Extradition to non-EU countries: the limits imposed by EU citizenship

ORIGINAL PUBLISHED ON EU LAW ANALYSYS 

Steve Peers

One of the best-known EU laws created the European Arrest Warrant (EAW), which replaced the prior rules governing extradition between Member States. But on the other hand, in principle EU law has nothing to do with extradition to non-EU countries, except where the EU has agreed a treaty on this issue (as it has with the USA and Norway and Iceland), or as regards asylum-seekers (the EU’s asylum procedures law limits their extradition to their country of origin, because it’s necessary to determine first if the country which seeks to prosecute them is in fact persecuting them).

Yesterday’s CJEU judgment in Petruhhin altered this legal position. EU law does apply to such issues, and the Court clarified some relevant issues while leaving others open. Furthermore, the judgment raises the question of future UK/EU relations on extradition following Brexit.

Background

Extradition between the EU and non-EU countries is governed by a combination of national law and bilateral and multilateral treaties – most notably the Council of Europe Convention on Extradition, which has been ratified by all 47 European countries plus three non-EU countries. There are four further Protocols to this Convention, which have been ratified by fewer States.

A key feature of extradition law is that in principle most States will not extradite their own citizens, although within the EU, the EAW law has overruled any absolute ban on surrendering nationals as between Member States. While the refusal to extradite citizens could run a risk of impunity if those citizens commit criminal offences in another country, most States avoid that risk by extending their criminal jurisdiction to cover acts of their citizens committed outside their territory. In fact many EU laws and international treaties require States to assert such extraterritorial jurisdiction as regards specific transnational crimes.

The EAW law says a little about possible conflict between EAWs and extradition requests from third countries. It states simply that in the case of such a conflict, the national authority should decide which takes priority ‘with due consideration of all the circumstances’, including the relevant treaty and ‘the relative seriousness and place of the offences’, the relevant dates of the requests and whether the extradition request or EAW aims to obtain custody of a fugitive for trial or to serve a sentence already imposed.

This compares with the original proposal for the EAW law, which always gave priority to an EAW if the extradition request came from a country which was not party to the Council of Europe Convention. That clause was dropped following intensive lobbying from the US government, while the law was being negotiated in autumn 2001 (the EAW law was largely motivated by the 9/11 terrorist attacks, although it is not limited to terrorist offences).

Judgment

The Petruhhin case concerned an Estonian citizen sought by the Russian government for prosecution for organised crime offences. He was safe from extradition to Russia as long as he stayed in Estonia, since that country will not extradite its nationals outside the EU. But at one point he was arrested in Latvia, which decided to implement the Russian request. While Latvia also refuses to extradite its own citizens outside the EU, an Estonian citizen prima facie obviously cannot rely on that protection.

So Mr Petruhhin tried to rely on his transnational form of citizenship instead, arguing that since he was an EU citizen in another Member State, he was entitled to equal treatment with Latvians – therefore protecting him from extradition from Latvia to Russia, just like them. (Logically if his argument had worked, he would also be protected from extradition from any other Member State which refuses to extradite its own citizens to Russia).

The CJEU ruled first of all that the despite the absence of EU law on this issue, the dispute fell within the scope of EU free movement law, since Mr Petruhhin was exercising free movement rights. Therefore he had a right to equal treatment with nationals of Latvia in principle. However, a breach of that equality right could be justified on the grounds of avoiding impunity from prosecution for alleged criminal offences: Latvia, like most States, extends its criminal jurisdiction to cover acts of its own citizens abroad, but not the acts of citizens of other countries abroad. This distinction between the position of Latvians and citizens of other Member States can justify different treatment as regards protection from an extradition request.

Having said that, the Court added a crucial rider. To limit the effect of its ruling upon free movement rights (the proportionality principle), it ruled that Latvia has to contact the Estonian authorities first, to see if they wish to prosecute him there on the basis of theirextraterritorial jurisdiction, before handing him over to Russia. That’s an important proviso, as many people believe they are more likely to be treated fairly in the courts of their own State. At any rate, this likely means they will have access to defence and court proceedings in their own language, with any pre-trial detention closer to friends and family.

Finally, the Court stated that any extradition to Russia was subject to the ban on torture or other inhuman or degrading treatment set out in Article 4 of the EU Charter of Fundamental Rights, which transposes the standards set out in Article 3 ECHR and the relevant case-law of the European Court of Human Rights on this issue. That means that if there’s a real risk of such treatment in Russia, the fugitive cannot be extradited there in any case. It should be noted that the Charter equally bans extradition to face the death penalty.

Comments

First of all, the Court was correct to assert the link between EU free movement law and extradition to third States, although its rather abstract reasoning could be improved upon. The best argument supporting this part of the ruling is rather that Mr Petruhhin would have been deterred from leaving Estonia for another Member State if he ran a risk of being extradited to Russia every time he left the country.

Next, would EU law also apply to cases where a Member State considers extraditing itsown citizen to a non-EU country? The question may not arise often, since as noted already, many Member States don’t do this at all. But where they do, logically the case law on citizenship of the European Union (as distinct from free movement applies). As developed since the Zambrano judgment, this prevents citizens of their own Member State from being forced outside the EU in principle, as they are thereby deprived of EU citizenship. But logically the same limits apply by analogy: extradition of citizens can be justified on grounds of preventing immunity, but that is qualified if the extraditing State subjects its own citizens to prosecution for acts committed abroad (most do, as noted already).

Third, could there be other grounds justifying extradition to a non-EU state, besides preventing impunity? This isn’t clear from the judgment. But logically the judgment would apply by analogy to cases where a fugitive has already been sentenced to a term of imprisonment. In such cases, Latvia (say) would contact Estonia to see if the latter country could take over the punishment imposed by Russia, pursuant to the Council of Europe treaty on the transfer of prisoners or another relevant international treaty.

Could there be further grounds preventing extradition to a non-EU state, besides the Charter ban on the death penalty and torture et al, and the priority for EAWs? For instance, what if the person concerned has already been tried in a Member State, or in a third State? The EU has a cross-border ban on double jeopardy, but it only applies to Member States and Schengen associates, not to countries like Russia and the USA. Extradition treaties sometimes address this issue, but don’t always cover every double jeopardy scenario. A pending case before the CJEU should clarify this issue.

Next, logically the ruling would also apply by analogy if a third Member State could apply its jurisdiction: say an Estonian in Latvia was wanted by Russia but could potentially be prosecuted or serve a sentence in France, due to an [alleged] assault against a Russian citizen in France, or a French citizen in Russia. (Some countries assert criminal jurisdiction where one of their citizens was a victim of crime).

This brings us to the issue of conflict between an EAW and an extradition request from a non-EU state. The CJEU didn’t have to comment on this issue in its judgment, because no EAW had been issued yet. But the Court’s judgment necessarily means that there is more likely to be such a conflict in future, if Estonia indeed issues an EAW. And if that happens, the new judgment implies that the open-ended conflict rule in the EAW has to give way to the primary law of the Treaties: so the Estonian EAW has to take precedence over the Russian extradition request. The Court has in effect enshrined priority for EAWs over (almost) all non-EU extradition requests, whereas the original Commission proposal, as noted above, would have given such priority only over extradition requests from non-Council of Europe states. Perhaps the Americans should also have lobbied the Court of Justice.

But then, the USA has its own extradition deal already with the EU, as noted at the outset. (The deal with Norway and Iceland has not been ratified yet). The Court says several times in its judgment that the general rules it elaborates here are without prejudice to extradition treaties concluded between the EU and third countries. Presumably it can interpret the EU/USA treaty, since it can interpret any treaties which the EU signs with non-EU states. In fact, there’s a pending case before the CJEU which asks the Court to interpret this very treaty.

Brexit?

This judgment is probably relevant for Brexit. The UK government has recently hintedthat it will seek some continuation of criminal law cooperation with the EU. There will be transitional issues with EAWs pending on Brexit Day, which the EU/UK withdrawal treaty concluded under Article 50 TEU will hopefully address. In fact there are already possible complications arising from Brexit in this area, as there are several challenges in Irelandto the execution of UK EAWs on the grounds that Brexit is coming. The CJEU may well be called on to address these issues even before Brexit Day.

For the position after Brexit, it’s undoubtedly possible for the EU to conclude an extradition arrangement with the UK, as the Court’s judgment actively encourages the EU to sign such treaties. In fact, the judgment might arguably be the basis of an argument for EU exclusive competence over extradition treaties with non-EU countries, on the basis that any Member State agreements would affect the operation of the EAW law, at least as regards EU citizens. That would mean that the UK could no longer sign extradition deals with individual EU countries, but only with the EU as a whole.

If no deal were reached, the UK and EU could fall back on the Council of Europe extradition Convention. But as I have noted before, this would mean far less extradition (and much slower extradition) as compared to the EAW.

If there were a UK/EU deal, Member States may still want to refuse to extradite their own citizens to the UK, as they have under the treaty with Norway and Iceland. But even if they are willing to extradite them to the UK, on whatever treaty basis, it may be arguable on the basis of the new judgment that they can’t, as long as the fugitive can be tried or serve her sentence in the remaining EU. And although the UK can still assist an EU Member State in prosecuting its own citizens, that will be far more expensive for the UK authorities than trying the person in the UK.

Accord politique ou juridique : Quelle est la nature du “machin” conclu entre l’UE et la Turquie en matière d’asile?

ORIGINAL PUBLISHED HERE  on 10 Friday Jun 2016

Par Olivier Cortenet Marianne Dony, Professeurs ordinaires à l’Université libre de Bruxelles,

Alors que trois demandeurs demandeurs d’asile – apparemment deux Pakistanais et un Afghan dans les affaires T-192/16, 193/16 et 257/26 – ont demandé au Tribunal de l’Union Européenne l’annulation de l’accord conclu le 18 mars 2016 entre l’UE et la Turquie, il est permis de s’interroger sur la nature exacte de ce “machin” considéré par le service juridique du Parlement Européen comme un simple accord politique, sachant cependant que la recevabilité du recours sera tout d’abord au coeur des débats…

Les autorités européennes affirment à l’unisson que la « déclaration UE-Turquie », dont le contenu a été détaillé dans un communiqué de presse du Conseil européen du 18 mars dernier, n’est pas un accord international mais une simple déclaration d’intention. Qu’en est-il vraiment, au regard des règles du droit de l’Union européenne et du droit international public ?

Si l’on s’en réfère au droit de l’Union européenne, il est permis d’en douter au vu de la jurisprudence de la Cour de justice (de l’Union européenne).

Ainsi, dans un arrêt du 23 mars 2004, C-233/02, France c. Commission (points 42 à 45), la Cour s’est interrogée sur le point de savoir si des « lignes directrices » finalisées en février 2002 par communication entre les négociateurs des services de la Commission et leurs homologues américains et sur lesquelles aucune signature n’avait été apposée pouvaient être considérées comme un accord international. La Cour a indiqué que le critère décisif était de savoir si ces lignes directrices avaient, ou non, force obligatoire et qu’à cette fin, il fallait s’en référer à l’intention des parties. En l’espèce, la Cour a alors constaté qu’il résulte explicitement du texte de ces lignes directrices que les parties avaient l’intention de les appliquer sur une base volontaire et que de surcroît l’intention des parties de ne pas contracter d’engagements obligatoires avait été à maintes reprises expressément réitérée durant la phase de négociations des lignes directrices. C’est sur cette base que la Cour conclut que ces lignes directrices ne constituent pas un accord international et ne sont donc pas visées par l’article 300 CE, devenu article 218 TFUE.

Par ailleurs, dans l’arrêt du 26 novembre 2014, C-103/12 et C-165/12, Parlement et Commission c. Conseil (points 60 à 74) la Cour a analysé le contenu et le but d’une déclaration relative à l’attribution de possibilités de pêche dans les eaux de l’Union européenne à des navires de pêche battant pavillon » de la République du Venezuela pour considérer qu’elle devait s’analyser comme une offre adressée à cette dernière, subordonnée au respect de certaines conditions précises et que la République du Venezuela  en transmettant des demandes d’autorisation de pêche dans les eaux concernées avait consenti à cette offre. Elle a dès lors conclu qu’un accord avait bien été conclu entre ces dernières, en ajoutant que « le fait qu’un tel accord est formalisé dans un seul document commun ou dans deux ou plusieurs instruments écrits connexes est dépourvu de pertinence ».

Il résulte donc clairement de ces arrêts que la forme n’importe pas. Ce n’est pas parce que le choix d’une déclaration, ou d’un communiqué de presse, a été fait qu’il ne peut s’agir d’un accord international. Au contraire, il faut analyser le but et le contenu de cette déclaration pour déterminer si elle contient des engagements ayant force obligatoire.

Et, en passant à l’analyse de la déclaration UE-Turquie, une lecture même rapide permet de relever que l’UE et la Turquie « sont convenues » d’un certain nombre d’actions pour atteindre un objectif commun. Au nombre de ces actions:

  • il est d’abord prévu que « tous les nouveaux migrants en situation irrégulière qui partent de la Turquie pour gagner les îles grecques à partir du 20 mars 2016 seront renvoyés en Turquie », étant entendu que tous les « coûts des opérations de retour des migrants en situation irrégulière seront pris en charge par l’UE » ;
  • ensuite, « pour chaque Syrien renvoyé en Turquie au départ des îles grecques, un autre Syrien sera réinstallé de la Turquie vers l’UE », un mécanisme devant, à cette fin, être « mis en place, avec le soutien de la Commission, des agences de l’UE et d’autres États membres » ;
  • de plus, la Turquie « prendra toutes les mesures nécessaires pour éviter que de nouvelles routes de migration irrégulière, maritimes ou terrestres, ne s’ouvrent au départ de son territoire en direction de l’UE »  et l’UE « accélèrera (…) le versement du montant de trois milliards d’euros initialement alloué au titre de la facilité en faveur des réfugiés en Turquie ».
  • Finalement la déclaration affirme que tous « ces éléments progresseront en parallèle et feront l’objet d’un suivi mensuel mené conjointement ».
  • A titre accessoire, on mentionnera que le considérant 4 de la proposition de décision modifiant la décision du Conseil du 22 septembre 2015 instituant des mesures provisoires en matière de protection internationale au profit de l’Italie et de la Grèce, déposée par la Commission le 21 mars 2016, indique que « les chefs d’État ou de gouvernement sont convenus, le 7 mars, d’une série de principes devant constituer la base d’un accord avec la Turquie … », que la proposition entend partiellement mettre en œuvre. Nous noterons que c’est la Commission elle-même qui a souligné ces termes dans la présentation de sa proposition.

L’ensemble de ces éléments est de nature à indiquer que la déclaration ne contient pas simplement un certain nombre d’actions que les parties entendent appliquer sur une base volontaire mais bien des engagements à caractère obligatoire. On peut donc conclure que cette déclaration constitue bien en réalité un accord international.

Conséquences en droit européen

La conséquence en est que cette déclaration relève de l’article 218 TFUE. En effet, ainsi que l’a indiqué expressément la Cour dans son arrêt du 26 novembre 2014 (point 83), cet article « régit la négociation et la conclusion des accords entre l’Union et des pays tiers », étant entendu que le terme « accord » utilisé à cet article « doit être compris dans un sens général, pour désigner tout engagement pris par des sujets de droit international et ayant une force obligatoire, quelle qu’en soit la qualification formelle ».

En outre, comme l’a souligné la Cour de justice dans un arrêt du 16 juillet 2015C-425/13, Commission c. Conseil (point 62), cette disposition « constitue une norme autonome et générale de portée constitutionnelle, en ce qu’elle attribue aux institutions de l’Union des compétences déterminées », en « visant à établir un équilibre entre ces dernières ».

Que prévoit cette disposition? (voy. à ce sujet, M. Dony,   Droit de l’Union européenne, points 358 à 368). Il résulte de l’article 218, paragraphe 6, TFUE, que c’est le Conseil, sur proposition du négociateur (qui est normalement la Commission), qui adopte, en principe à la majorité qualifiée, une décision portant conclusion de l’accord, et ce après approbation du Parlement européen, lorsque cet accord couvre un domaine auxquels s’applique la procédure législative ordinaire, ce qui est le cas pour la politique d’asile (article 78, paragraphe 2, TFUE) et d’immigration (article 79, paragraphe 2, TFUE).

Il est patent qu’en l’espèce, cette procédure n’a absolument pas été respectée : en effet, il n’y a pas trace d’une quelconque proposition de la Commission ; la « déclaration UE-Turquie » a fait l’objet d’un communiqué du Conseil européen et non d’une décision du Conseil et enfin, last but not least, le Parlement européen, non seulement n’a pas approuvé l’accord, mais n’a tout simplement pas été impliqué du tout. Il est même permis de penser que le terme « déclaration » a été consciemment choisi pour notamment éluder l’application de la procédure de l’article 218 TFUE.

En vertu d’une jurisprudence constante, le non-respect de la procédure de l’article 218 TFUE est de nature à affecter la légalité de la décision de conclusion d’un accord. C’est ainsi que la Cour, dans son arrêt précité du 26 novembre 2014, a annulé la décision adoptant la déclaration en cause au motif que le Parlement avait été simplement consulté et n’avait pas donné son approbation à l’accord. De même, dans un arrêt du 9 août 1994, C-327/91, Conseil c. Commission, la Cour a annulé l’acte par lequel la Commission avait entendu conclure un accord avec les Etats-Unis concernant l’application de leur droit de la concurrence, après avoir jugé que l’accord aurait dû être conclu par le Conseil, qui seul détient la compétence de conclusion des accords internationaux.

Cela étant, deux difficultés se présentent dans le cadre du droit de l’Union européenne:

D’abord, la question se pose de savoir comment il est possible de contester la validité du communiqué de presse contenant la « déclaration UE-Turquie », qui doit être considérée comme « la décision de conclusion » de cet accord.

La voie à laquelle chacun pense spontanément est l’action en annulation prévue par l’article 263 TFUE. La forme qu’a prise cette « décision » n’est pas un obstacle, car il est de jurisprudence constante que « recours en annulation doit être ouvert à l’égard de toutes les dispositions prises par les institutions de l’Union, indépendamment de leur nature ou de leur forme, à condition qu’elles visent à produire des effets de droit », comme l’a rappelé la Cour de justice dans son arrêt précité du 16 juillet 2015 (point 26).

Ce recours est ouvert sans conditions aux Etats membres, au Parlement européen, au Conseil ou à la Commission. En revanche, les personnes physiques ou morales doivent quant à elle établir que l’acte dont elles demandent l’annulation les concerne « directement et individuellement » et il paraît très difficile voire téméraire de soutenir que tel pourrait être le cas d’un tel acte. Elles devraient donc s’en remettre à une action introduite par un des requérants dits privilégiés, ou plus précisément au Parlement européen ou un Etat membre.

Une voie plus indirecte, et plus incertaine, pourrait être envisagée, qui consisterait, en application de l’article 267 TFUE, à saisir une juridiction nationale et de lui demander de poser à la Cour de justice une question préjudicielle en appréciation de validité de cette « décision ».

Ensuite, il résulte d’une jurisprudence constante que la Cour de justice peut seulement annuler ou invalider la décision de conclusion d’un accord international mais non l’accord lui-même. Ainsi, dans l’arrêt précité du 9 août 1994, la Cour a interprété le recours en annulation de l’accord introduit par la France comme étant dirigé contre l’acte par lequel la Commission a entendu conclure cet accord. La question de la conséquence d’une telle annulation sur la validité de l’accord international doit être abordée au seul regard du droit international public, vers lequel il importe donc de se tourner.

Conséquences en droit international

A cet égard, en droit international public, la notion de traité est entendue assez largement, comme en témoigne cette définition codifiant le droit coutumier reprise dans la Convention de Vienne de 1986 sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales : « […] l’expression ‘traité’ s’entend d’un accord international régi par le droit international et conclu par écrit […] que cet accord soit consigné dans un instrument unique ou dans deux ou plusieurs instruments connexes, et quelle que soit sa dénomination particulière » (voy. les commentaires de cet article et des autres dispositions pertinentes des conventions de Vienne sur le droit des traités dans O. Corten et P. Klein (dir.), Les Conventions de Vienne sur le droit des traités. Commentaire article par article).

La dénomination, ou plus généralement la forme de l’accord, n’importe donc pas. Ont ainsi été considérés comme des traités entre Etats (mais on peut sans aucun doute transposer ces enseignements aux traités entre Etats et organisations internationales) : un échange de lettres (C.I.J., Affaire du Différend territorial (Libye/Tchad), Recueil 1994, not., § 31) , un simple procès-verbal de réunion (C.I.J., Affaire de la Délimitation maritime et des questions territoriales entre le Qatar et Bahreïn, Recueil 1994, § 23.), un communiqué conjoint (C.I.J., Affaire du Plateau continental de la Mer Egée, Recueil 1978, §§ 95-98) ou encore … une déclaration commune (C.I.J., Affaire de la Frontière terrestre et maritime entre le Cameroun et le Nigéria, Recueil 2002, § 263). Le caractère informel de la « déclaration UE-Turquie » ne constitue donc aucunement un obstacle à sa qualification de traité. Le droit international et le droit européen se rejoignent sur ce point.

La seule condition potentiellement problématique en l’espèce est celle selon laquelle l’accord doit être « régi par le droit international », ce qui suppose une volonté des parties de produire des engagements juridiques relevant du droit international public. Ici aussi, les critères du droit international sont très similaires à ceux dégagés par la Cour de justice qui d’ailleurs s’y réfère explicitement.

En l’espèce, et comme indiqué ci-dessus (point 4), la « déclaration UE-Turquie » a pour objet la circulation des personnes et le statut de réfugié, un domaine qui relève indéniablement de l’ordre juridique international. La terminologie utilisée témoigne d’ailleurs d’une volonté de s’engager, comme en témoignent les extraits suivants : « l’UE et la Turquie ont décidé ce jour de … »,  « sontconvenues des points d’action complémentaires suivants… »… « La Turquieprendra toutes les mesures nécessaires pour éviter que… » ; … « un programme d’admission humanitaire volontaire sera activé. Les États membres de l’UE ycontribueront… ». Les termes ainsi soulignés ont une portée qui, loin d’être simplement exhortative ou indicative, est normative et prescriptive. De manière tout à fait explicite, les parties précisent encore que : « Cela se fera en totale conformité avec le droit de l’UE et le droit international » ou encore « conformément aux normes internationales applicables ».

Bref, au vu des termes mêmes de cette déclaration, il paraît difficile de lui dénier la qualité de « traité », au sens du droit international public. Cela étant, le non-respect des procédures internes de l’UE lors de la conclusion de ce traité pourrait avoir des conséquences non sur l’existence, mais sur la validité de ce dernier. Le droit coutumier en la matière est exprimé dans deux dispositions de la Convention précitée de Vienne de 1986 :

« Article 27 […]

2. Une organisation internationale partie à un traité ne peut invoquer les règles de l’organisation comme justifiant la non-exécution du traité.

3. Les règles énoncées dans les paragraphes précédents sont sans préjudice de l’article 46 ».

« Article 46 […]

2. Le fait que le consentement d’une organisation internationale à être liée par un traité a été exprimé en violation des règles de l’organisation concernant la compétence pour conclure des traités ne peut être invoqué par cette organisation comme viciant son consentement, à moins que cette violation n’ait été manifeste et ne concerne une règle d’importance fondamentale.

3. Une violation est manifeste si elle est objectivement évidente pour tout Etat ou toute organisation internationale se comportant en la matière conformément à la pratique habituelle des Etats et, le cas échéant, des organisations internationales et de bonne foi ».

Il en découle que, si, en principe, l’UE ne pourrait se prévaloir de la violation de ses propres règles pour justifier la non-exécution du traité, une exception est cependant réservée aux cas de violation « manifeste » concernant une règle d’une « importance fondamentale ».

Pour ce qui est de la deuxième condition,  l’accord a été conclu  en violation totale du prescrit de l’article 218 TFUE (point 7). Or cette disposition doit indéniablement être considérée comme une règle d’une importance fondamentale. La Cour internationale de justice a ainsi indiqué que  « les règles relatives au pouvoir de signer des traités au nom d’un Etat sont des règles constitutionnelles d’une importance fondamentale » (Affaire de la Frontière terrestre et maritime entre le Cameroun et le Nigéria, précitée, § 265) et cette affirmation peut assurément être transposée au droit d’une organisation internationale comme l’UE, d’autant que, comme déjà indiqué, la Cour de justice de l’Union européenne lui a expressément accordé ce statut. On peut d’ailleurs penser que c’est ce qui explique que le Conseil européen ait préféré dénier la qualité d’accord à la déclaration commune avec la Turquie : par le biais de cette qualification, sans doute espérait-il échapper à l’obligation de respecter l’article 218 TFUE…

Peut-on également considérer que cette violation était « manifeste » et donc « objectivement évidente » pour la Turquie ? Dans l’affaire que l’on vient de citer, la Cour internationale de justice est restée très prudente sur cette question, puisqu’elle estime que la connaissance par un Etat d’une règle constitutionnelle de droit interne d’un autre Etat suppose que ce dernier l’ait « rendu[e] publique de manière appropriée ».

Dans notre cas, on n’est cependant pas devant une règle de droit interne, mais devant des règles conventionnelles qui sont par définition publiques, les traités européens faisant l’objet de diverses publications, écrites et électroniques. Plus précisément, il est difficile d’imaginer que la Turquie, candidate à l’adhésion et engagée dans des négociations à cet effet depuis des années, n’ait pas connaissance des principes régissant la conclusion des accords internationaux de l’Union et en particulier des principes selon lesquels le Parlement européen doit être impliqué dans la procédure de conclusion de ces accords et que le Conseil européen n’est  en revanche pas habilité à y intervenir.

En conclusion

Dans ces conditions, et toujours si l’on s’en tient au droit international public, il apparaît que la « déclaration UE-Turquie » peut a priori être qualifiée de traité, mais un traité dont il est sérieusement permis de douter de la validité. Rien ne devrait dès lors sérieusement empêcher de remettre en cause les effets juridiques de cette déclaration, que ce soit en droit européen ou en droit international public.

The Orbanisation of EU asylum law: the latest EU asylum proposals

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 

by Steve Peers

There have been a number of EU proposals to deal with the perceived ‘refugee crisis’ in Europe over the last year. The latest batch, issued this week, are perhaps the most significant to date. They concern three related issues: visas (notably a short-term Schengen visa waiver for Turkish nationals); Schengen (partly suspending the open borders rules for six months); and asylum (changing the Dublin system on responsibility for asylum seekers, and creating a new EU asylum agency). Further proposals on legal migration and other EU asylum laws are coming in the months ahead.

Essentially, these proposals amount to the ‘Orbanisation’ of EU asylum law. They copy and entrench across the EU the key elements of the Hungarian government’s policy, which was initially criticized: refusing essentially all asylum-seekers at the external border and treating them as harshly as possible so as to maintain the Schengen open borders system.

Background

The surge in the number of refugees and migrants coming into the EU since 2014 led initially to a discordant response from Member States, with Germany and Sweden initially welcoming the arrivals and Hungary trying to stop them. Last September, in a bid to modestly assist the ‘frontline’ border states of Greece and Italy with the large numbers of asylum-seekers, the EU adopted two Decisions on ‘relocation’ (discussed here), in principle taking up to 160,000 asylum-seekers off those countries’ hands and distributing them among other Member States. However, this ‘Plan A’ was ineffective, as some Member States refused to cooperate (even launching legal action) and the remainder relocated very few people.

So ‘Plan B’ was developed: an EU/Turkey deal whereby Turkey either prevented the large number of refugees on its territory from leaving, or readmitted them back from the EU if they did reach EU territory (which in practice usually means the Greek islands). To implement this, Greece agreed to treat Turkey as a ‘safe third country’ or a ‘first country of asylum’ under EU asylum law, with the result that claims were treated as inadmissible. As discussed earlier on this blog, this is a highly dubious interpretation of the law. To induce Turkey to cooperate, the EU agreed to spend money on the welfare of Syrian refugees in Turkey, and to drop the short-term visa requirement for Turkish citizens to visit the EU countries in the Schengen system. (It also agreed to open one more ‘negotiating chapter’ relating to Turkish accession to the EU, but this is a trivial concession: only one of these 35 chapters has been agreed to date, in 11 years of accession negotiations).

In the meantime, many Member States became concerned about the numbers of migrants and refugees reaching their territories, and so resumed checks on the previously open borders between Schengen states. However, under the relevant Schengen rules dating from 2013 (on which, see my thinktank report on the Schengen system here), the authority to do this will soon expire, unless the EU as a whole agrees to suspend the Schengen system for one or more periods of six months. This prospect has been mooted since December 2015 (as discussed in detail here).

So this week’s proposals aim to implement and entrench these policy developments: waiving the visa requirement for Turkey; allowing a limited suspension of Schengen; and amending the Dublin system to reflect the EU/Turkey agreement, to deter asylum-seekers from moving between Member States (allowing Schengen to be fully reinstated) and to incorporate a new version of the failing relocation rules.  All of these measures are related, but I will examine each of them in turn.

Visas

There are three separate proposals to amend the EU visa list. All of them need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  The proposals, if adopted, would not apply to the UK and Ireland, which have their own laws on visa requirements (or waivers) for non-EU countries, due to an opt-out from the EU’s visa laws. That opt-out forms part of those countries’ overall opt-out from the Schengen system, which allows the UK to check people at its borders and refuse entry to non-EU citizens based (mostly) on UK law. It is therefore dishonest to suggest that the proposals would lead to an increased migrant influx into the UK. Indeed the UK’s withdrawal from the EU would not change the rules at all as regards non-EU citizens seeking to enter the UK from (the rest of) the EU – other than the small minority who apply for asylum or who are family members of EU citizens.

These proposals would, in turn: a) waive visa requirements for Turkish citizens; b) waive visa requirements for Kosovo; and c) make it easier to reimpose visa requirements in the event of immigration control issues. It should be noted that the Commission also recently proposed to waive visa requirements for Ukraine and Georgia; those proposals are still under discussion. All these proposals would, if adopted, amend the EU’s main law on visa lists, which dates initially from 2001. That law has been amended many times since, without any official codification of those amendments, but I have codified it unofficially here. Note that the visa waiver would apply to Turkish citizens, not to Turkish residents like the refugees from other countries living there.

The visa waiver for Kosovo is not linked to the overall refugee crisis, but rather to the policy of strengthening relations with EU neighbours, in part as an incentive for them to settle their own disputes. The Commission report on Kosovo fulfilling the requirements for visa waivers refers in particular to a recent border agreement between Kosovo and Montenegro. It also refers to meeting the requirements as regards readmission, reintegration, document security and organised crime.

As for Turkey, there is obviously a direct link with the EU/Turkey refugee deal. A fast-track visa waiver was promised to Turkey as part of that deal. But it is still subject to Turkey meeting the EU’s conditions. According to the Commission’s report, Turkey meets all but 7 of 72 requirements: the exceptions relate to issues like readmission, corruption, terrorism and document security, and the Commission believes that they will be fulfilled by the time the visa waiver is granted. In any event, the document security point is addressed by limiting the visa waiver to those with biometric passports.

A longer staff working document elaborates on this assessment, but it is not convincing on several points. As regards asylum issues, it states that the obligation to lift the geographical limitation on the Geneva Refugee Convention (which means that Turkey only fully recognises Europeans as refugees) is met by Turkey because that country treats non-Europeans just as well as if they are refugees. But it skips over the lack of work permits for refugees who are not Syrians. It also concludes that Turkey does not refoule refugees to dangerous countries (as alleged by NGOs) simply by accepting Turkey’s word to the contrary. The Commission also waives the obligation for Turkey to ratify Protocol 7 to the European Convention on Human Rights, on the grounds that its national law offers equivalent protection. But if so, why be afraid of the supervision of the European Court of Human Rights on these issues? And it is only clear reading the staff working document that the (unresolved) concerns about ‘terrorism’ laws are actually concerns about misuse of terrorism law to crack down on freedom of expression. The main report does not even flag this as one of the most significant concerns. And the existence of these concerns gives the lie to the Commission’s argument (in an earlier proposal, still under discussion) that human rights in Turkey are so well protected as to classify Turkey as a ‘safe country of origin’ for asylum purposes.

The proposal to reimpose visa requirements more easily is implicitly linked to the Turkish visa waiver proposal, although in fact it could apply to any State on the visa waiver list (the ‘white list’). The current rules, dating from 2013, allow ‘emergency’ reimposition of a visa requirement by the EU Commission for a six-month period, renewable for another six months if the Commission proposes to amend the law to make this permanent. This temporary Commission decision can be blocked by Member States, but does not need the approval of the European Parliament. The grounds for it are ‘sudden and substantial’ increases in irregular migration, rejected asylum applications or rejected readmission applications from the country concerned.

There are some further details of these rules in the preamble to the 2013 law.  A ‘substantial’ increase is an increase above 50%, and a low rate of recognition of asylum applications constitutes 3% or 4%, although in either the Commission could choose to use a different number.  Reimposition of visas is not automatic: there is a diplomatic phase during which the Commission talks to the officials of the other country and warns them to take action in light of the impending threat.  The Commission will only propose reimposition if it is not satisfied with the outcome of these talks. So far it has not done so.

Basically the new proposal would make it easier to reimpose visas in several ways.

First of all, it would no longer be an ‘emergency’ or ‘last resort’ decision, and the increases in irregular migration, rejected asylum applications or rejected readmission applications would no longer have to be ‘sudden’.

Secondly, the reference period for examining the increased irregular migration, etc would no longer be over six months, but over two months.

Third, the increase in asylum applications would no longer have to lead to ‘specific pressure’ on asylum systems; so there would need not be a large absolute number of asylum applicants from the country concerned, just a large relative increase in the number of applications.

Fourth, the rejected readmission applications would relate not only to citizens of the country concerned, but also to citizens of other countries who transited through that State’s territory. This is obviously aimed at enforcing the key feature of the EU/Turkey plan: the readmission of refugees to Turkey.

Fifth, the possibility of triggering reimposition of visas as compared to the period before the visa requirement was dropped would now apply indefinitely, and would no longer expire after seven years. The immediate impact of this change would be on Western Balkans countries, where (apart from Kosovo) the EU waived visa requirements in 2009 and 2010.

Sixth, the Commission can trigger the clause, not just Member States. It could act on the same grounds plus an additional ground of failure to apply a readmission deal with the EU as a whole.

Again, the final point aims at enforcing the EU/Turkey refugee deal. If Turkey does stop readmitting refugees, the EU can swiftly react by reimposing visa requirements. This works both ways, of course: if the EU threatens to reimpose visas on Turkish citizens on some other ground, such as an increase in Turkish citizens overstaying without authorization, then Turkey will likely refuse to take back refugees. Indeed, as discussed above, Turkey is threatening to do this if the EU does not waive the visa requirements in the first place – which accounts for the EU’s haste on this point.

Finally, a side issue (relating only to Turkey) is worth discussing. The EU/Turkey association agreement has a Protocol, signed in 1970, that sets a standstill on the free movement of services and freedom of establishment. That means the EU and its Member States can’t make the rules on these issues stricter than they were when the Protocol was signed. The CJEU has also ruled that if the rules are made more liberal than when the Protocol was signed, they can’t be made less liberal after that point without violating the standstill (Toprak and Oguz). While the standstill rule doesn’t apply to tourist visas (Demirkan), it does apply to visas for short-term economic activity (Soysal).

So would the standstill rule in the association agreement prevent the EU from reimposing visas for economic activity by Turkish citizens? In its case law (see most recently Genc, discussed here), the CJEU has said that the standstill rule can be overridden on public interest grounds. So far the case law on this point has concerned integration of family members, although it could also be argued that the objective of preventing irregular migration is also a valid ground to override the standstill. In fact, the CJEU has been asked whether migration control objectives can override it, in the pending case of Tekdemir. However, this case won’t be decided until well after June (when Turkey wants the visa waiver in place); and like the earlier cases, it concerns legal migration.

Schengen

The idea of suspending Schengen for up to two years was originally mooted back in December – as I discussed in detail at the time. The mechanics of the process, as I detailed there, have been grinding away for some time. Now we have nearly reached the final stage: a Commission Recommendation for a Council Recommendation to suspend Schengen. Once the Council adopts this (by a qualified majority of Schengen states), the suspension can go ahead.

However, the Commission has tried to limit this suspension in time and in space. It would only apply to Germany, Austria, Sweden, Denmark and Norway (where the unilateral authority to suspend border controls is about to expire), and only for an initial period of six months. The Commission argues that the tightening of EU immigration and asylum law should have had sufficient effect by then, so a further suspension would not be justified. Time will tell if this is true: the Schengen rules allow for three six-month extensions of the initial suspension.

For legal reasons, as I discussed in the earlier blog post, the suspension has to be based on blaming a Member State for insufficient control of its external borders. Obviously, the Commission has named Greece. But it has warm words for Greece’s efforts in the last few months, and flights to and from Greece to the Schengen zone will not be affected. This rather measured and proportionate approach contrasts with the Commission’s asylum proposals – to which we now turn.

Asylum

Again, there are three separate proposals, all of which need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  First of all, the current Dublin III Regulation, which sets out rules determining which Member State is responsible for an asylum application, would be replaced by a new Regulation – which I will call ‘Dublin IV’. Secondly, the current Eurodac Regulation, which supplements the Dublin Regulation by providing for the storage and comparison fingerprints of asylum-seekers and those who crossed the border irregularly, will also be replaced by a new Eurodac Regulation. Thirdly, thecurrent law establishing an EU agency known as EASO (the European Asylum Support Office), would be replaced by a new law creating an EU Agency for Asylum (the ‘EU Asylum Agency’).

This is just one batch of proposals: as the previous Commission communication from April (discussed here) set out, it will also soon propose new laws to amend the existing laws on qualification (definition) of refugees and people needing subsidiary protection status, asylum procedures, and reception conditions for asylum-seekers. In effect, this will amount to a third phase of the Common European Asylum System.

Currently, the UK and Ireland have opted in to the EU laws regarding Dublin, Eurodac and EASO. They opted out of the second-phase asylum Directives, but are covered by the first-phase Directives (except Ireland never opted in to the first-phase reception conditions Directive). Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) participate in these laws on the basis of treaties with the EU. It would be up to the UK and Ireland to decide whether to participate in the new proposals; if not, the current Regulations continue to apply. If they opt out of the discussions on the proposals, they could still opt in later after adoption of the legislation, if they find that the final result is more to their liking than they had feared at the outset. Denmark and the Schengen associates could refuse to participate, but in that case their treaties with the EU will automatically terminate.

In the event of Brexit, the UK would no longer be subject to any of the EU asylum laws it is now participating in, unless the EU and the UK negotiate an agreement to that effect. It should be noted that the EU has in practice only ever been willing to extend the Dublin rules to non-EU States if those States are also Schengen associates. (Indeed in some cases, the Dublin and Schengen association treaties have been negotiated as a package).

The EU Asylum Agency

I will start with the least contentious of the new proposals.

Currently, EASO has a number of practical cooperation tasks. In particular, it must: ‘organise, promote and coordinate’ the exchange of information and identify and pool good practice, as well as activities relating to country-of-origin information (ie, information about conditions in asylum seekers’ countries of origin), including gathering and analysis of that information and drafting reports on that information; assist with the voluntary transfer of persons granted international protection status within the EU; support training for national administrations and courts, including the development of an EU asylum curriculum; and coordinate and exchange information on the operation of EU external asylum measures. For Member States under ‘particular pressure’, the Office must gather information concerning possible emergency measures, set up an early warning system to alert Member States to mass influxes of asylum seekers, help such Member States to analyse asylum applications and establish reception conditions, and set up ‘asylum teams’.

For its contribution to the implementation of the Common European Asylum System, the Office gathers information on national authorities’ application of EU asylum law, as well as national legislation and case law on asylum issues. It also draws up an annual report on the situation regarding asylum in the EU. At the request of the Commission, the Office may draw up ‘technical documents on the implementation of the asylum instruments of the Union, including guidelines and operating manuals.’ The Office can also deploy ‘asylum support teams’ on the territory of a requesting Member State, in order to provide ‘in particular expertise in relation to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases’.

How would the EU Asylum Agency be different? As with the parallel proposal for a European Border Guard (discussed here), the Agency would not replace national administrations, but play a bigger role coordinating them.  The main changes are: an obligation to exchange information with the Agency; a stronger role in analysis of the situation of countries of origin, including advice on alleged ‘safe countries of origin’; the development of guidance on applying EU asylum law; monitoring of the Common European Asylum System, including the capacity of Member States to apply it; and increased operational and technical assistance for Member States. An indication of the bigger role for the Agency as compared to EASO will be the planned increase in staff – from about 150 to around 500.

Eurodac

The current Regulation requires Member States to take the fingerprints of all asylum-seekers and irregular border crossers over 14 years old. This information is then stored in the Eurodac computer system. Every asylum-seeker’s fingerprints are compared with those already in the system, to see if he or she has either applied for asylum already or crossed the border irregularly. This is taken as evidence as regards which Member State is responsible for the asylum application under the Dublin rules.

Eurodac can also be used for other purposes. In 2013, the Eurodac law was revised to give police forces and the EU police agency, Europol, limited access to the fingerprint data for the purposes of criminal investigations. Member States may choose to check the fingerprints of an irregular migrant against the system, for the purposes of identification, without storing that data.

The proposed new Regulation would make some key changes to these rules. First of all, it would significantly enlarge the amount of personal data that will be taken and stored. Member States will have to take information on children from the age of six (rather than fourteen), and facial images as well as fingerprints. Eurodac will also now store data on the names, nationalities, place and date of birth, travel document information. For asylum-seekers, it will store the EU asylum application number (see the Dublin IV proposal), as well as information on the allocated Member State under the Dublin rules, for the first time. For irregular border crossers and irregular migrants, it will store the date of the removal from the territory.

There will no longer be an option merely to check data on irregular migrants; rather Member States will be obliged to take and store this information. While the rules on police and Europol access to Eurodac data will not be changed as such (although the Commission will review those rules soon), there will be more personal data for them to access: they will be able to get facial image information, and more individuals will have their personal data recorded in Eurodac in the first place.

Secondly, it will be possible for fingerprint data to be taken not only by national officials, but also (as regards asylum-seekers and irregular border crossers) by the new EU Border Guard and EU Asylum agencies. Thirdly, while asylum-seekers’ data will still be retained for ten years, data on irregular border crossers will now be retained for five years – up from 18 months at present. Data on irregular migrants will also be retained for five years. The data will be marked if a Member State gives a residence permit to an irregular migrant. Finally, Eurodac data will now be made available to third countries for the purposes of return, on certain conditions, including a refusal to disclose if the person who has applied for asylum. But the non-EU country might guess that the person has applied for asylum; in fact the EU’s procedures Directive requires that country to be informed of this in some cases.

The Commission justifies these changes by the need to strengthen the EU’s return policy as regards irregular migrants, and to keep track of them if they make movements across the EU. It believes that taking fingerprints and photos of young children is justified for child protection reasons. Collecting personal data on facial images is justified because some persons refuse to have their fingerprints taken.

This proposal obviously raises huge data protection issues, and it will be important to see what concerns are raised by national data protection authorities, as well as the EU’s Data Protection Supervisor. The arguments about child safety should be independently assessed by child protection experts. It is conceivable that taking facial images would avoid the need to insist upon taking fingerprints coercively, but it’s not clear why the Commission believes that storing data on names, birthdates et al is justified. The use of Eurodac to underpin EU return policy obviates much need to use or expand the Schengen Information System (which currently contains data on non-EU citizens who are meant to be refused entry) for similar purposes, and raises the question of whether there need to be two different databases addressing the same issue. The choice between the two databases is particularly significant for the UK, since it will have access to the Eurodac returns data (if it opts in to the new proposal), but doesn’t have access to the immigration alerts in the Schengen Information System, and indeed can’t have access to those alerts unless (rather improbably) it fully joins Schengen. (However, the UK does have access to the criminal law alerts in the Schengen Information System, such as alerts on suspected terrorists: see my further discussion here. It could lose that access after Brexit, as I discuss here).

Dublin IV

As noted at the outset, the amendments to the Dublin Regulation essentially aim to entrench the EU/Turkey deal and to save Schengen by deterring secondary movements of asylum-seekers, while also making a fresh attempt to establish relocation rules. To accomplish each of these objectives, the Commission proposes an extreme solution which is probably legally and/or politically unfeasible.

Let’s examine each element in turn. In order to entrench the EU/Turkey deal (and possibly future heinous deals with countries like Libya), the proposal transforms a current rule which gives Member States an option to apply to state that a non-EU state is a ‘safe third country’ for an asylum applicant in accordance with the asylum procedures Directive, rather than send the applicant to another Member State or consider the application after a transfer from another Member State under the Dublin rules. The CJEU recently took a permissive view of this provision (Mirza). In place of this option, there would be an obligation to assess the inadmissibility of an application on ‘safe third country’ or ‘first country of asylum’ grounds before applying any of the rules on responsibility for applications. This confirms the current practice as regards asylum-seekers coming from Turkey to Greece, which aims to return as many of them as possible to Greece despite the dubious designation of Turkey as a ‘safe’ country for asylum-seekers.

This doesn’t matter much in cases where Greece would anyway be responsible for considering the application under the Dublin rules, because it was the first country where the applicants entered. (Moreover, due to recent closure of the Greece/Macedonia border and other controls and fences on internal and external Schengen borders, it’s now very difficult to leave Greece even for those asylum-seekers not in detention). But contrary to popular belief, that is not the only ground for assigning responsibility under the Dublin rules. There’s also an obligation to bring family members together, where one of the family members has status as a refugee or asylum-seeker or otherwise has legal residence in another Member State.

The Mirza judgment did not address whether these family rules take priority over the ‘safe third country’ option, but the Dublin IV proposal is clear.  If a case is inadmissible on the dubious ‘safe third country’ or ‘first country of asylum’ rules, then the Member State in question is responsible, regardless of the family or humanitarian clauses in the Regulation. It’s arguable that this is a breach of the right to family life set out in the EU Charter of Fundamental Rights. But it’s certain that this change completely undercuts the broadening of the definition of ‘family member’ contained in the Regulation – extending it to cover siblings and families formed after leaving the country of origin (while Syrians were living in Turkey, for instance). Those changes therefore amount to a legal ‘Potemkin village’ – a cynical façade intending to mislead a naive onlooker.

It might be argued that family members should not be encouraged to pay smugglers and take unsafe routes to reach their loved ones who are already in the EU. Fair enough – but in that case, the EU should take steps to ensure their safe passage (note that the EU’s family reunion Directive requires Member States to admit family members of refugees). There’s nothing in this week’s batch of proposals to do that. The EU’s informal arrangements with Turkey do provide for ‘nuclear family’ members as one category of Syrian refugees to resettle. But these arrangements are not binding and (at time of writing) not even officially published (see this entry in the Council register of documents). They only apply to the ‘nuclear’ family, and only for Syrians.

Next: the attempt to deter secondary movements of asylum-seekers, in order to reinstate the Schengen system. Most notably, there will be punishments for asylum-seekers who do not stay in the responsible Member State. In that case the asylum procedure will be accelerated, and they will lose all benefits (health, education, welfare and accommodation) except for emergency health care. (However, the grounds for detention of asylum-seekers in the Dublin Regulation will not change – though the future proposal to amend the reception conditions Directive might seek to amend the detention rules there instead.) This will overturn the CJEU ruling in CIMADE and GISTI, which was based on the right to dignity in the EU Charter. Let’s put it plainly: asylum-seekers who flout the Dublin rules will be left to starve in the streets – even children, torture victims and other vulnerable people. And fast-tracking their asylum application implicitly aims at refouling them to their country of origin, with only limited suspensive effect of any appeal to the courts.

The violations of the Charter don’t stop there. According to the CJEU case law on the current Regulation, unaccompanied minors can move to another Member State and apply there. This ruling (MA) is also based on the Charter (rights of the child), but the Commission wants to overturn that too – in the process trashing its own proposal dating from 2014. Again, any attempt to argue that this aims to protect children by deterring them from moving is undercut by the prioritisation of inadmissibility rules over family reunion rules (even for unaccompanied children), as well as the failure to insert rules to ensure that the Dublin family rules are actually applied (such as the recent UK ruling on a requirement for DNA tests). If the EU and its Member States care so much about asylum-seeking children, why have they detained so many in Greece in poor conditions, and shrugged as so many suffered in northern Greece – shirking the legal obligations which they accepted to relocate them?

Furthermore, the proposal limits both the substantive and procedural remedies for applicants. They will only be able to challenge a decision on the responsible Member State on the grounds that the asylum system has broken down, or that they should be with their family member. This overturns the opinion in the pending cases of Karim and Ghezelbash (although it is possible that the Court will not follow this opinion). Also, they will only have seven days to appeal: this risks a breach of the Charter right to an effective remedy, given that in the Diouf case the CJEU found that a 14-day time to appeal was acceptable.

The proposal doesn’t only aim to restrict asylum-seekers in order to ensure that Dublin works effectively; it will also restrict Member States to the same end. The essentially unlimited discretionary ‘sovereignty’ and ‘humanitarian’ clauses will be amended to severely limit the circumstances in which a Member State can examine an application that is not its responsibility. If Angela Merkel (improbably) wanted to repeat her open-door policy of summer 2015 in future, the proposal would make that illegal. Various deadlines for Member States to act would be speeded up (although Member States have said before that this is impractical). Conversely, other rules which limit Member States’ obligations will be dropped: there will be longer periods of responsibility after issuing a visa or residence permit, and responsibility for those who cross a border without authorisation, or who abscond or who leave the EU and then come back, will be endless.

This brings us to the relocation rules. These will be triggered once a Member State is responsible for more than 50% of the asylum applications which objective criteria (based on income and population) indicate that it ‘should’ be responsible for. In other words, if Greece ‘should’ be responsible for 50,00 asylum applications under those criteria, other Member States would be obliged to relocate asylum-seekers from Greece once it was responsible for 75,000 applications. But Member States can’t relocate asylum seekers whose applications are inadmissible under the new rules discussed above, so this may have little impact on Greece anyway. Indeed, if the EU/Turkey deal breaks down, the combination of these rules would in principle put Greece in a worse position than it is currently. A new emergency relocation Decision would have to derogate from the Dublin rules again.

Then the proposal becomes truly surreal. The Commission suggests that Member States may opt out of relocating asylum-seekers, but they will have to pay €250,000 per asylum-seeker if they wish to do this. This is a fantasy on top of a fantasy. Member States have already shown that they are unwilling to apply the relocation Decisions of last September, or to adopt the proposal to amend the Dublin rules to this end that was tabled at that time. The idea of financial contributions in place of accepting individuals, whatever its merits, is perceived to be a ‘fine’ and was already rejected by Member States last year. That idea will not suddenly appear more attractive to Member States by doubling down on it, and suggesting a contribution set at an obviously absurd and disproportionate level, which the Commission does not even try to justify.

So why did the Commission jump the shark here? Perhaps someone in the Commission lost a bet. Or perhaps this is a legislative homage to the Belgian surrealist tradition of Magritte, et al. More seriously, it might be intended as a negotiating position. But such a ridiculous position will just backfire: it’s as if management started the latest pay talks with the unions by arguing that the workers should start paying the company for the privilege of working there. Or perhaps it’s a subtle way of addressing Greece’s debt problems: rejecting the relocation of a mere 10,000 asylum-seekers from Greece would transfer €2.5 billion to the Greek treasury – where it would rest briefly on its route to Germany.

I have another theory, well known to followers of British politics. Maybe the €250,000/person proposal is the Commission’s equivalent of ‘throwing a dead cat on the table’. The phrase is borrowed – like the EU’s current asylum policy – from Australia. It means that if the political conversation is particularly damaging to a certain politician, an ally of that politician suddenly does or says something outrageous. Everyone will start talking about that outrageous thing, just as they would be talking about the unfortunate feline; which means that no-one is talking about the original issue any more.  In this case, it means that everyone is talking about the €250,000 – and no-one is talking about the suspension of Schengen, or of the families who would be split up, or the people who would be made hungry and homeless, by the Commission’s Dublin IV proposal.

Conclusion

The Commission’s proposals are not a done deal, of course. Some Member States and Members of the European Parliament have misgiving about a visa waiver for Turkey, on migration control or human rights grounds. MEPs fought for years for many of the provisions in the Dublin III Regulation (on family members and unaccompanied minors in particular) which the Commission now seeks to overturn. As I pointed out above, some of the proposed changes to the Dublin rules are highly vulnerable to challenge in the CJEU, if adopted. The red herring of a €250,000 sanction is already floating on the surface of the pond. And the whole EU/Turkey deal might anyway be overturned at the whim of Turkish President Erdogan – the only politician whose ego makes Donald Trump’s look small by comparison. Nevertheless, EU asylum policy is already becoming more Orbanised in practice, and I would expect at least some elements of the further Orbanisation proposed by the Commission to be adopted.

For over twenty-five years now, the EU and its Member States have been attempting to get the Dublin system to work. The continued abject failures of those attempts to get this pig to fly never seem to deter the next attempt to launch its aviation career.  With this week’s proposals, the Commission is in effect trying to get the poor beast airborne by sticking a rocket up its backside. It might be best to stand back.

Goodbye, cruel world: visas for holidays after Brexit?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (April 25, 2016)

by Steve Peers

Until yesterday, I have consistently argued that the prospect of British citizens being subject to visas for short-term visits to the EU after Brexit was highly remote. In fact, I even told off some ‘Remain’ supporters who suggested that this might happen. EU policy is consistently to waive short-term visa requirements for wealthy countries (like the USA, Canada and Japan) as long as those countries waived short-term visa requirements for all EU citizens in return. I couldn’t imagine that it was likely that anyone on the ‘Leave’ side would wish to advocate short-term visa requirements for EU citizens visiting the UK after Brexit, thus damaging the British tourist industry and leading to a reciprocal obligation for UK citizens to get visas for short visits to the EU.

Incredibly, I was wrong on this. Yesterday, Dominic Raab, a senior figure on the Leave side, suggested that the UK might want to introduce visas for EU citizens after Brexit, and accepted that UK citizens might be subject to visa requirements for visits to the remaining EU in turn. It can’t seriously now be suggested that it’s ‘scaremongering’ to consider that this might become UK policy after Brexit – unless there’s such a thing as ‘self-scaremongering’ by the Leave side.

Let’s be clear about this. The idea of short-term visa requirements after Brexit is utterly and profoundly stupid. It is by no means a necessary consequence of Brexit, and would cause the maximum possible damage to UK businesses and the ordinary lives of British citizens who seek to visit the EU after Brexit, with little or no security benefit in return.

Background: EU visa policy

As an EU Member State, the UK allows short-term entry to EU citizens without a visa, as well as longer-term free movement of people – although the latter issue is severable from short-term visas. The reverse is also true, of course: simplifying the leisure, family and business visits of millions of British citizens to the EU every year. While there is an earlier treaty from the Council of Europe (a body separate from the EU) which abolishes visa requirements between European states, the UK is not a party to that treaty – and presumably would not become one under Raab’s plans.

The EU has agreements on free movement of people with Norway, Iceland and Switzerland, but it seems clear from official statements by the Leave side that the UK would not sign up to these after Brexit. But as I said, short-term visa waivers are a severable issue: the EU does have reciprocal short-term visa waiver treaties with a number of non-EU countries, as well as a unilateral policy of waiving short-term visa requirements for other wealthy countries who reciprocate. Therefore, all it would take for British citizens to retain the visa waiver for short-term visits to the EU after Brexit would be a British government policy not to impose short-term visa requirements on EU citizens, or a UK/EU treaty to this effect. This seemed highly likely – until Raab’s rant.

The EU decides visa policy as a bloc, so there is no possibility that the UK could do separate deals on short-term visas with individual EU countries. As an exception, Ireland (like the UK at present) has an opt-out from the EU’s visa policy, so the UK and Ireland could retain their separate Common Travel Area arrangements – if they wished to. It’s not clear if Raab also wants to impose visa requirements for Irish nationals (which might also then be reciprocated). If that happens, then border controls would have to be reimposed between Northern Ireland and the Irish Republic, as some on the Leave side have already called for (though others have taken a different view).

EU visas: the legal framework

The EU (apart from Ireland) has a standard short-term visa policy, which entails issuing ‘Schengen visas’ valid for all the Schengen states.  So in legal terms we know what the impact would be of the EU imposing visas on British citizens. The basic rules are set out in the EU visa code, although a few EU countries (Romania, Bulgaria, Cyprus and Croatia) don’t apply that code yet as they are not yet fully part of Schengen. While the Schengen system currently has many well-known problems as regards border control, this has not affected Schengen visa policy, and there is no reason why it would do.

To get a Schengen visa, the visa code requires an application at a consulate, although in practice the applications are often made through a private service provider. Applications can be made up to three months before the date of travel, or six months for multiple-entry visas. Applicants need to provide fingerprints, except for children under twelve and some other limited exceptions. They must also provide documents supporting the reason for their travel, obtain medical insurance and pay a fee of €60 per applicant, along with an extra fee if the applicant uses a private service provider. The fee is reduced to €35 for children between six and twelve, and waived for younger children, as well as pupils and teachers on study trips, researchers and representatives of NGOs. It may be waived in a small number of other cases; but it is always payable for tourist or business trips.

Most applications for Schengen visas are accepted, but applications are scrutinised for subsistence and intention to return, so it may be more likely that unemployed or low-waged British citizens find their visa applications refused. Any rejections will be registered in the EU’s Visa Information System for five years, which may make it less likely for a future application to be accepted. Usually a visa is valid for a period of three months over the next six months, but it is possible to get a multiple-entry visa (valid for several trips over a five year period) if there is a proven need to travel frequently. Visas can’t usually be obtained at the border, so British citizens would have to apply for a visa at least several days in advance to be sure of being able to travel. Without a visa, they would be denied boarding planes, trains or ferries, due to the EU law on carrier sanctions.

Back in 2014, the Commission proposed amendments to the EU visa code. They would, for instance, simplify the rules on getting multiple-entry visas, and allow for earlier applications. But such visas would still not be standard. Recently, both the Council and the European Parliament adopted their positions on this proposal, and so it will likely be agreed later this year. I’ve blogged separately on the main changes that the Commission proposed, as well as the chance to add rules on humanitarian visas, and on the specific proposals affecting UK citizens’ non-EU family members. But if the new code ultimately applies to all British citizens, its impact will be obviously be much greater.

The EU has signed some treaties on visa facilitation with non-EU countries. These treaties don’t waive the visa requirement, but they reduce the application fee and simplify the process. Of course they are reciprocal – the UK would have to cut the fees and simplify the process for EU citizens applying for short-term visas to visit the UK too.

Practical consequences: the unbearable madness of visa requirements

There’s no doubt that visa requirements reduce travel for tourism, business and other purposes. There are detailed estimates of the scale of the economic impact in a reportdrawn up for the Commission before it proposed the revised visa code. Think of it at the individual level: if there’s no visa facilitation treaty, a British couple with two teenagers would have to pay an extra €240 for a family holiday in the EU in visa application fees, with fees often paid to service providers on top. Even with a visa facilitation treaty like the one with Ukraine, the family would pay €70 in fees (€35/adult, under-18s exempt from fees), and again possibly service providers.

Raab argues that all this is justified on security grounds. Is it? First of all, the vast majority of terrorist (or other) offences in the UK are committed by British citizens. But some foreign visitors do commit crimes. How best to screen them out? The basic problem is that imposing a visa requirement doesn’t, in itself, increase our capacity to determine if a particular individual is likely to pose a threat. It simply, in effect, moves the decision on entry in time (to a date before arrival) and space (away from the border to a consulate – although individuals will still be checked at the border to ensure that there is a visa in their passport). The best way of knowing if a particular individual is a threat is by checking the available data.

That information is easy to find if the visa applicant has previously committed a crime in the UK, because in that case there ought to be a criminal record accompanied by an entry ban. But in this scenario, the entry ban information should in principle not only be available to consulates considering a visa application, but also to border guards deciding on entry at the border. So the visa requirement adds nothing. Nor does it add anything as far as EU citizens are concerned: the EU citizens’ Directive allows the UK to impose an entry ban on EU citizens who have committed serious crimes; and the UK can (and does) refuse entry to EU citizens at the border.

What if the visa applicant has committed a crime in another country? Whether people have to apply for a visa or are checked at the border, there is no general access to other countries’ criminal records. However, the UK does have access to some relevant dataas an EU Member State. Last year, it gained access to the Schengen Information System, which includes information on wanted persons, including some terrorist suspects. From 2012, the EU system for exchange of information on criminal recordswas set up (known as ECRIS: the European Criminal Records Information System), and the EU Commission recently reported that it had greatly improved the flow of information on this issue. The ECRIS law provides for criminal records to be exchanged more easily as regards a country’s own citizens (so we now have more information on UK citizens who have committed crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t provide perfect security, of course. Not all terrorist suspects’ names appear in the Schengen Information System, for instance. The passenger name records law is likely to be challenged on human rights grounds, since it gathers information on all passengers, not just suspects. The criminal records law was unable to stop a tragic killing two years ago, because British police unfortunately did not ask another Member State about the killer’s criminal record (on the basis of a separate EU law) when they had the opportunity. As I suggested at the time, it would be desirable to provide for automatic circulation of the criminal records of EU citizens who have been convicted of very serious crimes, if they have been released from prison, so that they can be stopped and validly rejected from entry at the border.  The upcoming amendments to the Schengen Information System would be an opportunity to do this.

But how would Brexit, with or without a visa requirement, improve this situation? It would not give the UK any more access to EU databases, or to other Member States’ criminal records systems; indeed, it might mean less access. The EU has not extended ECRIS to any non-EU countries; the Schengen Information System has only been extended to those (like Norway and Switzerland) that are fully part of Schengen. The EU has some treaties on exchange of passenger name data with non-EU countries, but this policy is being challenged on data protection grounds in the EU court.

More broadly, the EU court has ruled in the Schrems case that personal data can only be transferred to non-EU countries that have data protection law ‘essentially equivalent’ to EU law. The UK would have to commit to continue applying a law very similar to EU law, or risk disruptions in the flow of personal data – affecting digital industries as well as exchange of data between law enforcement authorities. This restriction can’t easily be negotiated away, since the case law is based on the EU Charter of Fundamental Rights, which has the same legal effect as the Treaties. The UK’s compliance with the EU rules would almost certainly be challenged in practice: see by analogy the Davis and Watson case already pending before the EU court. Outside the EU, the effect of a ruling that the UK did not comply with the rules would be a potential disruption of the flows of personal data.

One final point. Let’s remind ourselves that the UK already allows nationals of over fiftynon-EU countries to visit for a short period without a visa. So obviously we have found a way to reconcile the possible security threat this might pose with the needs of the UK economy. Why should that be so difficult to do as regards EU countries after Brexit? The mere existence of that policy anyway creates a loophole: any EU citizen with the dual nationality of one of those non-EU states (or perhaps Ireland) would be able to visit the UK without a visa anyway. Or is the intention to require a visa for everyone?

Of course, this loophole would work the other way around too. As a dual citizen of the UK and Canada, I could still visit the EU visa-free on a Canadian passport. So could any other British people who are also citizens of a Member State, or a non-EU country on the EU visa whitelist. But many others (including my family, for instance) could not. Let’s conclude on the utter absurdity of this: a British citizen contemplating the use of a Canadian passport to visit the European Union. Is this really the vision of an open, liberal, global United Kingdom after Brexit that the Leave side want people to vote for on June 23rd?

(Legislative Alert) : The EU Directive on Passenger Name Record (PNR)

DIRECTIVE (EU) 2016/… OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of … 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 point (d) of Article 82(1) and point (a) of Article 87(2) 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 Committee[1],

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure[2],

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 proposal, which had not been adopted by the Council by that date, became obsolete. Continue reading

(Legislative Alert) : The Council “general approach” on the future EU Border Agency.

NOTA BENE : Following intense negotiations inside the working groups of the Council (see some preparatory works on Statewatch and soon on a WIKI-LEX page of this site) the Coreper has agreed Yesterday (April 7) on a mandate for negotiations with the European Parliament, as set out in the text below.
Even if the Treaty requires that debates and votes on legislative proposals should be public (also in the Council) in the case of the so called “early agreements” and “trilogues”   everything is still blurred. In this parallel world “informally” created by the co-legislators it is not clear the nature of the preparatory votes in the Council/Coreper  (qualified majority ? unanimity ?) , nor the role of the Commission, nor the impact on the original legislative proposal.
These legal procedural niceties taken apart (!?)  in the text of the mandate below the envisaged changes vis-à-vis the Commission proposal are highlighted in underline and strikethrough.  It should be noted that an additional legal basis, i.e. point (e) of Article 77(2) TFEU has been considered necessary,  in order to cover the provision of draft Article 18(8) which deals with issues related to controls at the internal borders.
Chapter I of the proposal (Article 2) deals with the definitions of the concepts used in it. Among them, the definitions of “external borders” and of “hotspot areas” should be highlighted.
Chapter II, Section 1 (Articles 6-7), concerns the name and the tasks of the new Agency. 

Chapter III, Sections 3-5 (Articles 50-78), deals with the cooperation between the future Agency and different stake holders (including with third countries), the general framework and organisation of the Agency and the financial requirements for its proper functioning.
Among the important issues tackled in these provisions, emphasis should be given in particular, on:
i) the envisaged facilitation of cooperation by the Agency with the Member States and the Commission in specific activities related to the Customs Area (Article 51);
ii) with regard to the cooperation with third countries, the Council has taken on board the view expressed by a number of delegations according to which the participation of Member States in joint operations on the territory of third countries shall be only on a voluntary basis. The joint operation in question shall be carried out on the basis of an operational plan agreed also by the Member State bordering the relevant operational area. In the same context, the compromise envisaged by the Council includes a provision on the Status Agreement that should be concluded by the EU and the third country for the deployment of the members of the teams in appropriate situations (Article 53);
iii) more functions have been added in the remit of the Management Board so as to meet with the role that is envisaged for it;
iv) the deletion of the provision on Supervisory Board, following a consistent request by many delegations (Article 69).
Finally, Chapter IV (Articles 79-82) covers the final provisions.

A detailed comment of this proposal which can be considered the first case of a quasi – federal Agency will follow.
EDC

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the European Border and Coast Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC Continue reading

(EP Study) The  proposal  for  a  European Border  and Coast  Guard: evolution  or  revolution  in  external border management?

THIS IS AN EXECUTIVE SUMMARY. (ACCESS TO THE FULL STUDY (40 pages) HERE)

by Dr. Jorrit Rijpma

The Commission proposal for a European Border and Coast Guard Authority brings together a reinforced (and renamed) Frontex – the European Border and Coast Guard Agency (EBCGA) – and the Member States’ border guard authorities under the umbrella of a European Border and Coast Guard (EBCG), making them jointly responsible for the management of the external borders. The proposal defines for the first time the notion of European integrated border management. It significantly broadens the scope of the new Agency to include internal security and measures within the area of free movement. The proposal reinforces both Frontex’s regulatory and operational role. In addition, it gives the  Agency  a  supervisory  role,  placing  it  in  charge  of  Vulnerability  Assessments.

As such, the EBCG proposal is an important next step in the progressive Europeanisation of external border management. That said, the proposal is not a revolutionary leap forwards, as it preserves the fundamental premise that the Agency neither has its own border guards nor powers of command and control over national border guards.

Still, a proposal of this complexity, with substantial financial implications and an obvious impact on fundamental rights, deserves careful consideration.

The proposal does not address some key questions as regards accountability for operational activities at the external borders and is rather likely to add to the current unclear division of responsibilities. There is, moreover, a danger of placing unrealistic expectations on the Agency.

It seems contradictory that Member States would be willing to accept more binding obligations under this proposal, while nothing prevents them from furnishing the Agency with the necessary tools now. Likewise, it would be naïve to think that greater powers and a new name for Frontex might suddenly remedy structural   flaws in  some Member  States’ external  border  management   systems.

Although the current crisis may have exposed shortcomings in Frontex’s current legal framework, the proposal does not constitute a genuine emergency measure designed to tackle a short-term problem. Therefore, if this proposal is to stand the test of time as the regulatory framework for external border management, it is important to carefully consider the  structural   implications of  the  rules currently being  considered for  adoption.

With this in mind, this analysis highlights some of the central challenges in the new EBCG framework  and provides  some  recommendations  on  how these  might  be addressed.

Supervisory  role

The Agency’s supervisory role also entails drawing up Vulnerability Assessments to identify operational  weaknesses  in   external  border  management.   In  this  regard, it is  important  to:

– Clarify   the   relationship   between   the   Schengen   Evaluation   Mechanism   and   the Vulnerability  Assessment  model.

– Ensure  that  the   Agency’s  supervisory  role  does not  prejudice  working  relations in the field of operational cooperation.

– Introduce a fundamental rights component into  the  Assessments.

Regulatory  role

Under the proposal, Member States would be obliged to provide the Agency with relevant information  for its  risk  analysis.

– A more specific explanation of what constitutes relevant information could help to  clarify the  extent of this obligation.

– If the Agency were to be given access to European databases, this would have to be under strict conditions, taking into account relevant data protection legislation.

Operational  role

Availability of human  and  technical  resources

The proposal aims to remedy the current lack of human and technical resources. As such, in emergency situations, Member States would be required to provide border guards, with no possibility, as is currently the case, to invoke an emergency situation requiring their deployment at home. Similar, yet weaker provisions have been included as regards the obligation to make available technical equipment.

The Agency will be allowed to acquire its own  equipment.

In addition, the Commission proposal provides for a right to intervene where a Member State does not follow up on the recommendations from the Vulnerability Assessment or in a situation where insufficient external border controls would put the overall functioning of the Schengen area at risk. This latter provision has, however, been amended in the Council text, which provides for a similar mechanism for reinstatement of the internal borders as under article 26 of the  Schengen  Borders  Code.

– The unqualified obligation to make border guards available for rapid border  interventions and the ‘right to intervene’ under the Commission’s proposal arguably contravene the Member States’ ultimate responsibility for internal security  under the Treaties (Article  4(2) TEU and  Article  72 TFEU).

Expansion  of tasks  and  powers  of  guest  officers

Guest officers’ powers may be considerably broadened by the host Member State, allowing these officers to act on its behalf. Guest officers would also have automatic access to European  databases. The proposal  should:

– Clearly state that guest officers act at all times within the scope of EU law and hence  within the  scope of the Charter of Fundamental Rights.

– Clearly state that, to the extent that national powers are delegated to guest officers, these officers should be considered to act as agents of the host Member State for the purpose of  determining  international responsibility.

 Hotspot  approach

The proposal gives the Agency a key role in the hotspot approach.

This is problematic as it seems to contradict the multi-agency purpose and nature of the hotspot approach, risking a one-sided focus on border control.

The Commission is thus much better placed to coordinate the activities  of  the Migration  Management  Support  Teams.

-The hotspot approach and its legal and operational framework require prior definition, preferably in a separate legal framework, before making the Agency responsible for its functioning.

– If the Agency were to take primary responsibility for the hotspots, a reference to international protection should be included in the concept of integrated border  management.

Return  cooperation

The Agency would gain significant operational powers in the area of return with three new on-call lists of Member State officials: forced return monitors, forced return experts and return specialists.

The proposal provides for three types of return operations: return from a combination of Member States organised and carried out by the Member States and coordinated by Frontex; collecting return operations where the means of transport and return escorts are made available by a third country; and mixed return operations, where a number  of returnees  are transported   from  one third  country  to  another.

There are a number of important concerns as regards the provisions on return that need to be  addressed.  It  is  important to:

– Detail the tasks, powers and responsibilities of these officials. Attention should be paid to the specific legal regime  applicable  on board aircrafts.

– Extend reporting obligations to return operations and include a role for the Agency’s Fundamental Rights  Officer.

– Allow for collecting return operations only if the third country concerned is a party to  the European Convention on Human Rights (ECHR).

– Allow for mixed return operations only if there are sufficient guarantees that the            third country’s            return  decision           and            procedures      comply            with     EU fundamental rights standards.

Information  exchange  and  data  protection

The proposal would transform the Agency into the central hub of information exchange of the EBCG, expanding its powers to collect and transmit data not only on people suspected of cross-border crime, but on irregular third country nationals.

This requires sufficient data protection rules. As pointed out by the European Data Protection Supervisor (EDPS), the proposal   has important  flaws  in  this regard  and  requires  clarification.

The proposal  should:

– Clearly distinguish between the different purposes for which data is processed, because migration management and criminal law enforcement are covered by separate legal regimes.

– Exhaustively   list  the purposes for  which  data  may be processed.

– Indicate not only the categories of people whose data may be processed, but also specify which data may be processed.

– Clearly distinguish between the transfer of data to third parties within and outside the European  Union.

Operational  cooperation with  third  countries

The proposal would allow for joint operation activity on the territory of third countries. Cooperation with third countries should not allow the Agency and EU Member States to lower  EU  standards.

As  such:

– Cooperation should be limited to third countries that are party to the ECHR and

the Geneva Convention and  its Additional  Protocol.

– The safeguard whereby liaison officers may only be posted to countries with human  rights-compliant  border practices should be reintroduced.

Coastguard

The provisions on the role of the Agency and the Member States in a European Coast Guard are the least developed part of the proposal and are largely limited to an obligation to exchange information. It is therefore important to clarify the extent to which this may involve  the  processing of  personal  data.  Furthermore, it  is important:

– To clarify the relationship between the military and the Agency in maritime border surveillance operations       and      any      other Member            State    military involvement in integrated  border management.

– To include Search and Rescue provisions to allow the Agency to play a more active SAR role  without affecting the international SAR framework.

Constitutional   considerations

It is submitted that, under the current rules on delegation of powers to Union bodies, it is not possible to delegate genuine executive powers to the EBCGA.

The Commission proposal respects these limits. Nonetheless, the removal of the ‘emergency situation’ exception for the deployment of human and technical resources, as well as the ‘right to intervene’, are at odds with the Treaty principle of ultimate responsibility of the Member States for their own internal  security. Moreover:

– Careful consideration should be given to which decisions are politically sensitive and should be reserved for the Management Board and which are more  technical and  operational  and  should be left to  the Executive Director.

Fundamental  rights considerations

The significant reinforcement of the tasks of the Agency without the transfer of genuine executive powers to the Agency (for the reasons set out above), as well as the explicit affirmation of a shared responsibility for European integrated border management, will only exacerbate  the existing conundrum as  regards shared  accountability.

While the introduction of an individual complaints mechanism is an important positive development, the Commission’s assertion that the mere existence of such a mechanism makes the Agency’s actions fundamental rights-compliant is clearly exaggerated.

Indeed, the  proposed  fundamental   rights mechanisms require  further  refinement:

– The complaints procedure provisions must lay down rules on format, content and deadlines or should empower the  Agency to   set such rules.

– The Executive Director’s obligation to suspend or terminate operations in the event of fundamental rights violations should be further detailed and should provide for a role for the FRO and take into account the results of relevant monitoring mechanisms.

– The obligation for the Agency to set up a fundamental rights monitoring mechanism – with a broad review of fundamental rights at the external border – should  be  reintroduced.

– The FRO’s obligation to report to the Consultative Forum should be reintroduced.

Continue to the FULL STUDY