across the domestic justice arenas of EU Member States.

Promoting Consolidation and Codification — Better Linking of Mutual Recognition and Rights of Suspects in Criminal Proceedings

The European Parliament should give priority at times of implementing previous inter-institutional calls for consolidation and even codification of existing EU rules and instruments dealing with judicial cooperation in criminal matters. The new LIBE Committee should follow up the calls outlined in the European Parliament Report with recommendations to the Commission on the review of the European Arrest Warrant (2013/2109(INL). This should go along with the full accomplishment of the EU Roadmap of suspects’ rights in criminal proceedings as well as the procedural rights package.

Implementation and Evaluation — A Stronger Democratic Accountability

The European Parliament should give particular priority to better ensuring Member States’ timely and effective implementation of pre- and post-Lisbon Treaty European criminal law. An effective and independent evaluation mechanism should be developed following the template provided by the new 2013 Schengen Evaluation Mechanism, in which the European Parliament has played a role in the decision-making and implementation. This template should be followed at times of implementing any future system for criminal justice cooperation.

The Study starts by situating the discussion and briefly explaining the material scope and particulars featuring the transitional period in Protocol 36 in Section 2. Section 3 then moves into locating the debate in the specific context of the UK, and outlining its casuistic or privileged position in respect of the expansion of `supranationalism’ over EU police and criminal justice cooperation. Section 4 identifies a number of cross-cutting dilemmas and challenges affecting the transitional period, in particular those related to the impact of activating the Commission and Luxembourg Court’s legal and judicial scrutiny powers, questions of incoherencies due to UK’s variable participation and the obstacles to practical operability. Section 5 lays down three potential scenarios for the way forward in what concerns issues of fragmentation and coherence, reforming old EU Third Pillar law and the EAW while ensuring their added value, and questions related to implementation, consolidation and codification of EU criminal law. Section 6 offers some conclusions and puts forward a set of policy suggestions to the European Parliament and its LIBE Committee.

Some questions to the would-be Commissioner for Better Regulation, Fundamental Rights and Rule of Law (Timmermans)

by Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be Commissioners for Better Regulation, Fundamental Rights and Rule of Law (Timmermans) will be questioned tomorrow by Members of the European Parliament (MEPs), to determine whether the EP should vote to confirm them in office. MEPs have already asked some written questions and the would-be Commissioner have replied. However, during the oral hearing will be an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments.
Rather strangely the hearing will not follow to the EP very detailed internal rules (of art.118 and Annex XVI (*) which require that hearing should take place before the Parliamentary committees Candidate Vice President Timmermans will instead be heard by the Conference of President of political Groups.

1.Rule of law / implementation of EU law
The confidence of all EU citizens and national authorities in the functioning of the rule of law in the Member States is vital to increase the mutual trust and to further develop the EU into “an area of freedom, security and justice without internal frontiers”.
In your written reply you strongly support the recent Commission proposal for a “common rule of law framework (COM(2014)158 as repeatedly advocated by the European Parliament (but criticized by the Council legal Service). However such an exercise risk which should cover all the EU member states, risk to be meaningless if the Commission does not strengthen the mechanisms which implement the principle of sincere cooperation with and between the MS. For instance there is no ground in the Treaty which justify confidential meetings between the Commission and the MS (even in the framework of the so called “EU Pilot mechanism”) when legal certainty on the exact scope of EU citizens rights and obligations are at stake.
As first steps to strengthen the rule of law would not then be appropriate :
– to update the way how the Commission on a daily basis debates with the Member states the implementation of EU legislation?
– make public the MS implementation plans as well as the table of correspondence between EU and national rules ?
– to implement, (five years after the Lisbon Treaty !), the art.70 mechanism on “objective and impartial evaluation of the implementation of the Union policies” in the FSJA by keeping informed the European and national parliaments ?
– to take stock every year of the ruling of the European Courts and of the measures taken at national level ?

2. Charter of Fundamental rights as “roadmap for the EU legislator ?
In a recent ruling the Court of Justice stroke down for the first time an EU Directive (the Data Retention Directive 2006/24) because “.., the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter. ” According to the CJEU the Directive “..does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter” and moreover “does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured…” In other terms from now on the Court of Justice will require a strict assessment of the proportionality and necessity of measures that constitute serious restrictions to fundamental rights, however legitimate the objectives pursued by the EU legislature.
On the basis of this landmark ruling do you not consider your priority to revise under the proportionality perspective the legislation falling in judicial and police cooperation in criminal matters adopted before the entry into force of the Charter and of the Treaty of Lisbon ?
Will you commit to develop a stronger and more transparent strategy to deal with infringements of EU law where the rights in the Charter are threatened by a Member State’s non-existent or incorrect implemenation of its EU law obligations?
Will not be sensible, taking in account your attachment to the REFIT exercise to review the legislation by establishing “sunset clauses” for measures limiting EU citizens rights? Moreover, by sticking on data protection aspects do you not consider that this ruling raise even bigger doubts on the compatibility with the proportionality principle of the EU-US agreements on PNR and TFTP and of the legislative proposals submitted by the Commission on the EU-PNR and the “Entry-Exit” (not to speak of the lack of compliance of the proposal on trusted traveller with the principle of non discrimination) ? Continue reading “Some questions to the would-be Commissioner for Better Regulation, Fundamental Rights and Rule of Law (Timmermans)”

DATA RETENTION: A LANDMARK COURT OF JUSTICE’s RULING (1)

SOURCE : EUROPEANLAWBLOG
Written by Orla Lynskey

JOINED CASES C-293/12 AND 594/12 DIGITAL RIGHTS IRELAND AND OTHERS: THE GOOD, THE BAD AND THE UGLY

In its eagerly anticipated judgment in the Digital Rights Ireland case, the European Court of Justice held that the EU legislature had exceeded the limits of the principle of proportionality in relation to certain provisions of the EU Charter (Articles 7, 8 and 52(1)) by adopting the Data Retention Directive. In this regard, the reasoning of the Court resembled that of its Advocate General (the facts of these proceedings and an analysis of the Advocate General’s Opinion have been the subject of a previous blog post). However, unlike the Advocate General, the Court deemed the Directive to be invalid without limiting the temporal effects of its finding. This post will consider the Court’s main findings before commenting on the good, the bad and the ugly in the judgment.

The Court’s Findings

In reaching this conclusion, the Court reasoned as follows. It first narrowed the multiple questions referred by the Irish and Austrian courts down to one over-arching issue, whether the Data Retention Directive is valid in light of Articles 7, 8 and 11 of the Charter (setting out the rights to privacy, data protection and freedom of expression respectively). It then conducted its assessment in three parts.

First, it examined the relevance of these Charter provisions with regard to the validity of the Data Retention Directive. Although the Court recognised the potential impact of data retention on freedom of expression, it chose not to examine the validity of the Directive in light of Article 11 of the Charter. It noted that the Directive must be examined in light of Article 7 as it ‘directly and specifically affects private life’ and in light of Article 8 as it ‘constitutes the processing of personal data within the meaning of that article and, therefore necessarily has to satisfy the data protection requirements arising from that article’[29].

Second, it considered whether there was an interference with the rights laid down in Articles 7 and 8 of the Charter. It noted that the Data Retention Directive derogates from the system of protection set out in the Data Protection Directive and the E-Privacy Directive [32]. It cited Rundfunk as authority for the proposition that an interference with the right to privacy can be established irrespective of whether the information concerned is sensitive or whether the persons concerned have been inconvenienced in any way [33]. The Court therefore held that the obligations imposed by the Directive to retain data constitutes an interference with the right to privacy [34] as does the access of competent authorities to that data [35]. The Court also held that the Directive interferes with the right to data protection on the mystifyingly simplistic grounds that ‘it provides for processing of personal data’ [36]. It observed that these interferences were both wide-ranging and particularly serious [37].

The Court then, thirdly, assessed whether these interferences with the Charter rights to privacy and data protection were justified. According to Article 52(1) of the Charter, in order to be justified limitations on rights must fulfil three conditions: they must be provided for by law, respect the essence of the rights and, subject to the principle of proportionality, limitations must be genuinely necessary to meet objectives of general interest.
The Court held that the essence of the right to privacy was respected as the Directive does not permit the acquisition of content data [39] and the essence of the right to data protection was respected as the Directive requires Member States to ensure that ‘appropriate technical and organisational measures are adopted against accidental or unlawful destruction, accidental loss or alteration of data’ [40].
With regard to whether the interference satisfies an objective of general interest, the Court distinguished between the Directive’s ‘aim’ and ‘material objective’: it noted that the aim of the Directive is to harmonise Member States’ provisions regarding data retention obligations while the ‘material objective’ of the Directive is to contribute to the fight against serious crime [41].
The Court observed that security is a right protected by the EU Charter and an objective promoted by EU jurisprudence [42]. It therefore held that the Data Retention Directive ‘genuinely satisfies an objective of general interest’ [44] and proceeded to analyse the proportionality of the Directive.

The Court effectively adopted a two-pronged proportionality test, considering whether the measure was appropriate to achieve its objectives and did not go beyond what was necessary to achieve them [46].
Applying the ECtHR’s Marper judgment by analogy, it noted that factors such as the importance of personal data protection for privacy and the extent and seriousness of the interference meant the legislature’s discretion to interfere with fundamental rights was limited [47-48]. It held that the data retained pursuant to the Directive allow national authorities ‘to have additional opportunities to shed light on serious crime’ and are ‘a valuable tool for criminal investigations’ [49]. Therefore, it found that the Directive was suitable to achieve its purpose.

With regard to necessity, it noted that limitations to fundamental rights should only apply in so far as is strictly necessary [52] and that EU law must lay down clear and precise rules governing the scope of limitations and the safeguards for individuals [54]. It held that the Directive did not set out clear and precise rules regarding the extent of the interference [65]. It highlighted several elements of the Directive which fell short in this regard.
By applying to all traffic data of all users of all means of electronic communications the Directive entailed ‘an interference with the fundamental rights of practically the entire European population’ [56] and did not require a relationship between the data retained and serious crime or public security [58-59].
Moreover, no substantive conditions (such as objective criterion by which the number of persons authorised to access data can be limited) or procedural conditions (such as review by an administrative authority or a court prior to access) determined the limits of access and use to the data retained by competent national authorities [60-62]. Nor did the Directive determine the time period for which data are retained on the basis of objective criteria [64-65].

The Court also held that the Directive did not set out clear safeguards for the protection of the retained data. This finding was supported by the Court’s observation that the rules in the Directive were not tailored to the vast quantity of sensitive data retained and to the risk of unlawful access to these data [66]. Rather, the Directive allowed providers to have regard to economic considerations when determining the technical and organisational means to secure these data [67]. Moreover, the Directive did not specify that the data must be retained within the EU and thus within the control of national Data Protection Authorities [68]. For these reasons, the Directive was declared invalid by the Court [69].

The Good, the Bad and the Ugly

The Good The judgment is to be welcomed for its end result – the invalidity of the Directive – as well as for many other reasons. It is a victory for grassroots civil liberties organisations and citizen movements: the preliminary references stemmed from actions taken by Digital Rights Ireland – an NGO – and just under 12,000 Austrian residents. More of these types of initiatives are needed in order to assure effective privacy and data protection. From a more substantive perspective, the judgment also recognises the dangers posed by aggregated meta-data – that it may ‘allow very precise conclusions to be drawn concerning the private lives’ of individuals [27] – and by data retention more generally – that it ‘is likely to generate in minds of the persons concerned the feeling that their private lives are the subject of constant surveillance’[37]. It also acknowledges that such data retention may have a chilling effect on individual freedom of expression [28].

The Bad Nevertheless, some aspects of the judgment are less welcome. Most notably here, the Court glosses over the fact that it assesses the proportionality of the Directive in light of its ‘material objective’ – crime prevention – rather than its stated objective – market harmonisation. This sits uncomfortably with the Court’s finding in Ireland v Council that the Directive was enacted on the correct legal basis as its predominant purpose was to ensure the smooth functioning of the EU internal market. The Court also incorrectly applies Article 8 of the EU Charter. Not only does it consider that there is an interference with this right every time data are processed [36], it also fails to consider how the application of this right can be applied to a piece of legislation which pursues law enforcement objectives. The Data Protection Directive excludes data processing for law enforcement purposes from its scope (Article 3(2)) and the right to Data Protection should, pursuant to Articles 51(2) and 52(2) of the Charter, be interpreted in light of and reflect the scope of the Directive. This conundrum is conveniently overlooked by the Court.

And the Ugly However, the most disappointing element of the judgment, like the Opinion of the Advocate General, is that it does not query the appropriateness of data retention as a tool to fight serious crime [49]. Given the prominence of this issue in both the EU and the US in the post-PRISM period, empirical evidence is needed to justify this claim.

Written by Orla Lynskey Posted in EU constitutional law, Fundamental rights, General, Internal Market, Proportionality and Subsidiarity Tagged with article 7 Charter, article 8 Charter, data retention directive, Directive 2002/58/EC, directive 2006/24/EC, Joined Cases C-293/12 and 594/12 Digital Rights Ireland ltd and Seitlinger and others, personal data, Privacy, proportionality, right to data protection
– See more at: http://europeanlawblog.eu/?p=2289#more-2289

The EP and the Council agree on the new EU legal framework for seasonal workers

by Emilio De Capitani

After more than three years of negotiations the European Parliament has finally approuved (with 498 votes in favour 56 aginst and 68 abstentions) on February 5th the agreement with the Council on the new legal framework for seasonal workers in the European Union. The text will be finalised and linguistically revised in the coming weeks published in the Official Journal and should be transposed in national law after 30 months since its entry into force (end of 2016 or beginning of 2017)

It will replace a non binding EU Council Resolution which dates back to 1994 and which included some elements defining the notion of “seasonal” worker. According to the new Directive ’seasonal worker’ “means a third-country national who retains his or her principal place of residence in a third country and stays legally and temporarily in the territory of a Member State to carry out an activity dependent on the passing of the seasons”. In more plain terms seasonal workers are people generally engaged in non- or low-skilled economy sectors of the receiving country’s in particular in agriculture during the planting or harvesting period, or in tourism in hotels and catering in particular during the holiday period.(1) Regrettably for this kind of activities the risk of exploitation and sub-standard working conditions threatening the workers’ health and safety is very high also due to the fact that they are very often linguistically or geographically isolated. Around 100.000 people in the EU could fall currently in this category of workers (2).

The main objective of the new legislation is to overcome the existing patchwork of national legislation and of bilateral agreements by establishing the first EU scheme on circular migration where workers while keeping their residence outside the EU could have the chance to come in the EU every year for the same season (re-entry would be facilitated for third-country nationals who were admitted to the Member State as seasonal workers at least once within the previous five years).

Due to the very different economies in the MS (think to the situation which could exist in Finland or in Greece) it will be up to the MS when transposing the Directive to define in consultation with social partners, those sectors of employment which include activities which can be considered of “seasonal” nature.

The maximum period of stay will be between five and nine months in any 12‐month period and non EU seasonal workers may work for more than one employer during that period. For stays not exceeding three months, the provisions of the Directive shall apply without prejudice to the Schengen acquis. The Seasonal worker candidate should have a valid work contract or, a binding job offer which specifies the place and type of the work, duration of employment, the remuneration and the working hours per week. He should give evidence of having applied for sickness insurance and will have adequate accommodation. For admission for stays exceeding three months Member States shall issue a long-stay visa, indicating that it is issued for the purpose of seasonal work or a seasonal worker permit or a seasonal worker permit and a long-stay visa, (if the long-stay visa is required under national law for entering the territory). Most importantly the applicants must also also have sufficient resources without having recourse to Member States social assistance systems.

The main improvement arising from the new Directive will be that seasonal workers will be granted equal treatment with EU nationals at least with regard to (inter alia) terms of employment, including the minimum working age, and working conditions, including pay and dismissal, working hours, leave and holidays, the right to strike, education and vocational training, recognition of diplomas, etc. Member States may restrict equal treatment, particular with regard to access to certain social assistance.

Member States may determine whether the application is to be made by a third country national or by the employer (or both). Member States shall also designate the authorities competent to receive and decide on the application for and to issue a seasonal worker permit following a single application procedure.

Effective mechanisms through which seasonal workers may lodge complaints against their employers directly or through third parties, and measures protecting against dismissal or other adverse treatment by the employer as a reaction to a complaint must also be foressen. The employer shall be liable to pay compensation to the seasonal worker as it will be the case when the employer is a subcontractor, the main contractor and any intermediate subcontractor who have not undertaken due diligence obligations as defined by national law.

Sanctions against employers who have not fulfilled their obligations shall be “effective, proportionate and dissuasive” (following the classical “Greek Maize” formula).

The draft Directive list also the cases when an application may be rejected. This will be notably the case when the vacancy in question could be filled by nationals of the Member State concerned or by other Union citizens, or by third-country nationals lawfully residing in the Member State (principle of “Union preference”). It can also be rejected when the applicant might pose a threat to public policy, public security or public health.
Other grounds of rejection could arise from employer’s misgivings (when he has been sanctioned for undeclared work and/or illegal employment or where the employer’s business is being or has been wound up under national insolvency laws or where the employer has failed to meet its legal obligations regarding social security, taxation, labour rights, working conditions or terms of employment). The authorisation for the purpose of seasonal work granted may also be withdrawn if the third-country national applies for international protection.
Continue reading “The EP and the Council agree on the new EU legal framework for seasonal workers”

NEW!! : subscribe to the first summer school on the EAFSJ…

Roma, 8-11 July
Sala conferenze Fondazione Basso – via della Dogana Vecchia, 5 – Roma

The European Area of Freedom Security and Justice (EAFSJ): scope, objectives, actors and dynamics.

Aim: to take stock of the current state of EAFSJ and of its foreseeable evolution within the next multiannual program 2015-2019 (to be adopted under Italian Presidency at the beginning of the next legislature).
Lenght: 4 one day modules
Subscriptions: on line on the Fondazione Basso internet site : http://www.fondazionebasso.it
Participation fees:
Euro 480,00 (ORDINARY FEE).
Euro 200,00 (FOR STUDENTS / RESEARCHERS) .
(Bank Account of Fondazione Lelio e Lisli Basso – Banca Nazionale del Lavoro Ag. Senato Palazzo Madama: IBAN IT18I0100503373000000002777 ).
Subscriptions should be submitted before June 15th.The Summer School will take place only if a minimum number of subscribers is reached !For further information : tel. 0039.06.6879953 – basso@fondazionebasso.it
Languages: lessons will be mainly in Italian (some lessons will be in English and French), teaching material will be in Italian and/or English, French.
English/Italian translation will be available.
The programme is on the web-site of Fondazione Basso (www.fondazionebasso.it -Tel. 06.6879953 – email: basso@fondazionebasso.it)

July 8th
A Constitutional and Institutional perspective
09h00 am – 06h30 pm

Opening speeches:
Valerio Onida: Freedom, Security and Justice related policies from a constitutional perspective and in relation with international and supranational dimensions
Stefano Manservisi: After the Stockholm Programme : how to preserve the specificity of the European Area of freedom security and Justice related policies by integrating them in the general EU governance and legal framework?

Debate

Freedom Security and Justice as the core of the common constitutional european heritage
Protecting fundamental rights: the impact of the accession of the EU to the ECHR. A common European Constitutional Heritage arising from the Council of Europe and European Union European Courts. What can be expected from the Strasbourg Human Rights Court in areas related to the FSJ?.
Speaker: Giuseppe Cataldi

Freedom Security and Justice as the core of the common constitutional european heritage
Promoting fundamental rights: the European Charter and its impact on EU policies. Even if the Charter does not extend the EU competencies it is now a constitutional parameter to be taken in account not only by the European judges but also by the EU legislature, even for policies designed with a more limited scope.
Speaker:Ezio Perillo

Debate

Evolution and transformation of the principle of Primacy of EU law. Dialogue and mutual influence of European and national Constitutional Courts.
Fifty years after the landmark case of Van Gend en Loos and four years after the Lissabon-Urteil (Bundesverfassungsgericht judgment of 30.6.2009), the tensions between EU “limits” and national “counter-limits” could arise again notably in the EAFSJ area.
Speaker: Oreste Pollicino

The EAFSJ a cross road of European and national founding values (art. 2), as well as for fundamental and European citizenship rights. How manage the indivisibility of rights and a Member States differentiated integration ?
(Opt-in Opt-out Countries). How far can the EU impact on Member States internal legislation (Towards a “reverse Solange” mechanism)? How the EU and Council of Europe can influence national fundamental rights related policies
Speaker: Nicoletta Parisi

The EAFSJ as supranational constitutional area of democracy. From National State to the European Union: what kind of relation between national and european legal orders ?
Sixty years of EU integration have changed the concept of democracy and sovereignty. There is a metamorphosis in National State’ s traditional role and its constitutional elements such as territory, citizenship and sovereign power. The Kantian vision of a peaceful cosmopolitan project mirrors the category of EU citizenship arising in the EAFSJ. Today Habermas developed the concept of “Constitutional patriottism”, underlying a “constitutionalisation” of the European supranational area. What are the pro and cons of this EU perspective ? The post-Lisbon Treaty stressed that the EAFSJ is becoming the embryo of a European public sphere as well as of a first example of supranational democracy.
Speaker: Francesca Ferraro

Debate

July 9th
Institutional dynamics and EU practices
09h30 am – 06h30 pm

The EAFSJ before Lisbon. The intergovernmental cooperation. From “TREVI” via “Schengen” to Amsterdam. The first phase.
How formerly excluded EAFSJ related policies have been integrated into the EU framework. TREVI cooperation, the Schengen agreement (1985) and its 1990 Implementing Convention as well as the Dublin Convention on Asylum.
The emerging notion of supranational space in the Single European Act (1986). The mutual recognition principle in the Internal Market and in EAFSJ-related policies. The Schengen Acquis in the EU legal framework from Amsterdam to Lisbon. Opt-in and Opt-out Countries: the impact of differentiated integration. Schengen relevance and ECJ jurisprudence on the preservation of the Schengen system consistency. From cooperation to integration.
Speaker: Dino Rinoldi

Debate

The EAFSJ after Lisbon (1). How the EAFSJ specificity has been preserved by progressively integrating it in the ordinary EU (communitarized) legal institutional framework. The impact on the EU institutions and on the MS.
Dynamics and the role of the Institutions in promoting, negotiating and implementing the EAFSJ-related policies. European Council, European Parliament, Council of the European Union, Commission and Court of Justice interplaying in the EAFSJ. The preparatory work conducted behind the scene by the Commission Directorates General, the Council working bodies – COREPER, CATS, COSI – and the EP parliamentary committees
Speaker: Antonio Caiola

The EAFSJ after Lisbon (2) How democratic principles are fulfilled in the EAFSJ. The impact of the EP on legislative procedures.
The interparliamentary dialogue and the way how the EP and national parliaments play their role when verifying the subsidiarity and proportionality principles in the EAFSJ policies. The emerging role at EU level of “political families” represented at national European and international level (European political parties, EP political groups, national parties).
Speaker: Emilio De Capitani

Debate

The EAFSJ after Lisbon (3). How EU policies are framed and implemented at national level. How cooperation, mutual recognition and harmonisation are implemented
How EAFSJ policies are implemented at national level. Problems and opportunities arising notably when implementing the mutual recognition of other EU countries’ measures. How intertwined are the EU and national administration in the EAFSJ related policies. Is there complementarity between EU and National strategies? The EU financial levy as a facilitator of mutual EU-national coordination. The emerging role of EU Authorities and Agencies as a support and meeting space also for national administrations (Ombudsman, FRA, EDPS, FRONTEX, EASO, EMCDDA, EUROPOL, OLAF, CEPOL, EUROJUST, …).
Speaker: Lorenzo Salazar

Debate

July 10th
An European space of freedom and rights
09h30 am- 06h30 pm

The EAFSJ after Lisbon (4) Placing the individuale at the heart of EU activities
How EU legislation implements the principles of equality and non-discrimination. The ECJ jurisprudence and the phenomenon of reverse discrimination. EU citizenship-related jurisprudence. Judicial action at national and European level founded on the EU Charter. Infringement of EU founding values and fundamental rights as possible exceptions to the mutual recognition obligations? Fundamental Rights Agency.
Speaker: Valentina Bazzocchi

The EU evolving framework of Transparency, access to documents, principle of good administration, and of classified information
After Lisbon a more transparent independent and efficient EU administration can be founded on Arts 15 and 298 of the TFEU as well as Arts 41 and 42 of the European Charter. However the close intertwining of the EU and the Member States has created a hybrid system of European Classified Information (EUCI), which is particularly relevant in the EAFSJ policies. How do European and national institutions implement the EU principles? How is the principle of good administration secured? What role should the EU Ombudsman play?
Speaker: Deirdre Curtin

Protection of Personal Data. The EU reform.
After the Lisbon Treaty and the merger of the so-called first and third pillars, protection of personal data can be framed in a globally consistent manner. Informational self determination, protection against possible abuses by the private sector as well as by public sector (law enforcement authorities) can now be framed at European level by taking stock of the lessons learned at national and international level (Council of Europe, OECD). How to preserve the role of national authorities and of the new coordinating body.
Speaker: Vanna Palumbo

Freedom of movement border integrated management
Freedom of movement of European citizens as well as of third country nationals in the EU remains a central and controversial issue. The integrated external border management is progressively framed at legislative level (borders, visas..) and implemented at operational level also thanks to the emerging role of Frontex and of the new European networks (SIS II – VIS). New opportunities as well as risks emerge in the definition of the EU-Member State management of internal and external borders
Speaker: Luisa Marin

Debate

European Migratory policies
Objectives, legal framework and operational setting of the EU-Member State policies. Five years after the European Pact on Asylum and Migration (2008), what lessons can be drawn for the next (2015-2019) multiannual programme? What improvements can be foreseen for the EU migration governance at central and national level? How are the Member States implementing the EU legislation? What are the main external aspects of the EU migration policy?
Speaker: Henry Labayle

The European common asylum system (and of EASO and EURODAC)
After the first generation of EU “minimum” rules the EU has now established the Common European Asylum System foreseen by Art. 18 of the Charter and Art 78 of the TFEU by taking account of the jurisprudence of the Luxembourg and Strasbourg Courts. At national level high standards should be granted to avoid the problems found for instance with Greece when implementing the Dublin system. The principle of solidarity still seems to be underexploited. Attention should be paid to the new role of EASO (Reg. (EU) No 439/2010) as well as to the implementation of the EURODAC system.
Speaker: Patricia Van de Peer

Debate

July 11
An European space of security and justice
09h30 am -06h30 pm

Judicial cooperation in civil matters; complement of the freedom of movement?
Judicial cooperation in civil matters has been one of the most dynamic domains after the entry into force of the Lisbon Treaty. Enhanced cooperation took place in matrimonial matters and intellectual property. Special attention will be reserved for the recently revised Brussels I Regulation (which abolished the “exequatur” procedure) as well as for the new Regulations on succession and wills and on mutual recognition of protection measures in civil matters.
Speaker: Filomena Albano

Internal security strategy: crisis prevention and management.
Special attention will be paid to the implementation of the 2010 European Internal Security Strategy and its impact on the cooperation between the EU institutions and agencies as framed by the “Policy Cycle” for the 2013-2017 period. There will also be a presentation of the implementation of PRUM cooperation and of the “availability principle” as well as the way how security- and intelligence-related information is exchanged notably within the framework of the so-called “Swedish Initiative”. The role played by COSI, Europol and of the internal security fund will be presented and debated together with the impact of the up-coming “Lisbonisation” of EU measures adopted before the entry into force of the Lisbon Treaty
Speaker: Sandro Menichelli

Debate

Judicial Cooperation in criminal matters
How judicial cooperation in criminal matters has been developed between countries of different legal traditions (civil and common law). Problems and opportunities arising at each level of cross-border cooperation (open coordination, mutual recognition, legislative harmonisation). The European jurisprudence (Strasbourg and Luxembourg Courts) as well as the impact of the EU Charter. The implementation of the first post-Lisbon measures and impact of the Lisbonisation of former third pillar measures in this domain. Preserving the independence of the judiciary: towards European-wide judiciary quality evaluation systems.
Speaker: Luca De Matteis

The European Public Prosecutor: a pattern also for Member States?
The OLAF Reform and the Eurojust “Lisbonisation” are intermediate phases towards the creation of the European Public Prosecutor’s office (EPPO) (Art. 86 TFEU). The latter will be empowered to bring action also before national courts. The European legislation will determine the general rules applicable to the European Public Prosecutor’s Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions. What will be the impact, the risks and opportunities arising from the creation of this new European Institution?
Speaker: Claudia Gualtieri

How to empower the EU citizens when EAFSJ are shaped and implemented ?
Round Table with the Intervention of Paul Nemitz, Antonie Cahen, Robert Bray Tony Bunyan

Final Debate

PRESENTATION OF THE COURSE

The Treaty of Lisbon and the Charter of Fundamental Rights of the European Union, which entered into force on 1 December 2009, constituted an important step both at the legal level and at the political level in the evolution of the European Union. The aim of the EU now is not only “… to promote peace, its values and the well-being of its peoples”, having presided over, since the end of the Second World War, the longest ever period of peace between European States, but also to achieve “… an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.”

After the Treaty of Lisbon, the policies already provided for in the Maastricht Treaty within the framework of the so-called “third pillar” and originally focused mainly on intergovernmental cooperation and cooperation between administrations, are now to evolve into European “common policies” directly towards the interests of the individual, who is placed “at the heart of European integration.”

It is a Copernican revolution in so far as the Union is called not only to offer “… its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime” (Art. 3 TEU and Title V TFEU) but also to promote (and not only protect) fundamental rights and prevent all forms of discrimination (Art. 10 TFEU) and strengthen EU citizenship (Arts 18-25 TFEU) and with it the democratic principles on which it is based (Title II TEU).

The fact that the competences related to the ASFJ are now “shared” with the Member States (Art. 4 TEU) and are to be focused on the rights of the person brings about a daily interaction between the national and the European level, bringing into play national and European values, rights and objectives.

The process of reciprocal hybridization between the nascent European model and traditional national models is anything but politically painless, as the experience of almost thirty years of Schengen cooperation shows.

The aim of this Summer School is to assess the progress and difficulties encountered by the European institutions and the Member States in implementing the Charter of Fundamental Rights and the objectives set by the European Council in the “Stockholm Programme” of 10 December 2009.

Based on this evaluation, we intend to shed light on the possible priority bearing in mind that:
– it will be necessary to adjust the secondary legislation of the European Union in the light of the values and principles which are now enshrined in the Lisbon Treaty and the Charter of Fundamental Rights (“Lisbonisation”);
– we shall be in the final phase of the accession of the EU to the European Convention on Human Rights;
– at the beginning of the next legislature, we will be entering into a new phase in the European judicial area with the negotiations on the establishment of the European Public Prosecutor and the transition to the ordinary legislative procedure with regard to measures of police and judicial cooperation in criminal matters adopted before the entry into force of the Treaty (the transitional arrangements end on 1 December 2014);
– Member States which have hitherto enjoyed special treatment (Ireland, Denmark and the United Kingdom in particular) should have clarified their position with respect to the new phase of the ASFJ and the Schengen cooperation.

In the course of the next legislature it will also be necessary to promote greater consistency between European and national strategies related to the European area of freedom, security and justice. Just as in the economic sphere, the divergence of national public policies has put at risk the credibility of the common currency, the diversity of standards for the protection of the rights in Member States is straining mutual trust, the application of the principle of mutual recognition and the very credibility of the nascent “European model”. The strengthening of the operational solidarity between Member States’ administrations – which is being developed for example within the framework of Schengen cooperation – must be accompanied by legislative, operational and financial measures that implement solidarity between European citizens and third-country nationals on the territory of the Union.

In this perspective, Italy may play an important role as the new multi-annual programme for 2015-2019 is to be adopted by the second half of 2014 under the Italian Presidency.

Speakers:

Academics:
Valerio Onida, Former President of the Italian Constitutional Court
Giuseppe Cataldi, Pro-rettore Università L’Orientale (Napoli)
Oreste Pollicino, Public comparative law Professor (Università Bocconi – Milano)
Nicoletta Parisi, EU Law Professor (Università Catania)
Francesca Ferraro, Visiting Professor (Università L’Orientale – Napoli)
Dino Rinoldi, International Law Professor (Università Cattolica – Piacenza)
Valentina Bazzocchi, PHD EU Law (Alma Mater Università Bologna)
Deirdre Curtin, Professor of European Law (University of Amsterdam – NL),
Luisa Marin, Assistant Professor of European Law (University of Twente – NL)
Henri Labayle, Professeur de Droit international et européen (Université de Pau et des
pays de l’Adour – France)

Representatives and officials of European and national administrations:
Ezio Perillo (European Civil Service Tribunal)
Stefano Manservisi DG of the Commission DG Home
Paul Nemitz Director at the Commission DG Justice
Antoine Cahen, Patricia Van Den Peer, Claudia Gualtieri (European Parliament)
Filomena Albano, Luca De Matteis, Lorenzo Salazar (Italian Justice Ministery)
Sandro Menichelli (UE Italian Permanent Representation )
Vanna Palumbo (Garante Privacy IT)

Representatives of Civil Society:
Tony Bunyan, Director of Statewatch,Emilio De Capitani, FREE Group Secretary and Visiting Professor (Università L’Orientale – Napoli)