(S. PEERS) BRINGING THE PANOPTICON HOME: THE UK JOINS THE SCHENGEN INFORMATION SYSTEM

ORIGINAL PUBLISHED ON EU LAW ANALYSIS blog

BY Steve Peers

Over two hundred years ago, British philosopher Jeremy Bentham devised the concept of the ‘Panopticon’: a prison designed so that a jailer could in principle watch any prisoner at any time. His theory was that the mere possibility of constant surveillance would induce good behaviour in prison inmates. In recent years, his idea for a panopticon has become a form of shorthand for describing developments of mass surveillance and social control.

The EU’s forays in this area began with the creation of the Schengen Information System (SIS) in the 1990s. The SIS is a well-known EU-wide database containing enormous amounts of information used by policing, immigration and criminal law authorities.

Until now, the UK has not had any access to the SIS. But this week, the EU Council finally approved the UK’s participation in the System, thereby linking the EU’s most iconic database with the intellectual home of the panopticon theory. What are the specific consequences and broader context of this decision?

Background

The main purpose of the Schengen system is to abolish internal border checks between EU Member States, as well as some associated non-EU States.  At the moment, the full Schengen rules apply to all EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia. Those rules also apply to four associates: Norway, Iceland, Switzerland and Liechtenstein.

All of the Member States are obliged ultimately to become part of the Schengen system, except for the UK and Ireland. Those two Member States negotiated an exemption in the form of a special Protocol at the time when the Schengen rules (which originated in theSchengen Convention, ie a treaty drawn up outside the EU legal order) were integrated into the EU legal system, as part of the Treaty of Amsterdam (in force 1999).

The UK and Ireland are not entirely excluded from the Schengen system. In fact, they negotiated the option to apply to join only some of the Schengen rules if they wished. Their application has to be approved by the Council, acting unanimously. The UK and Ireland essentially chose to opt in to the Schengen rules concerning policing and criminal law, including the SIS, but not the rules concerning the abolition of internal border controls and the harmonisation of rules on external borders and short-term visas.

The UK’s application to this end was approved in 2000 (see Decision here), and Ireland’s was approved in 2002 (see Decision here). But in order to apply each Decision in practice, a separate subsequent Council decision was necessary, because the Schengen system cannot be extended before extensive checks to see whether the new participant is capable of applying the rules in practice.  On that basis, most of the Schengen rules which apply to the UK have applied from the start of 2005 (see Decision, after later amendments, here). The exception is the rules on the SIS, which the UK was not then ready to apply. After spending considerable sums trying to link to the SIS, the UK gave up trying to do so, on the basis that the EU was anyway planning to replace the SIS with a second-generation system (SIS II). There’s a lot of further background detail in the House of Lords report on the UK’s intention to join the SIS (see here), on which I was a special advisor. (Note that Ireland does not apply any of the Schengen rules in practice yet).

It took ages for the EU to get SIS II up and running, and it finally accomplished this task by April 2013 (see Decision here). The UK had planned to join SIS II shortly after it became operational, but this was complicated by the process of opting out of EU criminal law and policing measures adopted before the entry into force of the Treaty of Lisbon, and simultaneously opting back in to some of them again, on December 1st 2014 (see discussion of that process here). This included an opt back in to the SIS rules.

Once that particular piece of political theatre concluded its final act, the EU and the UK returned to the business of sorting out the UK’s opt in to SIS II in practice. This week’sdecision completed that process, giving the UK access to SIS II data starting from March 1st. The UK can actually use that data, and enter its own data into the SIS, from April 13th.

Consequences

What exactly does participation in the SIS entail? The details of the system are set out in the 2007 Decision which regulates the use of SIS II for policing and criminal law purposes. There are also separate Regulations governing the use of SIS II for immigration purposesand giving access to SIS II data for authorities which register vehicles. The former Regulation provides for the storage of ‘alerts’ on non-EU citizens who should in principle be denied a visa or banned from entry into the EU, while the latter Regulation aims to ensure that vehicles stolen from one Member State are not registered in another one. The UK participates in the latter Regulation, but not the former, since it could only have access to Schengen immigration alerts if it fully participated in the Schengen rules on the abolition of internal border controls. On current plans, this will happen when hell freezes over.

The SIS II Decision provides for sharing ‘alerts’ on five main categories of persons or things: persons wanted for arrest for surrender or extradition purposes (mainly linked to the European Arrest Warrant); missing persons; persons sought to assist with a judicial procedure; persons and objects who should be subject to discreet checks or specific checks (ie police surveillance); and objects for seizure or use as evidence in criminal proceedings. There are also rules on the exchange of supplementary information between law enforcement authorities after a ‘hit’. For instance, if the UK authorities find that a European Arrest Warrant has been issued for a specific person, they could ask for further details from the authority which issued it.

On the other hand, the SIS does not, as is sometimes thought, provide for a basis for sharing criminal records or various other categories of criminal law data, although the EU has set up some other databases or information exchange systems dealing with such other types of data. (On criminal records in particular, see my earlier blog post here). The main point of setting up the second-generation system was to extend the SIS to new Member States (although in the end a new system wasn’t actually necessary for that purpose), and to provide for new functionalities such as storing fingerprints, which will likely be put into effect in the near future.

In practice, the UK’s participation in SIS II is likely to result in the Crown Prosecution Service receiving more European Arrest Warrants (EAWs) to process, and in more efficient processing of EAWs which the UK has issued to other Member States. It will also be easier, for instance, to check on whether a car or passport stolen in the UK has ended up on the continent, or vice versa.

Broader context

As noted already, while the UK is only now joining the SIS, the System has been around for many years, and has proved to be the precursor of many EU measures in this field. Indeed, as EU surveillance measures go, the SIS turned out to be a ‘gateway drug’: the friendly puff that led inexorably to the crack den of the data retention Directive.

Of course, interferences with the right to privacy can be justified on the basis of the public interest in enforcement of criminal law and ensuring public safety – if the interference is proportionate and in accordance with the law. Compared to (for instance) the data retention Directive and the planned passenger name records system, the SIS is highly targeted, focussing only on those individuals involved in the criminal law process, or police surveillance, or banned from entry from the EU’s territory. The legitimacy of the system therefore depends upon the accuracy and legality of the personal data placed in to it, and the connected data protection rules. On this point, the EU and national data protection supervisors have reported that many data subjects do not even know about the data held on them in SIS II, and they have produced a guide to help them with accessing their data in the system.

There’s an inevitable tension between the EU’s goal to set the world’s highest data protection standards, on the one hand, while also developing multiple huge databases, information exchange systems and surveillance laws, on the other.  It’s as if the brains of the utilitarian Jeremy Bentham and the libertarian John Stuart Mill were both battling for control of the same body – forcing it to draw up plans for the Panopticon at the same time as it was storming the Bastille. If this tension manifested itself in fiction, it would probably take the form of a comedy about a vegetarian butcher, or a virgin porn star. But the need to ensure that measures to protect our security do not remove all our liberty is not a laughing matter.

 

*This blog post is linked to ongoing research on the upcoming 4th edition of EU Justice and Home Affairs Law (forthcoming, OUP).

 

Image credit: nytimes.com

Barnard & Peers: chapter 25

Posted by Steve Peers at 23:48 No comments:

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Labels: criminal law, data protection, databases, opt-outs, right to privacy, Schengen, Schengen Information System, United Kingdom

Friday, 6 February 2015

Rights, remedies and state immunity: the Court of Appeal judgment in Benkharbouche and Janah

 

Steve Peers

Yesterday’s important judgment in Benkharbouche v Sudan and Janah v Libya by the Court of Appeal raised important issues of public international law, the ECHR and the EU Charter of Fundamental Rights, and demonstrated the relationship between them in the current state of the British constitution. The case involved two domestic workers bringing employment law complaints against the respective embassies of Sudan and Libya, which responded to the complaints by claiming state immunity, based on a UK Act of Parliament (the State Immunity Act) which transposes a Council of Europe Convention on that issue.

The question is whether invoking state immunity for these employment claims amounted to a breach of human rights law, given that Article 6 of the ECHR (the right to a fair trial) guarantees access to the courts, according to the case law of the European Court of Human Rights (ECtHR). In turn, this raised issues of EU law, given that Article 47 of the EU Charter of Fundamental Rights likewise guarantees the right to a fair trial, and some of the claims concerned EU law issues (the race discrimination and working time Directives). (Other claims, such as for ordinary wages and unfair dismissal, were not linked to EU law). The two cases didn’t concern human trafficking or modern slavery, although sometimes embassies are involved in such disputes too. But they would be relevant by analogy to such disputes, and there would also be a link to EU law in such cases, since there is an EU Directive banning human trafficking, which the UK has opted in to.

The Court of Appeal, essentially following the prior judgment of the Employment Appeal Tribunal, made a careful study of recent ECtHR case law, concluding that state immunity could no longer be invoked against all employment law claims, but only against those claims concerning core embassy staff. This could not apply to domestic workers; Ms. Janah’s tasks did not involve (for instance) shooting any British policewomen.

But what was the remedy for this breach of human rights principles? At lower levels, the tribunals had been powerless to rule on the claims for breach of the ECHR, since the UK’sHuman Rights Act awards the power to issue a ‘declaration of incompatibility’ that an Act of Parliament breaches the ECHR to higher courts only. So the Court of Appeal was the first court that could issue such a declaration, and it did so in this case. (The Court concluded that it could not ‘read down’ the relevant clauses in the State Immunity Act to interpret them consistently with the ECHR).

However, as compared to the effect of EU law, even a declaration of incompatibility with the ECHR is relatively weak, given that the potential remedy for a breach of EU law is the disapplication of national law, even Acts of Parliament if necessary, by the national courts. So the Court of Appeal also ruled that the relevant provisions of the State Immunity Acthad to be disapplied, to the extent that they were applied as a barrier to the claims based on EU law. On this point, the Court was following the Employment Appeal Tribunal, which had also ruled to disapply the Act, given that any level of national court or tribunal has the power to disapply an act of parliament if necessary to give effect to EU law.

If I had a pound for every law student who has confused the remedies in UK law for the breach of EU law with the remedies for the breach of the ECHR, I would be very rich indeed. Fortunately, the facts of this case easily demonstrate the distinction between them. Only the higher courts could even contemplate issuing a declaration of incompatibility with the ECHR; and the remedy of disapplication of the Act of Parliament is obviously stronger than the declaration of incompatibility, allowing the case to proceed on the merits (as far as it relates to EU law) rather than having to wait for Parliament to change the law in order to do so. And equally, the case shows the importance of the requirement that a case has to be linked to EU law in order for the Charter to apply: only the race discrimination and working time claims benefit from the disapplication of provisions of the Act of Parliament, and so only those claims can proceed to court as things stand.

From an EU law perspective, the most interesting point examined by the Court of Appeal was the application of the ‘horizontal direct effect’ of Charter rights, ie the application of EU law against private parties (since non-EU States aren’t bound by EU law as States, the court assimilated them to private parties). In its judgment last year in AMS (discussedhere), the CJEU distinguished between those Charter rights which could give rise to a challenge against national law based on the principle of supremacy of EU law, and those Charter rights which could not, since they were too imprecise to base a free-standing Charter claim upon. The right to non-discrimination on grounds of age fell within the former category, whereas the right of workers to be consulted and informed fell within the latter category. (Note that the CJEU case law classifies this as an application of the principle of supremacy, not horizontal direct effect, although the final outcome is the same no matter how the principle is classified, at least in cases like these).

The Court of Appeal reaches the conclusion that Article 47 of the Charter is also a provision which is precise enough to be used to challenge national legislation. That’s an important point, since Article 47 is a far-reaching and frequently invoked provision, and applies not just to state immunity issues but to many broader issues concerning access to the courts (including legal aid) and effective remedies.  For that reason, this judgment is an important precedent for national courts across the European Union faced with challenges to national laws based on Article 47 of the Charter, although of course it doesn’t formally bind any court besides the lower courts of England and Wales.

The Court didn’t need to rule on whether the substantive Charter rights raised by these cases would have the effect of disapplying national law, since it wasn’t ruling on the merits of the cases, but only on the issue of access to court. If it were ruling on the substantive issues, it would seem obvious that race discrimination claims have the same strong legal effect as age discrimination claims, as both claims are based on the same provision of the Charter (Article 21). However, claims based on breach of Article 31 of the Charter (the working time provision) might not have that strong legal effect. Indeed, an Advocate-General’s opinion in the pending case of Fennoll has concluded as much.

Furthermore, the social rights in the Charter (such as the rights set out in Article 31) are subject to a special rule in the Protocol to the EU Treaties which attempts to limit the effect of the Charter in the UK and Poland. The CJEU ruled in its NS judgment that this Protocol does not generally disapply the Charter in the UK, but it did not then rule if the Protocol might nonetheless affect the enforceability of social rights. Given that yesterday’s judgment was about Article 47 of the Charter, not about a substantive social right, it was not necessary for the Court of Appeal to grasp this nettle either.

 

Barnard & Peers: chapter 9, chapter 20

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

by Emilio DE CAPITANI

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

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

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

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

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

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

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

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

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

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

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

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

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

Background

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

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

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

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

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

Retention period

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

Inclusion of intra-EU flights

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

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

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

ANNEX

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

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

Whereas:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS

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

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

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

CHAPTER II RESPONSIBILITES OF THE MEMBER STATES

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

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

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

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

12 OJ L 105, 13.4.2006, p. 1.

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

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

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

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

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

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

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

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

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

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

CHAPTER IV IMPLEMENTING MEASURES

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

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

CHAPTER V FINAL PROVISIONS

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

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

Article 18 Statistical data

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

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

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

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

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

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

Original Published HERE

Introduction

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

Free Movement Law

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

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

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

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

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

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

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

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

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

Two Codes to rule them all: the Borders and Visa Codes

ORIGINAL PUBLISHED ON EU LAW ANALYSIS HERE

Written by Steve PEERS

In today’s judgment in Air Baltic, the Court of Justice of the European Union (CJEU) has taken the next logical step following its judgment late last year in Koushkaki, where it ruled that the EU’s visa code set out an exhaustive list of grounds for refusing a visa application.  Today the Court has confirmed that the same is true of theSchengen Borders Code. Moreover, the Court has clarified a number of general and specific points about the nature and interpretation of the two codes.

Facts and judgment

This case concerned an Indian citizen who flew from Moscow to Riga. He had a valid multiple-entry Schengen visa, which was attached to a cancelled Indian passport. He also had a second Indian passport, which was valid but which did not contain a visa. The Latvian border guards then refused him entry into Latvia, on the grounds that the valid visa had to be attached to the valid passport, not to the cancelled passport.

For good measure, the Latvian authorities also fined the airline, Air Baltic, for transporting him without the necessary travel documents. The airline appealed the fine, and lost at first instance. But an appeal court then sent questions to the Court of Justice to clarify the legal position.

The CJEU ruled first of all that the cancellation of a passport by a third country did not mean that the visa attached to the passport was invalid. This was because only a Member State authority could annul or revoke a visa, and because the visa code did not allow for the annulment of a visa in such cases anyway. The Court extended its ruling in Koushkaki to confirm that the grounds for annulling a visa were exhaustive; the same must be true of the grounds for revoking a visa.

Secondly, the Court ruled that the Schengen Borders Code did not require entry to be refused in cases like these. The different language versions of that code suggested different interpretations, but as always, the Court seeks a uniform interpretation of EU law regardless. In this case, the standard form to be given to persons who were refused entry at the border to explain why they were refused does not provide for refusal on the grounds that a valid visa was not attached to a valid passport.

Also, the Court pointed out that the idea of separate visas and passports was not unknown to EU law, since the visa code provides that in cases where a Member State refuses to recognise a passport as valid, a visa must be issued as a separate document. Checking two separate documents was not a huge burden for border guards, and refusing entry simply on the grounds that the valid passports and visas were in two separate documents would infringe the principle of proportionality.

Finally, the Court ruled that the national authorities of Member States do not have any residual powers to refuse entry to third-country nationals on grounds besides those listed in the Schengen Borders Code. The Court reached this conclusion, by analogy with Koushkaki, because: the standard form giving the grounds for refusing entry contains an exhaustive list of grounds for refusal; the nature of the Schengen system ‘implies a common definition of the entry conditions’; and this interpretation would support ‘the objective of facilitating legitimate travel’ referred to in the preamble to the visa code.

Comments

The Court’s ruling that the Schengen Borders Code provides for complete harmonisation of the rules on refusal of entry is not really surprising, particularly after the judgment in Koushkaki reaching the equivalent conclusion regarding the visa code. However, it should be noted that in today’s judgment, the Court does not repeat its qualification in Koushkaki that national authorities had wide discretion to interpret the common rules in question. Furthermore, the Schengen Borders Code is relevant not only to those third-country nationals who need visas for entry, but also those who do not, such as visitors from the USA, Canada and most of the Western Balkans.

In effect, the Court’s ruling confirms that the Schengen zone is in effect the equivalent of the EU’s customs union, as regards the movement of people. Of course, the customs union and the Schengen zone do not apply to the same countries, due to opt-outs from Schengen (UK and Ireland), the deferred admission to the Schengen system (Romania, Bulgaria, Cyprus and Croatia), and the rules on association with each system (Turkey is part of the EU’s customs union, while Norway, Iceland, Liechtenstein and Switzerland apply the Schengen rules). But the basic concept is the same, with the obvious implications as regards exclusive external competence of the EU (although a Protocol to the Treaties conserves some external competence over borders for Member States), and uniform interpretation of the rules in the respective codes.

As to the more detailed aspects of this case, the Court is surely right to rule against the pedantry of insisting that where a person holds a valid visa and a valid passport, the visa must always be attached to the passport. The underlying objective to ensure that the person concerned meets the conditions of entry is satisfied regardless of whether the visa is attached to the passport or not. Also, the Court’s ruling that the Borders Code has to be interpreted in accordance with the principle of proportionality, and in light of the objective of facilitating legitimate travel, could have broader implications in other cases.

Finally, the necessary corollary of the judgments in Koushkaki and Air Baltic is that a third-country national who meets the conditions to obtain a visa and/or cross the external borders has the right to that visa and/or to cross those borders. So these issues are not governed by national administrative discretion, but by uniform EU rules. The strengthening of the rule of law in this field is very welcome.

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

 

LogoSummerSchool2013Rome

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

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

Night view of Europe

Aim: to take stock of the current state of EAFSJ and of its foreseeable evolution within the next multiannual program 2015-2019 (to be adopted under Italian Presidency at the beginning of the next legislature).
Lenght: 4 one day modules
Subscriptions: on line on the Fondazione Basso internet site : http://www.fondazionebasso.it
Participation fees:

Euro 480,00 (ORDINARY FEE).
Euro 200,00 (FOR STUDENTS / RESEARCHERS) .
(Bank Account of Fondazione Lelio e Lisli Basso – Banca Nazionale del Lavoro Ag. Senato Palazzo Madama: IBAN IT18I0100503373000000002777 ).
Subscriptions should be submitted before June 15th.The Summer School will take place only if a minimum number of subscribers is reached !For further information : tel. 0039.06.6879953 – basso@fondazionebasso.it
Languages: lessons will be mainly in Italian (some lessons will be in English and French), teaching material will be in Italian and/or English, French.
English/Italian translation will be available.
The programme is on the web-site of Fondazione Basso (www.fondazionebasso.it -Tel. 06.6879953 – email: basso@fondazionebasso.it)

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

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

Debate

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

Speaker: Giuseppe Cataldi

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

Speaker:Ezio Perillo

Debate

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

Speaker: Oreste Pollicino

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

Speaker: Nicoletta Parisi

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

Speaker: Francesca Ferraro

Debate

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

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

Speaker: Dino Rinoldi

Debate

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

Speaker: Antonio Caiola

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

Speaker: Emilio De Capitani

Debate

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

Speaker: Lorenzo Salazar

Debate

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

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

Speaker: Valentina Bazzocchi

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

Speaker: Deirdre Curtin

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

Speaker: Vanna Palumbo

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

Speaker: Luisa Marin

Debate

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

Speaker: Henry Labayle

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

Speaker: Patricia Van de Peer

Debate

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

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

Speaker: Filomena Albano

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

Speaker: Sandro Menichelli

Debate

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

Speaker: Luca De Matteis

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

Speaker: Claudia Gualtieri

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

Final Debate

PRESENTATION OF THE COURSE

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

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

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

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

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

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

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

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

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

Speakers:

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

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

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

BuonGoverno

Negotiations on a common asylum system progress with the involvement of the European Parliament

The establishment of a common area of protection and solidarity, based on a common asylum procedure and a uniform status for those granted protection remains one of the prime objectives of the EU. Following the implementation of the first phase, the European Commission submitted (in late 2008 and early 2009) a set of proposals for the recasting of existing legal instruments as well as the setting up of a European Asylum Support Office (requested by the Council in the European Pact on Immigration and Asylum). These proposals aim to commence the second phase of EU asylum policy with the overall objective of bringing in a Common European Asylum System.

The European Parliament, in its new capacity as co-legislator in a co-decision procedure with the Council, gave its position on these proposals at first reading on 7 May 2009, expressing an overall favourable opinion.

In October 2009 the Commission submitted its two most recent proposals for the recasting of the Directive on minimum standards on procedures for granting and withdrawing refugee status and the Directive on minimum standards for qualification for refugee status and the status of beneficiaries of international protection and the content of the protection granted. The LIBE Committee appointed two rapporteurs, Sylvie Guillaume and Jean Lambert, to study these proposals. An initial debate was held in committee on 16 March 2010.

Following the entry into force of the Lisbon Treaty which endowed the Parliament with new responsibilities in the setting up of new legal instruments in this field, the LIBE Committee requested in 2008, a study to the Odysseus network (the Academic Network for legal studies on immigration and asylum in Europe) “Setting up of a Common European Asylum System – on the application of existing instruments and proposals for the new system”.

Some of the most important findings of this study  (which will be available in May 2010) were presented during the roundtable organised by the LIBE Committee on 26 April 2010.  The debate, far from exhaustively analysing the questions at stake, focused on a number of cross-cutting issues with relevance for many of the legal instruments currently under debate, namely:

  1. General principles of European law as guidelines for the definition of procedural guarantees for asylum seekers
  2. Trust among Member States on each others’ asylum systems
  3. Detention of asylum seekers: Distinction between detention and restriction to freedom of movement
  4. Identification of asylum seekers with special needs
  5. Responsibility towards asylum seekers when the EU and its Member States act outside their territory
  6. Alignment of subsidiary protection and exceptions with international law and Member States’ practices and alignment of equal rights with refugees
  7. Development of a coherent common European asylum system: accession to the Geneva Convention, reinforcement of the powers of the support office or creation of a European asylum court.

1. General principles of European law as guidelines for the definition of procedural guarantees for asylum seekers

The prohibition on refoulement is the cornerstone of international refugee and asylum law.  According to this principle States are obliged not to return a person to his country of origin, or any other country, where he/she is at risk of being subject to serious harm or human rights violations.

Current instruments, such as the Geneva Convention and protocol, recommendations of the UNHCR, the Convention on Human Rights  Council of Europe’s recommendations, rulings of the European Court of Justice (ECJ), rulings of  the European Court of Human Rights (ECtHR), do not establish common procedural guarantees for asylum seekers at the European level.

In order to establish such a common set of guarantees, it is suggested to look at the general rulings of the ECJ as well as the general principles established and transpose them in procedural safeguards. These will then could form a catalogue which allows to address the shortcomings of the directive and look at the proposals of the Commission.

The two concrete interlinked examples of the right to legal aid and the right to appeal help explaining such an approach

Right to legal aid

Legal aid to asylum seekers should  be mandatory and should be appropriate to the needs of those who need it. In order to define what appropriate means it is useful to refer to what the jurisprudence has established in this regard, namely that when somebody is vulnerable it is desirable that mandatory and free legal assistance is provided.

More specifically, the right to have access to legal aid should be determined on the basis of two criteria:

–       the weaker the user and

–       the higher the nature of the right at stake

the higher the legal assistance .

Right to appeal

The right to appeal by asylum seekers should foresee the possibility to suspend the removal of the individual who appealed.

In this regard the new proposals currently under negotiations saw  the Parliament proposing a number of amendments designed to strengthen asylum seekers’ rights, in particular by ensuring that they receive free legal assistance and by improving the arrangements for the transfer of asylum seekers between Member States.

2. Trust among Member States on each others’ asylum systems

The concept of mutual trust entails the idea that asylum seekers transferred on the basis of the EU Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin Regulation) are not subject to inhuman, unfair treatment and that such a provision is in conformity with the principle of non refoulement.

This principle, entails the idea that the Member State responsible for the asylum seeker transfer is also responsible for the individual’s non refoulement.

That is why it is appropriate to talk about qualified, rather than absolute trust between Member States. In this respect, since all Member States signed the 1951 Geneva Convention and the Convention on Human Rights it is assumed that signatories respect the obligations enshrined in these legal instruments.

However, Member States should be in the position to challenge the Dublin Regulation and refrain from transferring an asylum seeker to a State when they doubt that the principle of non refoulement is respected.

This represents a fundamental guarantee for individuals especially given that human rights standards varies greatly between Member States. Indeed the report of the UNHCR concluded that not all Member States’ standards are in line with international human rights standards.

The sovereignty clause however is not sufficient per se to guarantee adequate and effective safeguards to asylum seekers. Additional safeguards are necessary and that is why the Commission’s proposals are welcomed.

3. Detention of asylum seekers

The detention of asylum seekers is in principle an admissible instrument of preventing unauthorised entry or residence into the EU territory.

Member States possess a broad discretion to decide whether to detain potential immigrants.

According to the ECtHR decision in the Saadi case (Art. 5 para. 1(f)) ECHR does not prohibit that asylum seekers may be detained to prevent unlawful entry, even if detention is not “necessary” in an individual case.  Detention, however, is subject to the principle of proportionality, forbidding arbitrariness and excessively long detention.

According to EU law, asylum seekers must not be detained for the mere fact of filing an asylum application and detention should not impede individual to claim international protection. In fact their request should be processed in a priority manner.  The same principle can be found in the Reception Conditions Directive (Art. 14 paragraph 8).

The detention of asylum seekers is increasingly used not only as a consequence of a rejection of an application but also upon arrival of an individual. This measure contributes to the overall tendency to blur the lines between genuine refugees and ‘irregular’ migrants in public perception as well as in the management of public policies. Therefore, its legitimacy should be assessed especially against the risk of violation of fundamental rights.

Detention has become a measure of  prevention of ‘irregular’ flows where the control strategy is taking over from the exigencies of bona fide asylum seekers and refugees. This phenomenon raises humanitarian as well as legal concerns and that is why detention as a deterrence strategy for prevention of abuse of the asylum system cannot be justified.

In conclusion, detention should be only used as an exceptional measure. However European states’ practice indicates a wide range of approaches to detention which not always ensure the full respect of fundamental rights of asylum seekers. The proposals under revisions should therefore take into considerations the proportionality of such measure vis à vis the risk of violation of fundamental rights.

4. Identification of asylum seekers with special needs

The only legal instrument containing obligations on Member States is to be found in Article 17 of the Reception Directive. A study conducted by Odysseus in 2007 concluded that the majority of the Member States have not transposed the directive correctly and in some cases have not transposed it at all .

This is mainly due to the fact that Article 17 does not explicitly require, from a legal point of view, a specific procedure to be put in place in order to identify those asylum seekers with special needs.

The system rests on an identification of these persons, therefore progress towards a system of identification could be achieved either by:

  • obliging Member States to draw up a specific procedure for the identification of special needs (ex via  medical screening, assessment on whether or not individuals have the mental and physical capability to be transferred), or
  • by obliging authorities via clear regulations to contact asylum seekers, refer those with special needs and then provide adequate reception conditions.

The proposal of the Commission touches upon this aspect, trying to provide more legal certainty in this respect. Paragraph 20  of the proposal for a directive introduces an obligation for the Member States to carry out identifications.

However, the problem is the overall concept. The Commission has not specified that vulnerability should be considered as a criteria on its own right in order to carry on an accurate identification of individuals with special needs.

Therefore, although the second phase in the development of a common asylum system is an attempt to have a more cross -cutting approach, it still falls short on implementation provisions

5. Responsibility towards asylum seekers when the EU and its Member States act outside their territory

European primary and secondary law oblige the EU and its Member States to uphold the non refoulement principle and related procedural rights towards asylum seekers also when operating outside the EU territory.

Concerning primary law, Article 78 of the TFEU makes a clear reference to international law and inter alia to the Geneva Convention and the principle of non refoulement.

Also case law both at the national and international level confirm that the EU and the Member States are responsible towards individuals under their jurisdiction.

As soon as a contact between an individual and an EU or national authority is established,  all the activities related to it involve an exercise of jurisdiction requiring international human and refugee rights to be observed by the EU and /or the Member States , even if the contact does not take place in the EU territory.

Although there is no case law of the ECJ  in this regard as yet,  such aspect is indeed touched upon by other case law, namely in the field of competition and freedom of movement.

The European Charter of Fundamental Rights  in Art. 18 also contains references to obligations under international law. Furthermore, Art. 51 CFR, which regulates the CFR’s scope, does not take territory into account, only the authority responsible.

Also EU secondary law establishes such obligations:

  • The Qualification Directive (Art. 21 para. 1 of Directive 2004/83/EC): covers both refugee protection, in accordance with the Charter of Fundamental Rights and subsidiary protection
  • Asylum Procedures Directive (Art. 3 para. 1): member states are obliged to accept and examine requests for international protection submitted on their territory – this includes requests made at the border or in transit zones.
  • The Schengen Borders Code (Art.3): entry controls must be implemented “without prejudice to […] the rights of refugees and persons requesting international protection, in particular as regards non-refoulement”. Even though non-refoulement does not include a general right to admission, in practice it means that member states are obliged to allow temporary admission for the purpose of verifying the need for protection and the status of the person.

The current revision of the Frontex Mandate represents a very good opportunity to spell out such responsibilities. It has been demonstrated that Frontex is indeed responsible towards asylum seekers when carrying on operations outside EU territory. It is not true that Frontex is only responsible for the logistic of its operations. Frontex is responsible to conduct its activity in full respect of human right law, including the respect of the principle of non refoulement.

To reach this goals it is fundamental that the new revised mandate grants the United Nations High Commissioner for Refugees the participation to the operational activities of Frontex in order to have an effective and transparent monitoring of the agency and ensure that no violation of human rights takes place.

6. Alignment of subsidiary protection and exceptions with international law and Member States’ practices and alignment of equal rights with refugees

The EU Directive on refugee definition and complementary protection (EU Qualification Directive) established for the first time an obligation of the Member States to grant subsidiary protection status to persons who do not qualify as refugees, but are nevertheless in need of international protection.

Therefore, subsidiary protection is granted in some countries when expulsion would be in conflict among others with Article 3 of the European Convention of Human Rights, because such acts would be considered inhuman or cruel treatment.

The current scope of the qualification directive with its use of the subsidiary forms of protection is limited  and it does not provide for a  widely recognised definition of subsidiary protection .

The application of various solutions to these problems resulted in emergence of practice whereby different statuses were granted, such as “status B”, “subsidiary protection”, de facto status” and “humanitarian status”.

There is no international document, listing all persons that may be eligible for subsidiary protection, but EU Qualification Directive provides three categories of individuals to whom this protection may apply:

– persons who because of reason of death penalty or execution;

– torture or inhuman or degrading treatment or punishment in the country of origin;

– serious and individual threat to life or person by reason of indiscriminate violence in situations of international or internal armed conflict are unable, or owing to such risk, unwilling to avail themselves of the protection of the country of origin.

Despite this no provision regulates cases in which a person who is excluded from subsidiary protection by reason of having committed a serious crime, is  unable to return to the country of origin due to threat of torture.

The revision of the directive should address this aspect, as well as the problem related to family reunification, which is not provided by any EU directive.

7. Development of a coherent common European asylum system: accession to the Geneva Convention, reinforcement of the powers of the support office or creation of a European asylum court.

The development of a coherent common European Asylum System can take place either by reforming the current structure or establishing a completely new structure.

Since experience shows that revolutionary interventions are difficult to be put into place, it is probably more realistic to look at possible ways to modify the existing system of EU asylum policies.

The EU already has a series of legal instruments which provide guarantees and rights to asylum seekers. The problem is that they do not have the necessary legal effect.

For example the principle of equality is at best relative in asylum law.

Therefore it is necessary to look at different options to develop a coherent system.

Accession to the Geneva Convention

The accession to the Geneva Convention might be feasible. However it goes much further than EU law in  terms of rights recognised to asylum seekers. Therefore, the EU and the Member States in this case should align their system to meet the same standards.

European Asylum Support Office

It is currently too early to foresee the direction that the European Asylum Support Office will take. Its activities and development have already been criticised. However, it is necessary to support the further development of this office because in order to be able to reach its goals it must have a comprehensive picture of all migration factors.

Therefore, the Parliament has sought, by means of its amendments, to clarify the tasks of the European Asylum Support Office in the area of the collection, management and analysis of information, in particular as regards countries of origin, with a view to the establishment of common assessment criteria, to clarify the arrangements for cooperation with the UNHCR and the NGOs concerned, and to lay down more precise rules governing the deployment and role of the asylum support teams.

European Asylum Court

These elements however are not sufficient to develop a coherent common European Asylum System. In order to reach a real protection of fundamental rights rather than a simple management of EU asylum policies, it is necessary to eliminate the divergences that exist between the EU and national asylum legislation.

Therefore on the one hand the European Asylum support office should impose further obligation on member States to ensure that principles of EU law is correctly transposed. On the other hand it would be necessary to have a specialised asylum court.

However, this last suggestion might be less realistic due to obstacles in the Treaty of Lisbon as well as the renowned jealousy of the ECJ to keep its own competencies.

In conclusion, in a context of a single space where freedom of movement is one of the funding principles of the European Union, it is paradoxical and counterproductive to still have a mosaic of asylum systems that differ from state to state. The proposals for amendments of the Dublin Regulation, Eurodac, Reception Directive, Qualification Directive and Procedures Directive represent an improvement compared to the previous situation. However, this does not mean that the modified proposals represent the best possible solutions. Indeed, several shortcomings and loopholes have been highlighted in relation to the right of asylum seekers also in relation to the new proposals.

It is true that the EU is building a stronger asylum system, in line with the international standards. However, the asylum system start to apply only once an individual has reached a State territory. Hence, protection is subordinated to admission according to general immigration laws, which generally include a series of clauses that make the access to EU territory increasingly difficult also for those entitled to international protection.

The European Union and its Member States will probably have to put into place a third phase of asylum harmonisation takling the above mentioned shortcomes, including the problems resulting from an increasingly restrictive immigration policy.

LB

Action Plan on the Stockholm Programme released by Statewatch

European Commission: Stockholm Programme: Statewatch Analysis: Action Plan on the Stockholm Programme: A bit more freedom and justice and a lot more security (pdf) by Tony Bunyan: “The “harnessing of the digital tsunami” as advocated by the EU Future Group and the surveillance society, spelt out in Statewatch’s “The Shape of Things to Come” is embedded in the Commission’s Action Plan as it is in the Stockholm Programme….There is no mention of the European Security Research Programme (ESRP). Much of the technological development is being funded under the 1.4 billion euro security research programme. See: Statewatch/TNI report: Neoconopticon: EU security-industrial complex.

Statewatch Briefing: European Commission: Action Plan on the Stockholm Programme (pdf) Comments by Professor Steve Peers, University of Essex – Full-text: Communication from the Commission: Delivering an area of freedom, security and justice for Europe’s citizens Action Plan Implementing the Stockholm Programme (COM 171/2010, pdf)

http://www.statewatch.org/


Towards a European regime of sea border rescue operations?

How is it possible to avoid conflict of competences between Member States concerning the surveillance of maritime borders in the south of the Mediterranean, as well as possible conflict concerning the responsibility to rescue vessels in danger or to reject illegal immigrants at the border?

These questions have been raised several times in the past by both the press and assiduous public opinion. Starting from the case of Cap Anamur, debates spread at the European Union level, where the control of the external borders of the Schengen area is now regulated by the Schengen Borders Code (which entered into force on 13 October 2006, CE Regulation  N. 562/2006 of the EP and the Council).

In fact the Schengen Code does not include a comprehensive regulation on sea borders control although it foresees, respectively in articles 12 and 13, surveillance modalities and rejection by costal guards. (*)

Events related to marine assistance and rescue are not regulated and therefore Member States refer to international conventions (and related protocols) such as the Montego Bay United Nations Convention on the Law of the Sea of 10 December 1982 – UCLOS- which requires the master of a ship to render assistance to any person found at sea in danger or distress under article 10 of the 1989 Convention on salvage, or, the International Convention for the Safety of Life at Sea of 1974 (SOLAS), – and more importantly  the International Convention on Maritime Search and Rescue of1979 –SAR-.

The main problems arises at the particle level. Thought the regulation may be consistent, the implementation varies widely between Member States. As the European Commission pointed out in its Study on the international law instruments in relation to illegal immigration by sea in 2007, “There is indeed a duty to respect fundamental rights when implementing the Schengen Code, but it is not stated explicitly in relation to surveillance operations. As regards the principle of non-refoulement, there are differences in the Member States’ interpretations of this principle of international law, with some Member States, for example, contesting its applicability in international waters.”

“Another difference between Member States relates to how they identify a situation requiring assistance: for some Member States the vessel must be on the point of sinking; for others it is sufficient for the vessel to be unseaworthy; some Member States require the people on board to request assistance, while others do not. The proposal is based on the SAR system and stipulates that as soon as there is any question about the safety of a vessel or a person the SAR authorities must be contacted and given all the information they need to determine whether or not this is an SAR situation According to the Sar Convention each search and rescue area have been delimited for each of  the country concerned search and rescue regions for which they are responsible and these regions do not necessarily correspond to the existing maritime borders.”

The SAR Convention also imposes a precise obligation to rescue and assist persons and ships in distress at sea regardless of nationality, status or circumstances in which the persons are found. The obligations relating to search and rescue include the transport to a safe place.

According to the Commission “Deciding where the people rescued should be taken is a difficult question and is seen as one of the weaknesses of the SAR system. The 2004 amendments require all states to cooperate in resolving SAR situations; the state responsible for the SAR region must, with their cooperation, decide where those rescued will be taken. One Member State did not accept these amendments. A particular point of contention was where those rescued should be disembarked if the state responsible for the SAR region failed to fulfil its obligations in this respect. Some Member States are reluctant to take part in operations because they fear that they will end up having to take those rescued to their own country.”

Such difficulties often become emergencies for the persons involved in the rescue operations. Therefore, last November the Commission suggested to integrate the Schengen Code with the main international norms applicable in the field of marine search and rescue and the disembarking of individuals in safe harbours in order to guarantee fair and equal treatment at the European level and clear signing rules especially when surveillance operations take place under the coordination of the Frontex Agency.

Initially, the proposal did not obtain the support of national experts; however it may go through after the abstention of Italy and Malta.

If the Council adopts it, it will then be up to the European Parliament to intervene. In this case the legislative assembly will have time up to the 7 April to raise its objections concerning the procedure followed by the European Commission to integrate these provisions within the Schengen Code.

The European Commission defined these provisions as purely implementing measures (which seems a rather brave interpretation given the nature of their content), allowing therefore for their quicker adoption than if they were considered as measures having a fundamental impact in the Code. Within a few weeks it will be possible to know what will be the outcome of this, nonetheless, good initiative of the Commission.
EDC.

(*)From the SCHENGEN CODE
Article 12

Border surveillance

1. The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally.

2. The border guards shall use stationary or mobile units to carry out border surveillance. That surveillance shall be carried out in such a way as to prevent and discourage persons from circumventing the checks at border crossing points.

3. Surveillance between border crossing points shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats. It shall involve frequent and sudden changes to surveillance periods, so that unauthorised border crossings are always at risk of being detected.

4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to apprehend individuals crossing the border illegally. Surveillance may also be carried out by technical means, including electronic means.

5. Additional rules governing surveillance may be adopted in accordance with the procedure referred to in Article 33(2). (Paragraph modified by the (CE) Regulation N. 296/2008 of the European Parliament and the Council of 11 March  2008)

Article 13

Refusal of entry

1. A third-country national who does not fulfil all the entry conditions laid down in Article 5(1) and does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas.

2. Entry may only be refused by a substantiated decision stating the precise reasons for the refusal. The decision shall be taken by an authority empowered by national law. It shall take effect immediately.

The substantiated decision stating the precise reasons for the refusal shall be given by means of a standard form, as set out in Annex V, Part B, filled in by the authority empowered by national law to refuse entry. The completed standard form shall be handed to the third-country national concerned, who shall acknowledge receipt of the decision to refuse entry by means of that form.

3. Persons refused entry shall have the right to appeal. Appeals shall be conducted in accordance with national law. A written indication of contact points able to provide information on representatives competent to act on behalf of the third-country national in accordance with national law shall also be given to the third-country national.

Lodging such an appeal shall not have suspensive effect on a decision to refuse entry.

Without prejudice to any compensation granted in accordance with national law, the third-country national concerned shall, where the appeal concludes that the decision to refuse entry was ill-founded, be entitled to correction of the cancelled entry stamp, and any other cancellations or additions which have been made, by the Member State which refused entry.

4. The border guards shall ensure that a third-country national refused entry does not enter the territory of the Member State concerned.

5. Member States shall collect statistics on the number of persons refused entry, the grounds for refusal, the nationality of the persons refused and the type of border (land, air or sea) at which they were refused entry. Member States shall transmit those statistics once a year to the Commission. The Commission shall publish every two years a compilation of the statistics provided by the Member States.

6. Detailed rules governing refusal of entry are given in Part A of Annex V.

The new powers of the Court of Justice after the entry into force of the Lisbon Treaty

The press release published on November 30th by the Court of Justice is worth reading by everybody interested in the European Law as well by the every individual whishing to bthe protection of its rights.
The very essential and clear text is the following:

The Treaty of Lisbon and the Court of Justice of the European Union

The Treaty of Lisbon, which was signed on 13 December 2007 by the 27 Heads of State or Government of the Member States of the Union, comes into force on 1 December 2009. It amends the two fundamental treaties – the Treaty on European Union (TEU) and the Treaty establishing the European Community, with the latter to be known in future as the ‘Treaty on the Functioning of the European Union’ (TFEU). (1)
The Treaty of Lisbon makes changes to the organisation and jurisdiction of the Court of Justice of the European Union.

Continue reading “The new powers of the Court of Justice after the entry into force of the Lisbon Treaty”

Progresses made in the field of Freedom of movement within the European Union

The Council exchanged views on the Commission’s guidelines for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Continue reading “Progresses made in the field of Freedom of movement within the European Union”