Category: 3. Fundamental rights – Charter

Economic challenges and prospects of the refugee influx

THE FULL TEXT OF THE EUROPEAN PARLIAMENT RESEARCH SERVICE IS ACCESSIBLE HERE 

SUMMARY
The current refugee influx represents the largest population movement in Europe since World War II. Its size and complexity make it difficult to draw conclusions on the economic challenges and prospects valid for each Member State of the European Union (EU).
Many experts agree that, in the short term, the refugee influx will lead to rising costs, arising from the need to provide food, shelter and first aid. In the longer term, the refugee influx could be positive for the European economy by, for example, addressing the EU’s alarming demographic trends. Depending on their education, skills and willingness to work, refugees might improve the ratio of active workers and also contribute to innovation, entrepreneurship and GDP growth. Regarding the labour market, migrants can fill important niches both in fast-growing and declining sectors of the economy, and contribute to labour-market flexibility.
Refugee, migration and asylum policy is largely under the auspices of the Member States and intergovernmental EU policy-making. The uncontrolled mass arrival of refugees has highlighted the different views in the Member States on migration and immigration, driven by economic, social and cultural divergences and spurred the debate on a new EU migration policy.
According to the European Parliament, the EU and its Member States should target the potential gains from the current influx by, inter alia, successful economic and social integration of the refugees.

Continue reading…

The New EU General Data Protection Regulation – A First Assessment

Original published on the European Academy for Freedom of Information and Data Protection  site (EAID)

by Peter SCHAAR

The results of the trilogue of the EU institutions (European Parliament, Commission and Council) on the data protection reform package (SEE BELOW)  is an important milestone on the way into the global information society. The General Data Protection Regulation (GDPR) will replace 28 different data protection laws of the Member States.

The reach of the new legal framework extends beyond the European Union. Even companies with headquarters outside the EU will have to comply with the GDPR so far they are doing business in EU Member States and process data generated here (article 3 para. 2). Compliance with the rules is monitored by independent data protection authorities, which all have in future same, effective sanction powers.

In cases of serious infringements they may impose fines up to up to 4% of the global annual turnover against the respective companies (art. 79). It has to be highlighted, that a number of last minute attempts have failed to mitigate or weaken the new privacy requirements in central points, such as on scope of the regulation or the purpose limitation rules.

Nevertheless, there are also areas where the result is less positive than hoped for. Thus, the EP has not been completely successful in the requirements on individual consent to the processing of personal data (‚the data subject’s consent‘ means any freely given, specific, informed and unambiguous indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative, signifies agreement to personal data relating to them being processed“ – article 4 para 8). Explicit consent is only required if consent refers to „special categories of personal data“ (article 9) – such as health data or genetic information. Also the rules on profiling lag behind the demands of privacy advocates. The relevant provisions are limited to decisions based solely on automated processing, which produce legal effects concerning the data subject or similarly significantly affects him or her (article 20).

During the negotiations, critics – in particular from Germany – complained the GDPR would weaken or undermine the data protection requirements defined by national law.  Today we can say, this fear did not realize, at least in general.

Only in specific areas the new legal requirements are lagging behind the present national laws, for example with regard to the more stringent data protection provisions for Internet services of the German Telemedia Act.  On the other hand, the German data protection level is just here high only in theory, but not de facto.

This became evident from the example Facebook: German data protection authorities have failed with lawsuits against the company whose European headquarters is located in Dublin – to undertake to comply with the German data protection rules.

However, every company that does business in Europe in future must comply with the new single European data protection law. This is real progress, even if the GDPR in certain areas lagging behind the national law.

In addition, there are other areas – such as the Federal Citizens Registration Act – where data protection requirements of new EU regulation are stricter than the present German legislature.

The unconditional dissemination of public register data on request to everybody is not compatible any more with European law and must be terminated.

Light and shadow also for the rules on the internal data protection officer (DPO). On one hand, article 35 obliges public authorities and government agencies – except for courts acting in their judicial capacity – to designate a DPO.  Also those private companies have to designate a DPO, whose „core activities consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and sistematic monitoring of data subjects on a large scale“ or with core activities consisting „of processing on a large scale of special categories of  data pursuant to Article 9 and data relating to criminal convictions and offences“.

However, the significantly more stringent requirements of the German Federal Data Protection Act on DPOs have not completely been included in the GDPR. At least the adopted text allows the national legislators to stick to the mandatory designation of DPO (article 35 (4): „in cases other than those referred to in paragraph 1, the controller or processor … may or, where required by Union or Member State law shall, designate a data protection officer …“) .

Even if, as expected, the provisions now adopted – the GDPR and the Directive on data protection for police and justice – will soon pass the formal EU legislative procedure, a lot of work has still to be done at European and at national level prior to their entry into force in 2018.

  • At EU level the compatibility of other legal provisions with the GDPR has to be reviewed. This particularly applies to the directive on data protection in electronic communications („ePrivacy Directive“).
  • Governments and parliaments of the Member States are requested to review their national law. This applies in particular for Germany with its numerous sector specific data protection provisions. Many laws need to be revised, some need to be eliminated.
  • A special mission coming to the national legislators is the processing of personal data in the employment context. Article 82 GDPR provides the national legislators with  competence to regulate the handling of employee data in detail. („Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees‘ personal data in the employment context, …“).
  • National regulators have also to deal with the question of how far the legal provisions for data processing for the purposes of prevention, investigation, detection or prosecution of criminal offenses or the execution of criminal penalties need to be adapted to the requirements of the new Data Protection Directive for police and justice.
  • Finally, businesses and public authorities have to adapt their practices to the new rules. New processes and procedures have to be designed, existing procedures need to be changed …

The European Academy for Freedom of Information and Data Protection (EAID), Berlin, will focus in the coming years on the impact of new EU data protection rules. For 2016 we are planning workshops for decision-makers in business, politics and administration on implementation of the new EU rules and on needs for revision of national legislation.

READ MORE ON THE DATA PROTECTION REFORM PACKAGE:

The text of the Draft Regulation as agreed is accessible HERE  (204 Pages !)
The text of the Multicolumn Table (with the positions of the three institutions) of the Draft REGULATION is here (671 pages !)
The text of the Draft Directive (data protection in the law enforcement sector) as agreed is accessible here ( 102 pages)
The text of the Multicolumn Table with the position of the three institutions on the Draft DIRECTIVE  is accessible here (271 pages !)

Zakharov v Russia: Mass Surveillance and the European Court of Human Rights

Reblogged also by EU LAW ANALYSIS on Wednesday, 16 December with permission from the IALS Information Lawand Policy Centre blog

by Lorna Woods, (*) 

Introduction 

The European Court of Human Rights has heard numerous challenges to surveillance regimes, both individual and mass surveillance, with mixed results over the years.   Following the Snowden revelations, the question would be whether the ECtHR would take a hard line particularly as regards mass surveillance, given its suggestion in Kennedy that indiscriminate acquisition of vast amounts of data should not be permissible. Other human rights bodies have condemned this sort of practice, as can be seen by the UN Resolution 68/167 the Right to Privacy in the Digital Age. Even within the EU there has been concern as can be seen in cases such as Digital Rights Ireland (discussed here) and more recently in Schrems (discussed here). The Human Rights Court has now begun to answer this question, in the Grand Chamber judgment in Zakharov v. Russia(47143/06), handed down on December 4 2015.

Facts

Zakharov, a publisher and a chairman of an NGO campaigning for media freedom and journalists’ rights, sought to challenge the Russian system for permitting surveillance in the interests of crime prevention and national security. Z claimed that the privacy of his communications across mobile networks was infringed as the Russian State, by virtue of Order No. 70, had required the network operators to install equipment which permitted the Federal Security Service to intercept all telephone communications without prior judicial authorisation.

This facilitated blanket interception of mobile communications. Attempts to challenge this and to ensure that access to communications was restricted to authorised personnel were unsuccessful at national level. The matter was brought before the European Court of Human Rights. He argued that the laws relating to monitoring infringe his right to private life under Article 8; that parts of these laws are not accessible; and that there are no effective remedies (thus also infringing Art. 13 ECHR).

Judgment

The first question was whether the case was admissible. The Court will usually not rule on questions in abstracto, but rather on the application of rules to a particular situation. This makes challenges to the existence of a system, rather than its use, problematic. The Court has long recognised that secret surveillance can give rise to particular features that may justify a different approach. Problematically, there were two lines of case law, one of which required the applicant to show a ‘reasonable likelihood’ that the security services had intercepted the applicant’s communications (Esbester) and which favoured the Government’s position, and the other which suggested the menace provided by a secret surveillance system was sufficient (Klass) and which favoured the applicant.

The Court took the opportunity to try to resolve these potentially conflicting decisions, developing its reasoning in Kennedy. It accepted the principle that legislation can be challenged subject to two conditions: the applicant potentially falls within the scope of the system; and the level of remedies available. This gives the Court a form of decision matrix in which a range of factual circumstances can be assessed. Where there are no effective remedies, the menace argument set out in its ruling in Klass would be accepted.

Crucially, even where there are remedies, an applicant can still challenge the legislation if ‘due to his personal situation, he is potentially at risk of being subjected to such measures’ [para 171]. This requirement of ‘potentially at risk’ seems lower than the ‘reasonable likelihood’ test in the earlier case of Esbester. The conditions were satisfied in this case as it has been recognised that mobile communications fall within ‘private life’ and ‘correspondence’ (see Liberty, para 56, cited here para 173).

This brought the Court to consider whether the intrusion could be justified. Re-iterating the well-established principles that, to be justified, any interference must be in accordance with the law, pursue a legitimate aim listed in Article 8(2) and be necessary in a democratic society, the Court considered each in turn.

The requirement of lawfulness has a double aspect, formal and qualitative. The challenged measure must be based in domestic law, but it must also be accessible to the person concerned and be foreseeable as to its effects (see e.g Rotaru). While these principles are generally applicable to all cases under Article 8 (and applied analogously in other rights, such as Articles 9, 10 and 11 ECHR), the Court noted the specificity of the situation. It stated that:

‘…. domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures’ [para 229].

In this, the Court referred to a long body of jurisprudence relating to surveillance, which recognises the specific nature of the threats that surveillance is used to address. In the earlier case of Kennedy for example, the Court noted that ‘threats to national security may vary in character and may be unanticipated or difficult to define in advance’ [para 159].

While the precision required of national law might be lower than the normal standard, the risk of abuse and arbitrariness are clear, so the exercise of any discretion must be laid down by law both as to its scope and the manner of its exercise. It stated that ‘it would be contrary to the rule of law … for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power’ [para 247]. Here, the Court noted that prior judicial authorisation was an important safeguard [para 249]. The Court gave examples of minimum safeguards:

  • The nature of offences which may give rise to an interception order
  • A definition of the categories of people liable to have their telephones tapped
  • A limit on the duration of telephone tapping
  • Protections and procedures for use, storage and examination of resulting data
  • Safeguards relating to the communication of data to third parties
  • Circumstances in which data/recordings must be erased/destroyed (para 231)
  • the equipment installed by the secret services keeps no logs or records of intercepted communication, which coupled with the direct access rendered any supervisory arrangements incapable of detecting unlawful interceptions
  • the emergency procedure provided for in Russian law, which enables interception without judicial authorization, does not provide sufficient safeguards against abuse.

The Court then considered the principles for assessing whether the intrusion was ‘necessary in a democratic society’, highlighting the tension between the needs to protect society and the consequences of that society of the measures taken to protect it. The Court emphasised that it must be satisfied that there are adequate and effective guarantees against abuse.

In this oversight mechanisms are central, especially where individuals will not – given the secret and therefore unknowable nature of surveillance – be in a position to protect their own rights. The court’s preference is to entrust supervisory control to a judge. For an individual to be able to challenge surveillance retrospectively, affected individuals need either to be informed about surveillance or for individuals to be able to bring challenges on the basis of a suspicion that surveillance has taken place.

Russian legislation lacks clarity concerning the categories of people liable to have their phones tapped, specifically through the blurring of witnesses with suspects and the fact that the security services have a very wide discretion. The provisions regarding discontinuation of surveillance are omitted in the case of the security services. The provisions regarding the storage and destruction of data allow for the retention of data which is clearly irrelevant; and as regards those charged with a criminal offence is unclear as to what happens to the material after the trial.

Notably, the domestic courts do not verify whether there is a reasonable suspicion against the person in respect of whose communications the security services have requested interception be permitted. Further, there is little assessment of whether the interception is necessary or justified: in practice it seems that the courts accept a mere reference to national security issues as being sufficient.

The details of the authorisation are also not specified, so authorisations have been granted without specifying – for example – the numbers to be interception. The Russian system, which at a technical level allows direct access, without the police and security services having to show an authorisation is particularly prone to abuse. The Court determined that the supervisory bodies were not sufficiently independent. Any effectiveness of the remedies available to challenge interception of communications is undermined by the fact that they are available only to persons who are able to submit proof of interception, knowledge and evidence of which is hard if not impossible to come by.

Comments

The Court could be seen as emphasising in its judgment by repeated reference to its earlier extensive case law on surveillance that there is nothing new here. Conversely, it could be argued that Zakharov is a Grand Chamber judgment which operates to reaffirm and highlight points made in previous judgments about the dangers of surveillance and the risk of abuse. The timing is also significant, particularly from a UK perspective. Zakharov was handed down as the draft Investigatory Powers Bill was published. Cases against the UK are pending at Strasbourg, while it follows the ECJ’s ruling in Schrems, with Davis (along with the Swedish Tele2 reference), querying whether theDigital Rights ruling applies to national data retention schemes, now pending before the ECJ (on that issue, see discussion here). The ECtHR noted the Digital Rights Ireland case in its summary of applicable law.

In setting out its framework for decisions, the Court’s requirement of ‘potentially at risk’ even when remedies are available seems lower than the ‘reasonable likelihood’ test in Esbester. The Court’s concern relates to ‘the need to ensure that the secrecy of surveillance measures does not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court’ [para 171]. This broad approach to standing is, as noted by Judge Dedon’s separate but concurring opinion, in marked contrast to the approach of the United States Supreme Court in Clapper where that court ‘failed to take a step forward’ (Opinion, section 4).

The reassessment of ‘victim status’ simultaneously determines standing, the question of the applicability of Article 8 and the question of whether there has been an infringement of that right. The abstract nature of the review then means that a lot falls on the determination of ‘in accordance with the law’ and consequently the question of whether the measures (rather than individual applications) are necessary in a democratic society. The leads to a close review of the system itself and the safeguards built in. Indeed, it is noteworthy that the Court did not just look at the provisions of Russian law, but also considered how they were applied in practice.

The Court seemed particularly sceptical about broadly determined definitions in the context of ‘national, military, economic or ecological security’ which confer ‘almost unlimited degree of discretion’ [para 248]. Although the system required prior judicial authorisation (noted para 259], in this case it was not sufficient counter to the breadth of the powers. So, prior judicial authorisation will not be a ‘get out of gaol free’ card for surveillance systems. There must be real oversight by the relevant authorities.

Further, the Court emphasised the need for the identification of triggering factor(s) for interception of communications, as otherwise this will lead to overbroad discretion [para 248]. Moreover, the Court stated that the national authorisation authorities must be capable of ‘verifying the existence of a reasonable suspicion against the person concerned’ [260-2], which in the context of technological access to mass communications might be difficult to satisfy. The Court also required that specific individuals or premises be identified. If it applies the same principles to mass surveillance currently operated in other European states, many systems might be hard to justify.

A further point to note relates to the technical means by which the interception was carried out. The Court was particularly critical of a system which allows the security services and the police the means to have direct access to all communications. It noted that ‘their ability to intercept the communications of a particular individual or individuals is not conditional on providing an interception authorisation to the communications service provider’ [para 268], thereby undermining any protections provided by the prior authorisation system.

Crucially, the police and security services could circumvent the requirement to demonstrate the legality of the interception [para 269]. The problem is exacerbated by the fact that the equipment used does not create a log of the interceptions which again undermines the supervisory authorities’ effectiveness [para 272]. This sort of reasoning could be applied in other circumstances where police and security forces have direct technical means to access content which is not dependent on access via a service provider (e.g. hacking computers and mobiles).

In sum, not only has the Russian system been found wanting in terms of compliance with Article 8, but the Court has drawn its judgment in terms which raised questions about the validity of other systems of mass surveillance.

  • Professor of Internet Law, University of Essex

 

The Reform of Frontex: Saving Schengen at Refugees’ Expense?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 16 December 2015)

by Steve Peers

Years ago, shortly before the creation of Frontex (the EU’s border control agency) and the big EU enlargement of 2004, I discussed the future of EU borders policy with a senior German civil servant. Anxious about the forthcoming enlargement of the EU (and, in time, Schengen), his vision was that every Lithuanian or Polish border post would be jointly staffed by a friendly German.

Yesterday’s proposals from the European Commission don’t precisely reproduce that vision – but they do embody the same doubt that Member States (in the south, rather than the east) can be fully trusted to patrol the external border. Given that Frontex has been created in the meantime, it’s the agency itself – flanked by reserves from national border agencies – which would be sent in to help patrol the borders of Member States, albeit only in certain cases.

This is only one of a batch of proposals made yesterday. I’ll sum them all up, but focus on this one, as it’s the most important. Overall, though, the proposals are flawed, in two contradictory ways: they simultaneously seek to do too much in the area of border controls (where the Frontex proposal exceeds EU powers and is politically unprincipled) and too little in the area of asylum (since there is no significant attempt to address humanitarian or protection needs within the EU). In short, they seek to save the Schengen system, at the expense of refugees.

Overview

There’s a Commission communication issued yesterday which tries to sum up all the new proposals. But in an even smaller nutshell, here’s what the Commission has tabled. The flagship proposal is a Regulation which would replace the existing Frontex legislation, creating a new ‘European Border and Coast Guard’ (EBCG) consisting of national border guards plus the agency.  This is accompanied by two proposals for minor consequential amendments to the Regulations establishing the EU’s Fisheries Control Agency and Maritime Safety Agency, whose work would be coordinated with the EBCG.

Next, an amendment to the Schengen Borders Code would increase checks at the external borders on EU citizens and, to some extent, non-EU citizens, for security purposes. A fifth proposed Regulation attempts to make expulsion and readmission more effective, by creating a uniform document to be used during removals of irregular migrants to their country of origin.

There are non-binding measures on border control issues too. The Commission has adopted a Handbook for use operating the EU’s ‘Eurosur’ system of maritime surveillance. It has also released its latest regular report on the Schengen system in practice.

In the area of asylum, there’s only one proposal for a binding measure: a Decisionwhich would exempt Sweden from the EU’s system of relocation of asylum-seekers (which I previously discussed here), for a period of one year. There’s a non-binding Commission Recommendation for a voluntary humanitarian admission programme of refugees from Turkey. Finally, there are Commission reports on the operation of the ‘hotspots’ for immigration control in Greece and Italy, and on the application of the recent plan to manage asylum and migration flows coming through the Western Balkans.

The new European Border and Coast Guard

As noted already, the proposal would replace the existing legislation establishing Frontex, which was first adopted in 2004, then amended in 2007 and 2011. (I previously produced a codified text of the Regulation – see here). To compare it with the text of the rules it replaces, see the Annex to the proposal. There would be no change to the separate legislation, adopted in 2014, which regulates Frontex actions as regards maritime surveillance (see my comments on that law here).

It should be emphasised that the legislation would not apply to the UK or Ireland, because they don’t participate fully in Frontex. In fact, according to CJEU case law, they can’t participate fully in Frontex unless they join the Schengen system fully – which is hardly likely, to say the least (it would require a referendum in the UK). However, the current loose cooperation between Frontex, the UK and Ireland would be retained, particularly for joint expulsions.

These new rules would – if agreed – significantly transform the status and role of Frontex. I won’t examine every detail for now (I might come back to the finer points during or at the end of the negotiations). Rather, my focus here is on the key aspects of the proposal. Keep in mind that this proposal is far from a ‘done deal’, since it has to be approved by a qualified majority in the Council (the UK and Ireland don’t have a vote, due to their opt-out) as well as the European Parliament. Already press stories suggest that many Member States oppose some key features of the proposal.

The first key feature of the law is the relationship between Frontex and national border forces. At present, the current Regulation states that ‘the responsibility for the control and surveillance of the external borders lies with the Member States’. Frontex is merely tasked with the ‘coordination’ of national forces.

But the proposed Regulation would, in effect, promote Frontex from the job of tea lady to the role of chief executive officer. The new law would not just upgrade the EU agency itself, but create a ‘European Border and Coast Guard’ consisting of national forces and the Agency. The Agency will adopt an ‘operational and technical strategy for the European integrated border control management’. National authorities then adopt their own strategies, but they must be ‘coherent’ with the Agency’s strategy. To put the strategy into effect, the Agency will not only be ‘reinforcing, assessing and coordinating’ national forces, but also taking control of them when Member States are not able to do so effectively.

The current tasks of Frontex – training, risk analysis, research, operational support, border surveillance, and support for expulsions – would all be retained and considerably enhanced. For instance, Frontex would have powers to send liaison officers to Member States, to check the ‘vulnerability’ of external border controls, to create a ‘return office’, and to gather and analyse more personal data. It would also have powers to send staff to third countries to participate in operations, not just (as at present) liaison officers. It would have more staff and funding, as well as reserve forces from Member States to call upon for border control or joint return operations. Most significantly, it would be able to send forces to an external border, in certain cases, without a Member State’s consent.

Is this power compatible with the limits on the powers of the EU? Article 72 TFEU states that the Justice and Home Affairs (JHA) Title of the Treaty ‘shall not affect the exercises of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’. This Article must apply to border control as well as policing, since there was an equivalent clause in the border controls and immigration Title of the Treaty before it was merged with the policing rules by the Treaty of Lisbon. It obviously does not rob the EU of all power to adopt laws regulating borders, since Article 77 TFEU goes on to confer powers to adopt laws on ‘the checks to which persons crossing external borders are subject’ and which are ‘necessary for the gradual establishment of an integrated management system for external borders’.

But the JHA Title specifically restricts EU powers regarding intelligence agencies, and bans coercive powers for Europol (the EU police agency) and prosecutorial powers for Eurojust (the EU prosecutors’ agency). In my view these restrictions are particular applications of the general rule set out in Article 72, which must mean that while the EU can establish rules on border controls and regulate how Member States’ authorities implement them, it cannot itself replace Member States’ powers of coercion or control, or require Member States to carry out a particular operation.  This is consistent with Article 4(2) TEU, which requires the EU to respect Member States’ ‘essential state functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding internal security’, and with the requirement that any common EU defence would have to be agreed unanimously and ratified by national parliaments.

So the EU does not have the powers to send Frontex or its reserve forces to other Member States without their consent, or to require Member States to deploy those reserve forces without their consent either. Moreover, this is politically problematic for many Member States, who have historic concerns about foreign forces coming on to their territory without consent, stemming from the Cold War, the Second World War, and earlier history besides. While Frontex and its reserves should not be regarded as an ‘army’, due to their limited size and functions, they will nonetheless be perceived as such. So this aspect of the proposals is not only legally suspect, but politically ill-judged.

What to make of Frontex’s other enhanced powers, which Member States are rather more likely to accept? The key issue here is the accountability of Frontex for human rights abuses. The agency has fought a long battle with the EU Ombudsman to evade any accountability for individual cases, but it would finally lose that war, if this proposal is accepted. Individuals (or someone acting on their behalf) could make a complaint about human rights abuses, but it would be rejected if it was ‘anonymous, malicious, frivolous, vexatious, hypothetical or inaccurate’. Each complaint would go through the Frontex Fundamental Rights Officer, who would decide on admissibility and then either forward the complaint to the Frontex Executive Director or a national border force. If the complaint is well-founded it will be followed up, possibly by disciplinary action.

However, the proposed process is inadequate. The Executive Director, who will decide on the merits of admissible claims, is obviously not independent of Frontex. There is no reference to a remedy if the complainant believes that his or his complaint has been wrongly rejected as inadmissible or not well-founded. Even where Frontex considers the complaint well-founded, the remedies are ineffective: there is no reference to damages, or a possible criminal prosecution in the most outrageous cases. Furthermore, the new rules are limited in scope, as they do not apply to national border guards, who are responsible for alleged cases of illegal push-backs and assaults upon migrants. To address this, the other proposals released yesterday should be amended to require Member States to hold independent investigations with effective remedies in any case where national border guards are alleged to have acted in breach of fundamental rights.

There is also a need for specific rules regulating Frontex (and national authorities’) action as regards the ‘hotspots’ for migrants at external borders, to clarify that they are not making decisions on the merits of asylum applications or issuing return decisions, and that only national authorities can make such decisions with full respect for the safeguards and content of EU and national law. (For more on the lack of clarity regarding the ‘hotspots’, see Frances’ Webber’s analysis here).

Other new measures

The most significant other new measure is the proposal for changes to theSchengen Borders Code. At present (see codified text here), Member States must check EU citizens at the external borders (either on entry or exit), to ensure that they hold an EU Member State’s passport which is not registered as lost or stolen. But there is no obligation to check them in security databases, except on a ‘non-systematic basis’. As for non-EU citizens, they must be more thoroughly checked on entry, including the use of security databases, but on exit the consultation is only optional, and security checks need only be carried out ‘wherever possible’.

Both sets of rules would be amended by the new proposal. EU citizens would have to be checked in security databases, both on entry and exit. But if this ‘would have a disproportionate impact on the flow of traffic’ at land and sea borders, Member States could decide to carry out such checks on a ‘targeted’ basis. There is no such derogation for air borders, which will also be subject to separate legislation (recently agreed in principle) concerning the collection of passenger records (Member States will also apply this law to internal Schengen flights). Also, the enhanced border checks won’t be recorded as such in a database, although that would happen in future if recent plans to include EU citizens in the future ‘smart borders’ rules are put into effect. As for non-EU citizens, the current derogation relating to exit will be abolished, and there will always have to be a check in security databases, regardless of any disproportionate impact on traffic.

So overall, checks on EU citizens in security databases would no longer be the exception to the rule (as at present); they would be the rule – subject to exceptions. The exceptions are relatively limited and the proposal does not accept that pressure at air borders could also be ‘disproportionate’. Surely that is a possibility, since if checks add several seconds each to a check of hundreds of disembarking passengers, a back-up could swiftly ensue. Given that data on air passenger movements will soon be recorded anyway, and that the Schengen Information System can’t be used to deny entry to EU citizens, the only practical use for the new rules would be in catching someone who was meant to be arrested, perhaps on the basis of a European Arrest Warrant, or who should be placed under surveillance. But in the latter case it might be awkward to arrange for the surveillance to start without tipping off the person concerned that it’s happening. The proposal might prove useful in detecting people subject to potential arrest due to suspicion of receiving terrorist training (see the separate recent proposal on this point), but is it really necessary for that purpose that it apply at all air borders?

Overall, it may be questionable whether any increase in security that may result from this proposal is proportionate to its impact on passenger movements. There would be a stronger case to amend the Borders Code to allow Member States to check certain flights or border crossings systematically following a risk assessment. This may give rise to concerns about discrimination, but there are already distinctions based on nationality as to who needs a visa, and it would have to be specified that all those on the particular flight must be checked – not just those who ‘appear Muslim’. Checks on all flights could only be justified if it were clear that ‘foreign fighters’ were returning to the EU via other countries too.

As for the other proposals, the Regulation on a standard travel document for expulsion would not change the substantive rules on expulsion; time will tell if it leads to non-EU countries accepting more expelled persons.

The real problem is with the lack of ambition of the asylum measures. As noted above, the only binding measure suggested yesterday would exempt Sweden from the EU’s relocation rules. This is largely a cosmetic gesture, since only a tiny fraction of the 160,000 who were meant to be relocated – which anyway is not a huge proportion of those entering Greece and Italy – have in fact been relocated. In the meantime, the capacity of Greece and other States to register migrants, process asylum applications, and ensure basic living conditions for the persons concerned is clearly under immense strain.

What the EU really needs is a new strategy to deal with these protection and humanitarian needs. Is there anything it can do to make the relocation programme work? Failing that, can it assist Member States to process asylum applications, or do more than it is doing to ensure basic living conditions are satisfied? Why the focus on empowering Frontex, and no parallel attempt to empower the EU’s asylum support agency to play a greater role to address some or all of these issues?

Furthermore, pending a full review of the EU’s Dublin system (to be completed early next year), the Commission could at least have issued a recommendation to Member States on how to apply the existing Dublin rules on family reunion, and to widen the admission of family members to admit siblings, and the relatives of EU citizens or non-EU citizens who are legally resident other than as refugees or asylum-seekers.

As Thomas Spijkerboer and Tamara Last have pointed out, there is no shortage of migration controls in the EU. The death toll of migrants and refugees has built up over the decades in which visa requirements were imposed and carriers were sanctioned for letting those without authorisation get on a flight or a ferry. Bolstering Frontex may have an impact on the management of those who arrive, but solves neither the underlying problems in the country of origin or the huge pressure placed on national asylum systems – or the human misery that accompanies it.

NE BIS IN IDEM : interesting conclusions of Advocate General BOT

Without prejudice of the future Ruling of the Court on the subject, the  Advocate General Yves BOT conclusions published yesterday (FRENCH version HERE  ) are worth reading as they try to address  for the first time the compatibility of the Schengen Acquis with the european area of freedom security and justice as newly framed by the Lisbon Treaty and the Charter of Fundamental Rights 

EDC 

CONCLUSIONS DE L’AVOCAT GÉNÉRAL YVES Bot présentées le 15 décembre 2015 (1)

Affaire C‑486/14 Procédure pénale contre Piotr Kossowski

[demande de décision préjudicielle formée par le Hanseatisches Oberlandesgericht Hamburg (tribunal régional supérieur de Hambourg, Allemagne)] «Renvoi préjudiciel – Espace de liberté, de sécurité et de justice – Convention d’application de l’accord de Schengen – Articles 54 et 55, paragraphe 1, sous a) – Charte des droits fondamentaux de l’Union européenne – Articles 50 et 52, paragraphe 1 – Principe ne bis in idem – Validité de la réserve à l’application du principe ne bis in idem – Acquis de Schengen – Principe de reconnaissance mutuelle – Confiance mutuelle – Poursuites pénales dans un autre État membre contre la même personne et en raison des mêmes faits – Notion de ‘même infraction’ – Notion de ‘jugement définitif’ – Examen au fond – Droit des victimes»

  1. La présente affaire pose, pour la première fois, la question de la validité des réserves à l’application du principe ne bis in idem, prévues à l’article 55 de la convention d’application de l’accord de Schengen (2), au regard de l’article 50 de la charte des droits fondamentaux de l’Union européenne (ci-après la «Charte»).
  2. En particulier, le Hanseatisches Oberlandesgericht Hamburg (tribunal régional supérieur de Hambourg) demande si la possibilité offerte aux États membres, inscrite à l’article 55, paragraphe 1, sous a), de la CAAS, de ne pas appliquer ce principe lorsque les faits visés par le jugement étranger ont eu lieu soit en tout, soit en partie sur leur territoire constitue une limitation à l’article 50 de la Charte autorisée par l’article 52, paragraphe 1, de celle-ci.
  3. Cette affaire est, également, l’occasion pour la Cour de préciser sa jurisprudence sur la notion de «jugement définitif», au sens des articles 54 de la CAAS et 50 de la Charte.
  4. Dans les présentes conclusions, nous exposerons les raisons qui nous amènent à faire valoir que la réserve prévue à l’article 55, paragraphe 1, sous a), de la CAAS doit être déclarée invalide. Puis, nous expliquerons pourquoi, selon nous, le principe ne bis in idem énoncé aux articles 54 de la CAAS et 50 de la Charte doit être interprété en ce sens qu’une ordonnance de non-lieu adoptée par le ministère public et clôturant la procédure d’instruction ne peut pas être qualifiée de «jugement définitif», au sens de ces articles, lorsqu’il ressort manifestement de la motivation de celle-ci que les éléments qui constituent la substance même de la situation juridique, tels que l’audition de la victime et celle du témoin, n’ont pas été examinés par les autorités judiciaires concernées.

I –    Le cadre juridique

A –    Le droit de l’Union Continue reading “NE BIS IN IDEM : interesting conclusions of Advocate General BOT”

Supreme allies: Top national courts and the implementation of EU law

ORIGINAL PUBLISHED ON “DESPITE OUR DIFFERENCES”

by Daniel Sarmiento, (*)

In a short time-frame, two high courts of two Member States, the French Cour de Cassation and the Spanish Tribunal Constitucional, have delivered two important judgments on the implementation of EU Law by lawyers and domestic courts. The two decisions touch different subject-matters and deal with different claims, but they are equally relevant for what they represent for the correct implementation of EU Law. As I said a few weeks ago in a previous post, national high courts are becoming key players in EU Law, and the Court of Justice should cherish and look after this highly valuable ally.

Last May, the French Cour de Cassation ruled in favor of a former worker who had sued his lawyer for not making a proper defense of his client (see the judgment here). The lawyer did not invoke the Court of Justice’s case-law stated in the well-known cases of Mangold, Kücükdeveci, Petersen, etc., on discrimination on the grounds of age. As a result of it, the worker lost his case against his former employer. The Cour de Cassation stated that the claimant’s chances of success in case of having invoked the Court of Justice’s case-law were up to 80%. Therefore, the certainty of the loss suffered entitled the claimant to successfully claim damages from his lawyer.

Yesterday, the Spanish Constitutional Court, in plenary formation, ruled in favour of another worker whose claim based on EU Law was plainly ignored by the High Court of Madrid (see the judgment here). Following the Court of Justice’s case-law in the cases of Gavieiro Gavieiro, Lorenzo Martínez and others, which solved a series of cases identical to the one of the claimant, it was obvious that this case-law applied and solved the case. However, the High Court of Madrid ignored this and dismissed the claimant’s appeal.

The Spanish Constitutional Court has now stated that any jurisdiction in Spain that ignores a judgment of the Court of Justice is breaching the fundamental right to a fair trial, as provided by article 24 of the Spanish Constitution. This gives any claimant in such circumstances the chance of invoking another ground of appeal, and, above all, the use of the special procedure for the protection of fundamental rights before the Constitutional Court (recurso de amparo).

These two judgments impose considerable responsibilities on lawyers and judges. The French decision sets a high standard of professional expertise on practitioners, especially on those who are highly qualified and (as in the case of France) allowed to plead before the highest courts of the country. The Spanish judgment is a nice reminder for all courts in Spain that the case-law of the Court of Justice is binding in the strongest possible way, and therefore binding for all courts. Both cases have in common a total absence of reference to EU Law, by the lawyer in his submissions in one case, and by a court in its judgment in another.

Therefore, the sum of both decisions is not revolutionary, because it is obvious that a total lack of reference to the applicable law, whether it is national or EU Law, raises serious issues about the decision at stake. However, it is important that the highest courts of Member States are assuming the task of ensuring the correct application of EU Law. This is of course a matter for the Court of Justice, but also for its domestic counterparts too. And it is nice to see that these cases have been solved without the need to make a preliminary reference to the Court of Justice. High courts know what their role is and how it must be put into practice under national law. Now it is time for lawyers and for the remaining domestic courts to act accordingly.

*Professor of EU Law at the University Complutense of Madrid

The EU or the Commonwealth: a dilemma for the UK – or a false choice?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS on Sunday, 29 November 2015

by Steve Peers

The United Kingdom has its finger in many pies: the EU, NATO, the United Nations Security Council and the Commonwealth, to name just a few. Of these, the Commonwealth – which has just finished its latest summit meeting – obviously has the closest specific link to British culture and history, since it’s mainly comprised of our former colonies. (A few Commonwealth members are not former colonies, and some obscure ex-colonies like the USA chose not to join. For a full list of members, see here).

Like many British citizens, I have friends and relatives in many Commonwealth countries: Canada, India, New Zealand, Australia, Singapore and South Africa. But I also have friends in the rest of the EU, as well as a professional interest in EU law. There’s no incompatibility between the two at a personal level: we can all enjoy poutine as well as paella, or watch Antonio Banderas one day and Hugh Jackman the next. But is the same true of the UK’s trade relationships?

When the UK joined the EU over forty years ago, it sundered special trade links which it had with most of the Commonwealth, and replaced them with trade links with the EU (as it’s called now). One of the arguments sometimes invoked in favour of the UK leaving the EU in the forthcoming referendum on membership is that the UK could reverse this process, reviving its Commonwealth trade.

But a lot has changed in forty years. In my view, what’s true for individuals is also true for the country as a whole: the UK does not have to choose between trade with the Commonwealth and trade with the EU, but can (and increasingly does) have both. This blog post explains why. (I’ll write another post on the issue of the EU’s trade with non-Commonwealth countries in future).

Background

Back in 1973, the UK had to end special trade ties with the Commonwealth because the EU is a customs union, which (according to the definition set out in international law) means that it has common trade rules with the rest of the world. The EU has power to sign certain types of trade deals, instead of its Member States (although in practice those deals are usually subject to Member States’ unanimous consent). But the EU’s powers don’t extend to all types of ‘trade deals’, as that phrase is used by non-specialists. Those powers apply to the imposition of taxes at the border (known as tariffs) or other economic regulation of trade between countries, but not to commercial agreements with other countries to buy British goods. So, for instance, the UK and India were free to conclude £9 billion worth of trade deals of that broader type during the recent visit of the Indian Prime Minister.

It’s sometimes argued that trade deals are irrelevant, because ‘governments don’t trade, businesses do’. While it’s true to say that much trade takes place on the basis of contracts between companies, governments still play a large role – either as purchasers of many goods and services, or as regulators with the power to impose tariffs or regulation which might reduce the volume of trade.

When the UK joined the EU, the EU was mainly only interested in special trade deals with nearby countries (although this included the Commonwealth countries of Cyprus and Malta). Mostly the EU then preferred to trade with third countries on the basis of multilateral rules instead. However, the EU did extend its existing special trade agreement for former sub-Saharan African, Caribbean and Pacific (ACP) colonies of France and Belgium to most of the former colonies of the UK in those parts of the world. But it did not extend any special treatment to richer Commonwealth countries, like Canada and Australia, or Commonwealth states in Asia, like India or Malaysia.

But times have changed. In recent years, the EU has become more interested in negotiating bilateral trade agreements with many countries, and not relying so much on the multilateral trade system established by the World Trade Organisation (WTO). This has transformed the EU’s trade relationship with Commonwealth countries (along with many other states).

EU/Commonwealth trade today

The result of this change in policy is that the EU has agreed free trade agreements (FTAs), or is in the process of negotiating free trade agreements, with the vast majority of Commonwealth states – a full 90% of the 50 Commonwealth countries that are not in the EU. This includes the six Commonwealth states that accounted (in 2011) for 84% of Commonwealth trade – and many more besides.

More precisely, there are already FTAs in force between the EU and 18 of those 50 Commonwealth states (36% of the remaining Commonwealth). The EU has agreed FTAs with 14 of those countries (28%), subject only to completing the ratification process. It is negotiating or about to start negotiating FTAs with 13 states (26%). That leaves only 5 Commonwealth states (10% of the non-EU total) that the EU is not planning FTA talks with. (For full details of the status of EU trade relations with each of the countries concerned, with links to further information, see the annex to this blog post).

Of course, the Commonwealth includes many different types of economy, but the EU has agreed FTAs with two of the wealthiest Commonwealth states (Canada and Singapore), and has recently committed to talks with two more (Australia and New Zealand). It also has deals or is negotiating with most of the larger developing Commonwealth members (India, Nigeria, South Africa and Malaysia).

It’s sometimes suggested that the EU’s trade deals with other countries don’t benefit the UK. But the UK’s exports to Commonwealth countries have beenincreasing at over 10% a year – with increases (over two years) of 33% to India, 31% to South Africa, 30% to Australia and 18% to Canada. In fact, since 2004, Britishexports to India are up 143%. Needless to say, this increase in trade with the Commonwealth (while an EU member) must have created or maintained many British jobs.

Criticisms of the EU’s trade policy

The EU’s trade policy is often criticised on three particular grounds. While there may be some force to these arguments, the issue in the upcoming referendum is whether these problems would actually be solved by the UK leaving the EU.

First of all, it’s often argued that EU trade agreements are not fair for developing countries. In fact, the EU’s negotiation of FTAs with developing Commonwealth countries in the last decade is in part due to WTO rulings that the EU could not just sign one-way trade deals, liberalising only access to EU markets; such treaties have to liberalise trade on both sides (the EU had resisted this). The EU does offer less generous unilateral trade preferences as an alternative to two-way deals (and some Commonwealth states, like Bangladesh, prefer this).

If the UK left the EU, it could decide not to sign trade deals with some of the developing Commonwealth countries that the EU has signed deals with. It could also offer a more generous version of unilateral trade preferences. However, the UK would not be free to sign deals for one-way trade liberalisation, since it would be bound by the same WTO rules on trade agreements that the EU breached when it signed those deals. Moreover, while not replacing the EU’s trade deals would arguably help the poorest countries’ economies, UK exports to those States would logically be lower.

The second argument is that the EU’s trade deals are a problem for the environment and public services, and give industry overly generous intellectual property protection, with the result (for instance) that prices of basic medicines rise due to extended patent protection. But this argument is equally made against many trade deals that the EU is not a party to at all – such as the recent Trans-Pacific Partnership agreement.

So, while (stepping outside the Commonwealth for a moment) the planned EU/US trade agreement, known as TTIP, has attracted critics concerned about its effect upon the UK’s health care (among many other things), those issues would not magically go away if the UK, having left the EU, sought to negotiate its own trade agreement with the USA instead. The controversial parts of the draft deal are surely attractive to the US side as well as the EU side; it’s not as if the EU is in a position to issue non-negotiable demands to desperate, poverty-stricken Americans.

The third argument is that the EU is not sufficiently interested in pursuing trade deals. As the facts discussed above show, it’s quite false to suggest that the EU is not interested in trade deals with Commonwealth countries, or that the UK’s EU membership makes it impossible for British businesses to increase their exports to those countries. But could it be argued that the UK alone would do a better job of negotiating such trade deals, and negotiating them more quickly, after Brexit?

It’s true that it often takes years to negotiate EU trade agreements, and that some negotiations stall or slow down to a snail’s pace (with India, for instance). But this is not unique to the EU. Over twenty years ago, for instance, the Clinton administration developed a plan for a ‘Free Trade Area of the Americas’ – but it has never come to full fruition, and talks eventually fizzled out. There’s no guarantee that the UK alone would be able to reach agreements more quickly than the EU as a whole.

In any event, as noted above, the EU already has agreed trade deals with 64% of Commonwealth countries, and is negotiating with another 26%. Some of the latter negotiations are likely to be completed by the time that Brexit took place – since that would probably happen two years after the referendum date, so likely in 2018 or 2019 (for more discussion of the process of withdrawal from the EU, see here).

So the UK would have to ask perhaps three-quarters of its Commonwealth partners for trade deals to replace those already agreed with the EU. They might agree quickly to extend to the UK a parallel version of their existing arrangement with the EU, since that would not really change the status quo. But they might not be interested in negotiating any further trade liberalisation. If they are interested, they will ask for concessions in return, and this will take time to negotiate.

For the remaining one-quarter or so of states, the UK will have to start negotiations from scratch, in some cases having to catch up with EU negotiations that are already underway. And there is no guarantee that these other states will want to discuss FTAs, or that negotiations would be successful.

Overall then, there’s no certainty that UK exports to the Commonwealth would gain from Brexit. They might even drop, if some Commonwealth countries aren’t interested in replicating the EU’s trade agreements. Alternatively, they might increase – but it’s hard to see how any gain in British exports would be enormous, given the existence of so many FTAs between the EU and Commonwealth countries already, and the uncertainty of those states’ willingness to renegotiate those deals.

Could this very hypothetical increase in exports to the Commonwealth make up for any loss in UK exports to the EU following Brexit? Obviously, this assessment depends on how Brexit would affect UK/EU trade relations. That’s a hugely complex subject, which I will return to another day, but suffice it to say that while I think a UK/EU trade deal after Brexit is likely, it’s far from guaranteed. And it’s hugely unlikely that any such trade deal would retain 100% of the UK’s access to the EU market. There are many reasons to doubt this could happen, but first and foremost: why would the EU send the signal that a Member State could leave the EU but retain all of its trade access? If it did that, the EU would be signing its own death warrant.

The key fact to keep in mind here is that the UK’s trade with the Commonwealth isless than one-quarter of its trade with the EU. So to make up for even a 10% drop in exports to the EU, the UK would have to increase exports to the Commonwealth by more than 40%. How likely is that, when the vast majority of trade between the EU and the Commonwealth would already be covered by FTAs at that point?

Taken as a whole then, it’s clear that the UK can remain a member of the EU andtrade with the Commonwealth – and that this trade will only increase in future as more EU FTAs with Commonwealth states come into force or are negotiated. Leaving the EU, on the other hand, is liable to lead to reduction in trade with the remaining EU without any plausible likelihood that trade with the Commonwealth would increase by anything near the level necessary to compensate.

Annex

Canada: FTA agreed. It must still undergo the formal ratification process.

Australia: FTA negotiations start soon

New Zealand: FTA negotiations start soon

South Africa: FTA in force

India: FTA under negotiation

Singapore: FTA agreed. It must still undergo the formal ratification process.

Malaysia: FTA under negotiation

Pakistan, Bangladesh, Sri Lanka, Maldives: No plans for FTA

12 Caribbean Commonwealth states: FTA in force between EU and 15 countries including Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Vincent and the Grenadines, Saint Lucia, Saint Kitts and Nevis and Trinidad and Tobago

Brunei: No plans for FTA

2 Pacific Commonwealth states: FTA in force with Papua New Guinea and Fiji

7 more Pacific Commonwealth states: FTA under negotiation between EU and 12 more countries including Kiribati, Nauru, Samoa, the Solomon Islands, Tonga, Tuvalu and Vanuatu

3 West African Commonwealth states: FTA agreed with 16 West African countries including Nigeria, Ghana and Sierra Leone. It must still undergo the formal ratification process. (Note that Gambia left the Commonwealth in 2013; but it is also part of this agreement).

Cameroon: FTA in force

4 East African Commonwealth states: FTA agreed with 5 East African countries including Kenya, Tanzania, Uganda and Rwanda. It must still undergo the formal ratification process.

2 Southern and Eastern African Commonwealth states: FTA in force with 4 Southern and Eastern African countries including Mauritius and Seychelles (and also Zimbabwe, a former Commonwealth country).

2 other Southern and Eastern African Commonwealth states: FTA under negotiation with 7 more Southern and Eastern African countries including Malawi and Zambia.

5 Southern African Commonwealth states: FTA agreed with Botswana, Lesotho, Namibia, Swaziland and Mozambique. It must still undergo the formal ratification process.

Schengen, un coupable idéal ?

ORIGINAL PUBLISHED ON CDRE SITE (25 NOVEMBRE 2015)

par Henri Labayle, 

Les réalisations européennes servent de bouc émissaire aux crises nationales. Ce n’est pas chose nouvelle. Après l’Euro, l’espace « Schengen » de l’Union est aujourd’hui sur la sellette. Les attentats terroristes lui auraient donné le coup de grâce, après ceux de la crise des migrants. Est-ce bien réaliste, est-ce vraiment opportun ?

Les discours officiels relèvent ici de la vieille fable de la paille et de la poutre. C’est aux Etats membres eux-mêmes que le conseil du ministre de l’Intérieur français de « se reprendre » devrait être donné tant la construction de Schengen est dépendante de leur volonté. Néanmoins, le réalisme interdit l’optimisme. Ayant perdu de vue ses caractéristiques initiales, Schengen n’échappera pas à une remise en question profonde.
Le fabuleux destin de l’espace Schengen, sa « success story », enregistrent incontestablement au coup d’arrêt, dont il conviendra de mesurer l’impact réel. Il y a des explications à cela.

1. Une construction datée

Les principes de Schengen sont inscrits désormais dans les traités : abolition des contrôles aux frontières intérieures, reportés là où l’espace commun est en contact avec les pays tiers. Sont-ils toujours à la hauteur des défis ? Répondent-ils à la menace terroriste comme à la pression migratoire ? A trop raisonner à logiciel constant, on peut en douter.

Le contexte de la création de Schengen, en 1985, a été oublié. Fruit d’un accord bilatéral franco-allemand, rejoint par les Etats du Bénélux, Schengen s’inscrivait dans un paysage aujourd’hui disparu : peu de participants, ensemble homogène animé des mêmes buts. Au point d’être scellé dans une convention d’application dont la date n’est pas indifférente : 1990, au lendemain de la chute du mur de Berlin …

En attendre une réponse efficace à des défis qui n’existaient pas lors de sa conception est un peu simpliste.
Que Schengen n’ait pas été à même, en 2015, d’arrêter les flots de réfugiés remontant le ventre mou du couloir des Balkans s’explique : il a été conçu en 1990 dans la logique d’un continent fermé, d’une Europe coupée en deux par le rideau de fer, ignorant les 7700 kilomètres de frontières terrestres devenues les siennes aujourd’hui. Figée dans une problématique Nord/Sud, l’Europe de l’époque n’avait aucune idée de la dimension Est/Ouest qui s’y est surajoutée.
Le contexte géopolitique de l’époque le confirme. L’environnement de Schengen était fait de l’Union soviétique de Gromyko au Maroc d’Hassan II en passant par la Tunisie de Ben Ali et la Libye de Kadhafi, sans parler de la Syrie ou de la Yougoslavie de Tito. Les dictateurs qui l’entouraient étaient ses meilleurs garde-frontières et la vague migratoire de 2015 inimaginable …

L’argument vaut aussi en matière terroriste. Oubli ou mauvaise foi des partisans d’un retour aux frontières nationales, celles-ci font obstacle à la lutte anti-terroriste. D’ETA réfugié en France à l’IRA en République d’Irlande ou à la bande à Baader en France, les exemples ne manquent pas. Leur maîtrise nationale empêcha-t-elle la vague d’attentats des années 80 en France ? Evidemment non.
Pour autant, « l’obsession » de la frontière justement décrite par Michel Foucher n’a pas disparu. En fait, Schengen se borne à déplacer le lieu où la frontière joue toujours son rôle de barrière, de protection. Il est un compromis entre l’ouverture d’un continent, notamment pour des besoins économiques, et sa fermeture, pour des raisons sécuritaires.

La crise de 2015 met ouvertement en question l’équilibre de ce compromis, sa capacité à assumer la fonction sécuritaire de la frontière commune. Les Etats, en trente ans, l’ont construit et maintenu envers toute logique, d’où leur responsabilité centrale.

2. Des compromis boiteux

Habillé d’un prétexte sécuritaire, ce que l’on appelait à l’époque le « déficit sécuritaire », Schengen répondait en fait à une autre réalité : celle du besoin économique d’un continent asphyxié, cloisonné en Etats aussi nombreux que petits. Le marché intérieur, lancé exactement à la même période, ne pouvait s’en satisfaire.
Le détour par la case « sécurité » dissimule à peine cette vérité. Ouvrir l’espace intérieur était d’abord un impératif économique, satisfaisant les opérateurs mais plus facile à assumer en mettant en avant la lutte contre l’immigration ou le crime. La réinstauration des contrôles provoquée par la crise des attentats de Paris confirme l’impact économique de cette ouverture : retards dans les aéroports, kilomètres de bouchons sur les autoroutes aux passages frontaliers avec l’Espagne ou l’Italie… Le compromis entre mobilité et sécurité, pourtant exclusivement au cœur du projet initial Schengen, s’est réalisé au détriment de la seconde. Quitte à ignorer les aspirations des citoyens européens.
D’autant que, dans sa quête de points d’appui, la construction européenne s’est emparée de Schengen pour en faire un symbole. Curieux retournement des choses, Schengen vilipendé lors de sa création, stigmatisé parce que qualifié de « liberticide » et que « l’Europe des polices » était alors un gros mot, fut ensuite présenté comme l’acquis principal de la liberté des citoyens européens. Avant aujourd’hui d’être à nouveau accusé de tous les maux d’une intégration européenne qu’il ne réalise pourtant pas.

La vérité se cache ailleurs. A force de non-dits et de compromis étatiques, la démarche sécuritaire quasi-exclusive sur laquelle reposait Schengen initialement s’est progressivement banalisée.
Elle imposait le respect d’un certain nombre de principes. Avant toute autre chose, celui de la responsabilité de chaque Etat, garant par son sérieux de la sécurité de tous. D’où le refus initial de l’ouvrir à des partenaires jugés peu fiables, de l’Italie à la péninsule ibérique ou à la Grèce.
La logique communautaire, celle des élargissements, l’a emporté sur ce paramètre. Une prétendue « confiance mutuelle » entre Etats a été vantée dans un univers où la méfiance demeure la règle, peu sensible au credo du monde libéral.

Puisque, depuis des années, la Grèce était une passoire et ne remplissait plus ses obligations, comment s’étonner que le système ait volé en éclat au début de l’été ? Puisque, depuis des années, le système dit de « Dublin » (imaginé à Schengen) ne remplissait pas son office, pourquoi s’étonner de l’abcès de fixation ouvert hier à Sangatte, aujourd’hui à Calais ? Enfin, faute de donner un sens au mot « sanction », pourquoi l’Union européenne ne s’est-elle pas préoccupée d’une réaction vigoureuse, réservant ses foudres aux eaux de baignade et aux aides d’Etat …

Arbitrant au moyen de compromis médiocres, quand il aurait sans doute fallu établir publiquement et respecter des priorités politiques, l’Union s’est donc trouvée démunie lorsque la bise est venue, lorsque les urnes nationales et européennes se sont emplies de votes protestataires. Faisant l’aubaine de partis extrémistes dépourvus de toute réponse réaliste, elle s’est ainsi placée sur la défensive.
L’impasse faite sur la dimension économique du contrôle des frontières illustre cette absence de pilotage. Le mirage des solutions technologiques de demain, les « smarts borders » et la biométrie, ajouté au lobbying des grandes multinationales désireuses d’obtenir les marchés publics y sacrifiant, ne peut dissimuler l’aberration consistant à confier la sécurité de tous à un Etat membre, la Grèce, étranglé financièrement et budgétairement pour les raisons que l’on sait …

S’il est exact que les Etats Unis consacrent 32 milliards de dollars à leur politique migratoire dont la moitié au contrôle des frontières, comment comprendre les 142 millions d’Euros du budget de Frontex ?

Dilué, Schengen a perdu de vue l’originalité de sa charge pour être appréhendé comme une politique ordinaire. Sauf que les Etats membres n’ont en rien abdiqué.

3. Une logique intergouvernementale

Laboratoire de la construction européenne, Schengen demeure une construction aux mains des Etats.
Au prix d’une certaine schizophrénie, les Etats ont en effet prétendu à la fois intégrer leur action mais en conserver la maîtrise. Entre ceux qui voulaient mais ne pouvaient pas en faire partie (la Bulgarie, la Roumanie), ceux qui pouvaient mais ne le voulaient pas (les iles britanniques), ceux qui ne pouvaient pas mais que l’on a voulu (la Suisse, la Norvège, l’Islande) et ceux qui ne pouvaient pas et dont on aurait pas du vouloir (la Grèce), Schengen est devenu un véritable patchwork.

La greffe aurait pu prendre. Elle n’a été qu’imparfaite.
D’abord car la diversité des situations nationales n’a pas disparu. D’une part, les législations et pratiques nationales demeurent suffisamment éloignées pour que l’effet « vases communicants » ne joue pas. Migrants comme criminels ont parfaitement identifié ces points faibles. D’autre part car le degré d’attraction des Etats membres de cet espace ne s’est pas réduit, rendant inutile le souhait de responsabiliser l’ensemble. Convaincus que l’Allemagne et la Suède étaient des eldorados, les demandeurs de refuge n’envisagent pas d’autre destination, pour la plus grande satisfaction des Etats membres qu’ils traversent et qui vont jusqu’à leur faciliter la tâche.

Ensuite, parce que les Etats refusent toujours la contrainte. En indiquant clairement dans son article 4 que « la sécurité nationale relève de la seule souveraineté de chaque Etat membre », le traité sur l’Union fixe une barrière infranchissable.

Les enseignements des commissions d’enquête au lendemain des attentats de Charlie Hebdo le confirment. Le dispositif européen est moins en cause que les conditions de sa mise en œuvre. La faillite de Schengen n’est pas dans la poursuite mais dans la prévention, dans le renseignement en amont des attentats et l’alimentation des outils communs qui n’est pas obligatoire. La qualité remarquable de l’action policière et judiciaire, y compris par delà la frontière franco-belge, ne dissimule la faillite de la prévention politique et policière, des deux cotés de cette frontière.
Comment Mehdi Nemmouche hier, Abaaoud ou les frères Abdeslam cette semaine, ont-ils pu perpétrer leurs crimes sans obstacle réel, échappant aux contrôles Schengen autant que nationaux ? Qui refusait jusqu’au Conseil de vendredi dernier d’inclure les « combattants étrangers » dans le SIS et pourquoi 5 Etats seulement fournissent-ils plus de la moitié des informations sur leurs déplacements au Système d’information d’Europol de l’aveu du coordinateur européen de la lutte contre le terrorisme ?

L’absence de transparence de l’Union ne facilite pas la réponse. La responsabilité des Etats membres est pourtant au cœur de ce fiasco, constat déjà posé après Charlie Hebdo, sans réelle suite.

La France n’y échappe pas, étonne par l’arrogance de notre discours public. Des failles de son contrôle judiciaire aux pannes de son système de fichier Chéops, à sa gestion des documents d’identité, aux  erreurs de ses services de renseignements ou aux moyens alloués et à l’autisme de ses gouvernants qui qualifient de simples « complicités françaises » l’action des terroristes de Paris, elle n’est pas en situation d’administrer les leçons qu’elle prétend donner à la Belgique et à l’Union.

Celle-ci doit pourtant se remettre en question.

Quant au périmètre de son action d’abord. Malgré le politiquement correct, la composition de l’espace commun où contrôles comme échanges de renseignement s’effectuent est une question ouverte. Les Pays Bas, comme d’autres, semblent réfléchir à un redimensionnement effectué soit par un repli, sur un petit nombre de partenaires performants, soit par une mise à l’écart, de membres jugés non fiables.

Quand au fond ensuite. Les principes d’organisation sur lesquels Schengen repose, frontières intérieures/extérieures demeurent aussi pertinents qu’hier. En revanche, ils ne peuvent plus se satisfaire du vide politique actuel. La cohérence exige de percevoir l’asile comme un même devoir, réclame de criminaliser le radicalisme et le terrorisme de façon identique. Ce préalable n’est pas satisfait aujourd’hui dans l’Union. De même que la « solidarité » doit avoir un sens concret pour les Etats membres, ces derniers doivent partager l’accueil des réfugiés et privilégier la coopération et la police judiciaires et la coordination des poursuites à l’action exclusive des services de renseignement. Dans tous les cas, il faut y mettre le prix.

Alors, pourquoi n’entendons nous pas les mots de « parquet européen », « d’équipes communes d’enquête », « d’Eurojust » ? Pourquoi l’essentiel du contingent de la relocalisation est-il encore vacant ? Parce que nous n’osons pas lever le tabou de l’action commune, de la quasi-fédéralisation qu’impliquent le développement des agences se substituant aux Etats défaillants, que nous prétendons que l’administration nationale des politiques européennes est toujours l’alpha et l’oméga de la construction européenne ?

L’hypothèse de l’avancée, même si celle du repli est peu crédible sinon impossible, est donc incertaine. A l’image de celle du projet européen tout entier dont Schengen demeure bien, toujours, un « laboratoire ».

Data retention and bulk data: sometime the Council raises some good questions. But what about the answers ?

It does not happen very often but in a PUBLIC document diffused yesterday the Council Presidency raises some very interesting questions arising from the 2014 CJEU ruling on data retention (see below). It is worth recalling that already at that time the Court justified its decision with reference not only to art. 8 of the Charter (protection of personal data) but also to art. 7 (protection of privacy). The same happened this year with the Schrems case which deals with a similar situation (even if referred to a third country). Quite surprisingly the Council Presidency does not make reference to this ruling even if , according some doctrine (see the Martin Scheinin position published here)  it contain already an answer to the first question. According to Martin Scheinin the Court by referring to Article 7 of the Charter makes clear that:  In particular, legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter…

When the “essence” itself of a fundamental right is threatened, according to art.52 of the Charter is no more question of verify the “proportionality” of this kind of measures as they would be per se against the Charter (and the Treaty)

Let’s see what will be the MS (and judiciary) reaction and if they will take this occasion to re-examine some wide ranging legislative proposals which foresee a generalised collection of personal data (PNR, Entry-exit systems, not to speak of the monthly bulk transmission of EU citizens personal data to the US administration within the EU-USA TFTP (“SWIFT”) agreement…).

EDC

 

DOC  14246/15 24 November 2015 NOTE
From:Presidency
To:Permanent Representatives Committee/Council
No. prev. doc.:14369, 13085/15, 11747/1/15 REV 1
Subject: Retention of electronic communication data – General debate

1. The invalidation of the Data Retention Directive 1 by the Court of Justice of the EU 2on the grounds that it disproportionately restricted the rights to privacy and to the protection of personal data, has given rise to questions in the Member States, in particular as regards national transposition legislation and the availability of electronic communication data collected for access by law enforcement authorities and their use as evidence in criminal proceedings.

2. Member States had been given a wide margin of discretion in the implementation of the Data Retention Directive. This lead to considerable differences in the national legal frameworks3, which are compounded by the varying consequences of the assessment of the national data retention schemes by national parliaments and courts, especially in view of the Data Retention Judgement and the pending “Tele2” case 4.

3. The Data Retention Judgement has not directly affected national implementing legislations of the Data Retention Directive and these remain valid until amended, or repealed by national parliaments, or invalidated by national courts, provided that they comply with Articles 7 and 8 of the Charter of Fundamental Rights of the EU. Member States thus find themselves in a situation where they no longer have an obligation deriving from a specific Union legal instrument to introduce or maintain a national data retention regime providing for the mandatory storage of electronic communication data by providers for the purposes of detecting, investigating, and prosecuting serious crime. However, Member States retain the possibility to do so under Article 15(1) of the “E-privacy Directive” 5.

4. Opinions diverge on the interpretation of the Court’s judgement and thus on the legality of schemes for retaining bulk electronic communication data without specific reason. This has inter alia resulted in a large variety of situations at national level6. Some Member States have already adopted or are in a process of preparing new legislation on data retention, that, according to the information received by delegations, aims at ensuring strengthened procedural guarantees and safeguards in compliance with the Charter and in line with the ruling of the Court (EE, ES, IE, LT, LU, LV, MT, PL), including some Member States where the national law has been invalidated by the constitutional Court (DE, BG, NL).

5.Eurojust’s analysis of the current situation7 and expert debates held during the Luxembourg Presidency8 highlight that this fragmentation of the legal framework on data retention across the Union has an impact on the effectiveness of criminal investigations and prosecutions at national level, in particular in terms of reliability and admissibility of evidence to the courts based on the collection of electronic communication data, as well as on cross-border judicial cooperation between Member States and internationally.

6 In view of these challenges and the legal, procedural and practical problems they pose for investigations and prosecutions of all kinds of crime, not in the least in relation to counter-terrorism, the Presidency invites Ministers to address the following questions:

  • Is the Data Retention Judgement to be interpreted in the sense that retaining bulk electronic communication data without specific reason is still allowed ?
  • Considering the current fragmented situation throughout the Union, and the consequences it entails, should an EU-wide response be considered or should it be up to individual Member States to address the issue ?
  • Should the Commission be invited to present a new legislative initiative and if yes in what timeframe ?

 

NOTES

1        Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC
3        It is recalled that the transposition did not go easily in certain Member States, as a number of national constitutional courts annulled the national transposition laws for being contrary to the Constitution or the European Convention on Human Rights and certain national parliaments raised serious concerns.
2        Judgement of the Court of justice of the European Union (CJEU) (Grand Chamber) “Digital Rights Ireland and Seitlinger and others” of 8 April 2015 in joined Cases C-293/12 and C-594/12
4        The CJEU currently examines a preliminary ruling (pending Case C-203/15, lodged on 4 May 2015, Tele2 Sverige AB v. Post-och telestyrelsen ) on the compatibility of a national legislation (Swedish law in this case) to retain traffic data covering all persons, all means of electronic communication and all traffic data for the purpose of combating crime, with Article 15(1) of Directive 2002/58/EC (the e-privacy Directive), taking account of Articles 7, 8 and 15(1) of the Charter.
5        Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector
6        The current state of play is as follows: the transposition law of the Data Retention Directive has been invalidated in at least 11 Member States (AT, BE, BG, DE, LT, NL, PL, RO, SI, SK, UK). Amongst these, 9 countries have had the law invalidated by the Constitutional Court (AT, BE, BG, DE, SI, NL, PL, RO, SK). In 15 Member States (CY, CZ, DK, EE, ES, FI, FR, HR, HU, IE, LU, LV, MT, PT, SE) the domestic law on data retention remains in force, while they are still processing communication data.
7        Doc. 13085/15 and 13689/15
8        Doc. 11747/1/15 REV 1

After Paris : Justice and Home affairs Council draft Conclusions

ORIGINAL DOCUMENT ACCESSIBLE ON STATEWATCH SITE

(NOTA BENE : Comments will follow on the text finally adopted) 

Draft Conclusions of the Council of the EU and of the Member States meeting within the Council on Counter-Terrorism

  1. The Council is appalled by the heinous terrorist attacks which took place in Paris on 13 November 2015 and expresses its deepest condolences to the victims of these attacks, their families and friends. The Council emphasises its solidarity with the people of France and pays tribute to the courage and decisive actions of the French authorities. The attacks were an assault on the European values of freedom, democracy, human rights and the rule of law. This is not the first time that the EU has been confronted with a major terrorist attack and important measures have already been taken. The Council underlines the importance of accelerating the implementation of all areas covered by the statement on counter-terrorism issued by the Members of the European Council of 12 February 2015 and in particular of the measures outlined below.

PNR

  1. The Council reiterates the urgency and priority to finalise an ambitious EU PNR before the end of 2015, which should include internal flights in its scope, provide for a sufficiently long data period during which PNR data can be retained in non-masked out form and should not be limited to crimes with a transnational nature.

Firearms

  1. The Council:
  • welcomes the adoption of the Implementing Regulation on common deactivation standards on 18 November 2015,
  • welcomes the presentation by the Commission on 18 November 2015 of a proposal to revise the current Directive on Firearms,
  • is committed to increasing operational cooperation through Europol under the EU Policy Cycle on serious and organised crime, notably within the Operational Action Plan Firearms. All Member States affected by the problem are invited to join these efforts by the end of 2015,
  • invites Frontex and Europol to assist the Member States bordering the Western Balkans region with regard to increasing controls of external borders to detect smuggling of firearms.

Strengthening controls of external borders

4. Member States undertake to:

  • implement immediately the necessary systematic and coordinated checks at external borders, including on individuals enjoying the right of free movement,
    • on the bases of a quick identification of urgent needs and possible solutions, to be performed by the Commission before the end of 2015, upgrade the Member States border control systems (electronic connection to the relevant Interpol databases at all external border crossing points, automatic screening of travel documents) by March 2016,
    • in the context of the current migratory crisis, carry out a systematic registration, including fingerprinting, of all migrants entering into the Schengen area and perform systematic security checks by using relevant databases in particular SIS II, Interpol SLTD database, VIS and national police databases, with the support of Frontex and Europol, and ensure that hotspots are equipped with the relevant technology. Europol will deploy guest officers to the hotspots in support of the screening process, in particular by reinforcing secondary security controls,
    • strengthen the control at the external borders which are most exposed, in particular by deploying rapid border intervention teams (RABITs) and police officers in order to guarantee systematic screening and security checks.
    1. The Council reiterates its Conclusions of 9 November 2015 and invites the Commission to:
    • include EU nationals in the upcoming Smart Borders proposals and in this context present a proposal for the targeted revision of Art.7(2) Schengen Borders Code regarding systematic controls against relevant databases at EU external borders,
    • provide, in its proposal to update the Frontex Regulation, a solid legal basis for the contribution of Frontex to the fight against terrorism and organised crime and access to the relevant databases.
    1. Frontex will:
    • contribute to the fight against terrorism and support the coordinated implementation of the Common Risk Indicators (CRIs) before the end of 2015,
    • assist the Member States to tighten controls of external borders to detect suspicious travels of foreign terrorist fighters and smuggling of firearms, in cooperation with Europol,
    • work closely with Europol and Eurojust, in particular in the context of the hotspots, and exchange data with Europol on the basis of the cooperation agreement to exchange personal data. The latter should be concluded and become operational without delay.

    Information sharing

    7. The Council decides to step up law enforcement cooperation on counter-terrorism (CT):

    • Member States will instruct national authorities to enter data on all suspected foreign terrorist fighters into the SIS II under Article 36.3, carry out awareness raising and training on the use of the SIS and define a common approach to the use of the SIS II data relating to foreign fighters,
    • Europol will launch the European Counter Terrorist Centre (ECTC) on 1 January 2016 as a platform by which Member States can increase information sharing and operational coordination with regard to the monitoring and investigation of foreign terrorist fighters, the trafficking of illegal firearms and terrorist financing. The ECTC will provide national CT authorities with enhanced information sharing capacities notably via Focal Point Travellers, the Europol Information System and Europol’s SIENA system reserved for counter-terrorism cases. The new Europol Regulation, on which an agreement should be reached between the co-legislators before the end of the year, should be consistent with the mandate and objectives of the ECTC, including the IRU,
    • Member States will second CT experts to the ECTC to form an enhanced cross-border investigation support unit, capable of providing quick and comprehensive support to the investigation of major terrorist incidents in the EU. Eurojust should also participate,
    • The Commission is invited to ensure that Europol is reinforced with the necessary resources to support ECTC and to submit a legislative proposal in order to enable Europol to systematically cross-check the Europol databases against the SIS II as established by Council Decision 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System (SIS II),
    • Member States will make maximum use of these capabilities to improve the overall level of information exchange between CT authorities in the EU. Member States will instruct the relevant national authorities to further increase their contributions to Focal Point Traveller at Europol to reflect the threat and connect to relevant Europol information exchange systems.

     
    Terrorist financing

    1. The Council invites the Commission to present proposals to strengthen, harmonise and improve cooperation between Financial Intelligence Units (FIU’s), notably through the proper embedment of the FIU.net network for information exchange in Europol and ensure their fast access to necessary information, in order to enhance the effectiveness and efficiency of the fight against money laundering and terrorist financing in conformity with Financial Action Task Force (FATF) recommendations, to implement more quickly the asset freezing required by the UN Security Council (Resolution 1373), to strengthen controls of non-banking payment methods such as electronic/anonymous payments and virtual currencies and transfers of gold, precious metals, by pre-paid cards and to curb more effectively the illicit trade in cultural goods.

     Criminal justice response to terrorism and violent extremism

     9. The Council welcomes the signing in Riga on 22 October 2015 by the EU of the Council of Europe’s Convention on the Prevention of terrorism and of its additional Protocol on Foreign Terrorist Fighters and invites the Commission to present a proposal for a directive updating the Framework Decision on Combating Terrorism before the end of 2015 with a view to collectively implementing into EU law UNSC Resolution 2178 (2014) and the additional Protocol to the Council of Europe’s Convention.

     10. Member States will use ECRIS at its full potential. The Council invites the Commission to submit by January 2016 a proposal for the extension of ECRIS to cover third country nationals.

     11. The Council invites the Commission to allocate as a matter of urgency the necessary financial resources to implement the Council Conclusions on enhancing the criminal justice response to radicalisation leading to terrorism and violent extremism. This should notably support the development of rehabilitation programmes as well as risk assessment tools in order to determine the most appropriate criminal justice response, taking into account the individual circumstances and security and public safety concerns.

     Funding

    1. The Council invites Member States to use the Internal Security Fund to support the implementation of these conclusions and to prioritise relevant actions under the national programmes to this effect, and calls on the Commission to prioritise the funding available under centrally managed funds to the priorities identified in these conclusions.

    Implementation

    1. In view of its role on strengthening internal security within the Union, COSI shall coordinate the role of the various Council Working Parties and of the EU agencies in the implementation of these Council Conclusions. The Counter Terrorism Coordinator will monitor their implementation.