Category: 3. Fundamental rights – Charter

The surveillance society (4): a further study for the European Parliament

Following the so called “Snowden revelations” at the end of the last legislature the European Parliament adopted a wide ranging resolution addressing the main problems arising from an emerging surveillance society.  The resolution adopted inter alia “A European Digital Habeas Corpus” deemed to  protect  fundamental rights in a digital age.

Work on this sensitive issue is continuing also in this legislature as the European Parliament has to play a pivotal role in the establishment of the European Digital Agenda, the reform of data protection and to approve an “umbrella” agreement with the United States which is deemed to cover also the access to personal data for security purposes.

To support this Parliamentary strategy several studies have been done the last of them being a study done by the EP “Scientific and Technology Options Assessment “(STOA) which was presented in the responsible Parliamentary Committee (LIBE) Meeting on 23 April 2015.

The aim of the study is to propose measures to reduce the risks identified with the current generation of networks and services and to identify long-term technology oriented policy options for a better, more secure and more privacy friendly internet, whilst at the same time allowing governmental law enforcement and security agencies to perform their duties, and obtain quickly and legally all the information needed to fight crime and to protect national security interests.

The first part of the study concludes with a list of security solutions to help citizens protect themselves from illicit mass surveillance activities. In its Conclusions it recognise that “Mass surveillance is a reality today and has been applied for years by national intelligence agencies of a number of countries, namely those allied in the Five Eyes coalition, but also including EU members and other countries. The agencies involved in mass surveillance practices justify these methods with the doctrine of pre-emptive prevention of crime and terrorism and adopt the principle of omniscience as its core purpose. This objective of intercepting all communication taking place over Internet or telephone networks is in many cases pursued by applying questionable, if not outright illegal intrusions in IT and Telecommunication systems.This strategy accumulates an amount of information that can only be processed and analysed by systems of artificial intelligence, able to discern patterns which indicate illegal, criminal, or terrorist activities. While warranted and lawful interception of data on targeted suspects is a required and undisputed tool for law enforcement to access evidence, the generalised approach of information gathering through mass surveillance is violating the right to privacy and freedom of speech. The delegation of decisions on suspicious data patterns or behaviour of citizens to intelligent computer systems is furthermore preventing accountability and creating the menace of an Orwellian surveillance society. Many citizens are not aware of the threats they may be subject to when using the Internet or telecommunication devices. As of today, the only way for citizens to counteract surveillance and prevent breach of privacy consists in guaranteeing uncorrupted end-to-end encryption of content and transport channel in all their communications. Due to the amount/complexity/heterogeneity of tools this is however a task too complex to achieve for most of technically unexperienced user. This situation calls for both, awareness creation and the provision of integrated, user friendly and easy to use solutions that guarantee privacy and security of their communications. But policy makers must understand that the problem of mass surveillance can not be solved on a technical terrain, but needs to be addressed on a political level. An adequate balance between civil liberties and legitimate national security interests has to be found, based on a public discussion that empowers citizens to decide upon their civil rights affected and the societal values at stake”.

The second part of the study concludes with the proposal of several policy options with different levels of public intervention and technological disruption.

A STOA options brief below provides  an overview of all the policy options and  Two short Video-Clips  have been published on YouTube to raise the awareness of the public.

Further information

 

Victor Orban, la peine de mort et l’engagement européen de la Hongrie : noces d’étain ou mariage blanc ?

Original published HERE

By Simon LABAYLE

8 MAI 2015 CERIC

Mariage d’amour, mariage d’argent… L’Union européenne a vu se marier toutes sortes de partenaires. Des noces enthousiastes, lorsque la Grèce, le Portugal ou l’Espagne rejoignaient les démocraties déjà membres des Communautés au nom de démocraties au nom de la promotion de l’Etat de droit. Des mariages de raison, lorsque la Suède ou le Danemark la rejoignaient sans ferveur, en cédant à des impératifs essentiellement économiques. Les différentes vagues d’élargissement qui ont façonné le visage de l’Union contemporaine n’ont donc pas provoqué une liesse comparable. Chacune d’entre elle révélait pourtant la volonté de s’unir à ses voisins européens.

L’histoire politique et juridique de l’Union européenne appelle cependant aujourd’hui à réfléchir au sens comme à la force de cet engagement. Un nouvel épisode tiré de la relation tourmentée qu’entretiennent la Hongrie et l’Union sert ici de toile de fond à une réflexion plus globale. On sait en effet les crises qui troublent régulièrement leurs rapports depuis l’investiture de Viktor Orban en tant que Premier ministre suite aux élections législatives d’avril 2010. La dernière en date relance un débat que l’on pensait clos sur la peine de mort.

1. L’Union européenne et la peine de mort

Il convient, avant toute autre chose, de rappeler que la peine de mort est expressément proscrite par le droit de l’Union européenne. L’article 2 de la Charte des droits fondamentaux ne laisse planer aucune ambigüité : « 1. Toute personne a droit à la vie. 2. Nul ne peut être condamné à la peine de mort, ni exécuté ». L’article 19 de la Charte précise d’ailleurs même que « Nul ne peut être éloigné, expulsé ou extradé vers un État où il existe un risque sérieux qu’il soit soumis à la peine de mort, à la torture ou à d’autres peines ou traitements inhumains ou dégradants ». Ce rappel d’une jurisprudence connue de la CourEDH constitue donc un indicateur non négligeable du statut particulier dont jouit cette interdiction au sein de l’Union.

Parallèlement, et au-delà du droit primaire, l’Union européenne a également adopté des orientations contre la peine de mort en 1998, révisées en 2008 et 2013, selon lesquelles «  l’UE considère que l’abolition de la peine de mort contribue au renforcement de la dignité humaine et au développement progressif des droits de l’homme … », tandis que ses principales personnalités politiques multiplient les déclarations en ce sens avec une régularité métronomique. Les présidents Van Rompuy et Barroso l’ont par exemple rappelé à l’occasion du discours le plus symbolique qu’ils prononcèrent au cours de leurs mandats respectifs : celui de leur acceptation du prix Nobel de la paix prononcé le 11 décembre 2012. Plus récemment, en toute logique, l’actuel Président du Conseil européen Donald Tusk a également dénoncé la condamnation à mort médiatisée du ressortissant français Serge Atlaoui par l’Indonésie.

L’Union européenne ne se borne donc pas à proscrire la peine de mort sur son sol. Elle a engagé un véritable combat à son encontre et elle s’impose même comme le premier donateur mondial dans la lutte contre la peine capitale. Cette interdiction dessine donc l’un des marqueurs symboliques de l’identité de l’Union. Il est bon de rappeler aussi que la peine de mort est parallèlement proscrite dans les 47 Etats membres du Conseil de l’Europe, que les articles 2 et 3 de la Convention européenne des droits de l’homme ont été interprétés par la Cour européenne des droits de l’homme comme interdisant celle-ci en toutes circonstances (arrêt Al Saadoon et Mufdhi c. Royaume Uni du 2 mars 2010, § 120), tandis que deux protocoles de la Convention prévoient son abolition (Protocoles 6 et 13). Individuellement, les Etats membres de l’Union sont donc liés par cette obligation, la Hongrie y compris. Il n’est donc nul besoin de démontrer que cette lutte constitue un pivot essentiel de la singularité européenne sur la scène internationale. Ce que Viktor Orban ne pouvait évidemment ignorer.

2. Une nouvelle « affaire » hongroise ?

Continue reading “Victor Orban, la peine de mort et l’engagement européen de la Hongrie : noces d’étain ou mariage blanc ?”

The surveillance society (3) by David COLE

Original published on TIME 

NSA Ruling Is a Victory for Privacy

By David COLE (*)

Renew the NSA’s authority — but only if it is significantly reined in

In a major victory for privacy and democracy, the U.S. Court of Appeals for the Second Circuit ruled today that the National Security Agency has been illegally collecting information about Americans’ phone calls—all Americans’ phone calls—for at least nine years. In the name of fighting terror, the agency has been collecting records on all of us—who we call, when we call, and how long we talk, although not the contents of the calls—without regard to whether we are connected to terrorism. The court unanimously ruled that the NSA’s massive “phone metadata” program, first revealed by Edward Snowden in June 2013, is not authorized by the statute the NSA has long relied on to conduct the program. Congress is currently considering whether to renew, reform, or let the provision expire. Today’s ruling should inform Congress’s debate, and supports renewing the NSA’s authority only if it is significantly reined in.

The court’s decision turned on the meaning of Section 215 of the USA Patriot Act, passed shortly after 9/11. It authorizes the government to obtain records from businesses if they are “relevant” to an “authorized investigation … of international terrorism.” This language would plainly enable the NSA to obtain the phone calling records, for example, of a suspected terrorist, or of persons closely connected to him. But in a secret interpretation allowed by a secret intelligence court in 2006, the NSA asserted that this provision empowered it to obtain the phone records of every American, regardless of whether they were in any way connected to terrorism. It’s that interpretation that the U.S. Court of Appeals wisely rejected today.

The NSA argued that every American’s records were “relevant” and therefore subject to collection because at some point in the future they might come in handy to a terrorism investigation. But as the court of appeals reasoned, that theory is limitless. It would authorize the NSA to collect all business records about everyone—including financial records, medical records, and email and internet search records—without any showing of an actual tie to terrorism.

The court of appeals is not the first to find the NSA’s interpretation a stretch. When Representative Jim Sensenbrenner, a Wisconsin Republican who drafted the Patriot Act provision in question, learned of the NSA’s interpretation, he said that he never intended it to authorize such “dragnet collection” of information on innocent Americans. The Privacy and Civil Liberties Oversight Board, a government oversight body created by Congress and appointed by the president, concluded in January 2014 that Section 215 did not authorize the NSA’s program.

But the unanimous decision of the federal court of appeals has the force of law. More important, its opinion makes eminent sense, underscoring that when Congress gives the executive authority to obtain information only where it is relevant to a specific investigation, the NSA should not secretly expand that to collect records on us all.

The court’s timely decision comes as Congress is considering what to do about Section 215. A bipartisan group of members, including Senators Pat Leahy and Mike Lee, and Representatives Sensenbrenner and John Conyers, has introduced the USA Freedom Act, which would end the NSA’s bulk collection authority, and allow it to seek phone records only when reasonably connected to specific identifiers or “selectors” tied to terrorism. Senator Mitch McConnell, by contrast, has proposed a bill that would reauthorize Section 215 with no reforms whatsoever.

Congress should be guided by the federal appeals court’s careful reasoning. As the court found, the authority asserted and exercised by the NSA was entirely unprecedented. It goes far beyond any preexisting authority to obtain records in any other investigative context. Digital technology makes this possible; the government can now track us in ways that until very recently were simply impossible. But just because it can do so doesn’t make it right to do so. If we are to preserve our privacy in the digital age, we must confront that reality and insist that the government’s new spying technologies be appropriately constrained.

Congress should pass the USA Freedom Act. But doing so will by no means be sufficient. Snowden revealed a wide range of NSA spy programs that intrude on the privacy rights of innocent Americans and non-Americans alike. The USA Freedom Act deals only with one such program. But the court of appeals, and the USA Freedom Act, point the way forward in a more general way. If we are to rein in the NSA, we must insist first that there be public debate before the government institutes sweeping new surveillance programs, and we must demand, second, that surveillance be targeted at individuals as to whom there is suspicion of wrongdoing, and not applied indiscriminately to us all.

 (*) George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center.

The Surveillance society (2) by Jens-Henrik JEPPESEN

Controversial French Surveillance Regulation Should Re-Ignite EU Debate on Surveillance Reform

Original Published HERE

by 

As has been widely reported in the press, France is moving ahead with new legislation to enable expanded electronic surveillance. As expected, the surveillance bill, the Projet de Loi Relatif au Renseignement, was passed by Members of the French National Assembly by an overwhelming majority on May 5, sparking a fresh round of heated debate.  The legislation will now move to France’s other parliamentary house, the Senate.

The bill is so excessive that we believe it could, and should, lead to a renewed debate on surveillance reform across Europe..

A wide range of French civil society groups, lawyers, and technology industry groups have voiced strong opposition to the bill from its inception. Some have even dubbed the law a French Patriot Act, and the expanded powers found in the legislation would in fact pose a serious threat to human rights in France.  Indeed, the bill is so excessive that we believe it could, and should, lead to a renewed debate on surveillance reform across Europe.   We have long believed that action at the EU level is critical to protecting human rights in the surveillance context, and the French bill shows that this need is more urgent than ever.

According to an analysis by one of the main opponents of the bill, the French digital rights group La Quadrature du Net, the draft bill was introduced by Prime Minister Valls with the ostensible goal of providing a clear legal framework for intelligence gathering that respects fundamental rights. In reality, however, the law expands the scope of permissible electronic surveillance and legalizes a range of highly problematic monitoring techniques that can be extended for potentially indefinite periods and are subject only to relatively weak oversight.  This creates a range of serious civil liberties concerns.

One issue is the widespread use of privacy-invasive surveillance technology. The law would authorize government officials to compel telecommunications service providers to install so-called “black boxes” to monitor the metadata of users’ personal communications for suspicious patterns or behavior, based on automated analysis and algorithms. No judicial review, or judicial warrant, would be required for such surveillance.  Additionally, although the data would initially be analyzed on an anonymous basis (and would not include the content of messages), the authorities would have the power to lift this anonymity for at least some individual users if they believe the patterns show a terrorist threat.  Some experts have already begun to highlight the risk of false positives as well as the technical flaws in the idea of “anonymous” data that can be “de-anonymized”. These practices show that the French interior minister’s claim that the bill is “not aimed at installing generalized surveillance” in France is flat wrong.

Another problem is the broad objectives for which the surveillance techniques foreseen in the bill can be used. The bill uses wording such as “essential foreign policy interests,” “international commitments,” “essential economic or scientific interests,” and “collective violence that could cause serious harm to the public peace.” This is in addition to protecting national security and fighting terrorism and organized crime. With such a vaguely defined and broad scope of application, the surveillance measures authorized by the bill could be brought to bear in a very wide set of contexts and cover large sections of society.

Now would be an excellent time to open a proper European debate on what sort of surveillance may be justified, and what proper oversight of surveillance programs looks like…

Furthermore, the bill creates a set of separate rules on “communications sent or received abroad.” LQDN’s analysis shows that interception, collection, retention, and use of such communications by the intelligence services would not be covered by any of the usual privacy protections found in French law. The rules on this data would be set out in a classified decree to be adopted sometime in the future.

Now would be an excellent time to open a proper European debate on what sort of surveillance may be justified, and what proper oversight of surveillance programs looks like. We are conscious of the limits on the authority of the EU institutions in matters of national security. However, the EU Member States have clear and inescapable obligations under EU law as well as the European Convention on Human Rights to conduct their surveillance activities in strict accordance with privacy and other fundamental rights.   Neither France nor any other Member State can ignore those obligations, including by passing laws as excessive as the one the French Parliament is currently considering.  These pressing issues need to be debated, and any country that overreaches must be held to account.

Thus far, the European Member States have been reluctant to engage in such a debate on their own initiative. Therefore, it would be appropriate for both the European Parliament and the European Commission to take the lead in getting that debate going.

The Surveillance Society (1) by Emilio Mordini

Original published HERE

By Emilio MORDINI

Today (May 7) a US federal appeals court has ruled the phone metadata program of the National Security Agency’s (NSA) is illegal. Metadata is ancillary details generated by a piece of information.  Telephone metadata includes details  such as the length of a call, the phone number from which the call was made, the phone number called,  the telephone devices used, the location of the call, and so. Telephone metadata do not include voice recording and call contents. In 2014 Stanford computer scientist and lawyer, Jonathan Mayer, demonstrated that from phone metadata it is possible to draw very sensitive inferences, such as details about an individual’s familial, political, professional, religious, and sexual life.  Mayer demonstrated that metadata are highly meaningful even in a small population and over a short time period.

The NSA’s telephone metadata program, which started seven months before the September 11, 2001, collected metadata of hundreds of billions of telephone calls made along several years through the largest telephone carriers in the United States. In 2006, the existence of the NSA program was brought to the light by USA TODAY. However, it was only on June 5, 2013 that The Guardian published a top-secret document, which provided the conclusive evidence that the NSA collected phone metadata from hundreds of millions of phone subscribers.  Such a document was included in NSA classified files leaked by Edward Snowden.

On June 11, 2013, the American Civil Liberties Union (ACLU) filed a lawsuit against the NSA, challenging the legality and constitutionality of the phone metadata program. On Dec 16, 2013 the District Court for Southern District of New York ruled the phone metadata program was legal and does not violate the Fourth Amendment (on August 29, 2013, the Foreign Intelligence Surveillance Court had already stated that phone metadata: “is not protected by the Fourth Amendment, since the content of the calls is not accessed”). The ACLU appealed against this decision. Now the court of appeals has definitely ruled that phone metadata program is illegal, because it “exceeds the scope of what Congress has authorized and therefore violates § 215” of the Patriot Act.  Ruling the illegality of the program, the court avoided taking a stance about its constitutionality.  However, what is interesting is the court’s main argument, say, the Patriot Act § 215 provides the legal framework for investigation, but not for a generic threat assessment. Investigation – argues the court – is an activity that entails “both a reason to conduct the inquiry and an articulable connection between the particular inquiry being made and the information being sought. The telephone metadata program, by contrast, seeks to compile data in advance of the need to conduct any inquiry (or even to examine the data), and is based on no evidence of any current connection between the data being sought and any existing inquiry”. Why is this argument intriguing? Because it implies a counter-intuitive explanation of surveillance policies.

Why so many governments and rulers are passionate of surveillance technologies? Because they want to know everything about us, the standard account goes. No, the court tells us; they spy because they do not have any inquiry to do, any explanation to test, any investigation to carry out. Briefly, because they do not know,  are not able to know, and do not want to know. They do not understand the world and its conflicts, they do not have interpretation grids, they cannot figure out  the future. They are just “walking shadows, poor players that strut and fret their hour upon the stage”. They spy just for spying, because of their political emptiness, because of their intellectual laziness. Surveillance is for them the obscene surrogate for knowledge. Understanding is precluded by their shortsighted view; modern, sophisticated, technologies become a surrogate for intelligence.

Today, privacy advocates are celebrating, yet this sentence makes justice also of some of their paranoid fantasies. The surveillance society is not ruled by the big brother, rather by an idiot Peeping Tom.

FACT-CHECKING NIGEL FARAGE: WILL THE EU’S ASYLUM POLICIES ADMIT HALF A MILLION TERRORISTS?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party, argued that the EU’s response to the migrant deaths crisis ran the risk of admitting half a million terrorists on to EU soil. He based this claim on the threat of the ‘Islamic State’ (Daesh) terrorists to send such killers to the EU via means of smuggling routes, and demanded that David Cameron veto the EU plans.

Do these claims make sense? Not in the slightest. First of all, the EU policy, as I discussed last week, is essentially to reaffirm the status quo. The current limited maritime surveillance missions will be expanded, although it is not clear if they will amount to fully-fledged rescue missions. This probably means that more people will reach the EU, but this will only be for the reason that fewer of them will drown en route. Once in the EU, they will be able to make claims for asylum – but that is no different to the current law. The EU’s plan does not involve any changes to EU asylum legislation; it simply calls on Member States to apply those laws. The EU did commit to some form of direct resettlement of refugees from third countries – but EU leaders could not even agree on the tiny number of 5,000 refugees to be settled next year.

Farage would prefer a policy of returning people to the countries they left. In fact, asylum-seekers can already be returned to their countries of origin or transit, if it is clear when examining their application that those countries are safe. But in accordance with the UN (Geneva) Refugee Convention – which UKIP purports to support – they cannot be returned to an unsafe country. Libya, for instance, is clearly unsafe: there are widespread whippings, beatings, electric shocks and hangings of migrants. In any event, asylum-seekers who prove to be terrorists must be denied refugee status or other forms of protection status, as the CJEU has confirmed.

Farage demands that David Cameron veto the EU’s plans, but that simply isn’t possible, because the UK has an opt-out from EU asylum and immigration law. We can choose not to participate, and indeed the UK has already chosen not to participate in any of the second phase EU asylum measures, except for those which transfer asylum-seekers from the UK to other Member States. We can choose not to participate in any future measures too – although as noted already, the EU is not even planning any new asylum laws in response to the deaths. Since the UK has an opt-out, it does not have a veto. But in fact, no Member State has a veto on EU asylum policy. Most EU immigration and asylum law has in fact been subject to qualified majority voting since 2005. (Laws on legal migration were subject to unanimous voting until 2009; but the EU’s plan does not address legal migration issues).

As regards border control operations in particular, the UK doesn’t participate fully in the EU’s border control agency, Frontex. In fact, according to the EU Court of Justice, legally we can’t participate in Frontex, since we don’t participate in the full Schengen system of abolishing internal border controls. Instead we have an informal arrangement, for instance supplying some hardware to assist with the expanded surveillance operations. But even that sort of informal arrangement is under challenge in a case pending before the CJEU.

In some ways, Farage’s own policy runs its own risks. He has argued that Christians in particular should be admitted as refugees into the EU. As I have pointed out, this again violates the Geneva Convention that UKIP purport to support, since that Convention requires non-discriminatory application on grounds of religion, and it would also be unfeasible to distinguish between Christians and Muslims during rescue at sea. But if Christians are being resettled directly from areas afflicted by Daesh, the UKIP policy would provide the perfect opportunity for ISIS fighters to pretend to be Christian as a way to ensure entry into the EU.

As an assessment of terrorist methodology, Farage’s claims are also suspect. The bulk of Daesh atrocities have not been carried out in the EU, but in Syria and Iraq, as well as by affiliated groups in Libya and Nigeria. Most of the people who have been linked to Daesh in Europe have been EU citizens who travelled to parts of the Middle East to participate in atrocities. Any migrants who were rescued from boats or who were resettled directly from conflict areas would presumably be disarmed of any weapons they were carrying en route. Of course, they might obtain weapons once they reached the EU; but since Farage is an outspoken critic of gun control, he is part of the problem, not of the solution, to that issue. As for the figure of half a million Daesh fighters coming to the EU, that’s 20 or 30 times the CIA’s estimate of the total number of all Daesh fighters.

Finally, Farage argues that the EU has cynically used the migrant deaths crisis to develop a comprehensive immigration and asylum policy. If only it had: in fact, the EU’s response is largely marginal and ineffectual. Indeed, Farage is throwing some huge stones inside this glass house. It is Farage who is trying to ‘weaponise’ the tragic deaths of hundreds of people, taking this opportunity to make an inaccurate and incoherent rant in the midst of an election campaign.

THE CJEU WASHES ITS HANDS OF MEMBER STATES’ FINGERPRINT RETENTION (JOINED CASES C-446/12 – 449/12 WILLEMS)

ORIGINAL PUBLISHED ON EU LAW BLOG

by

When is the Charter of Fundamental Rights of the EU applicable to a Member State measure? In C-446/12 – 449/12 Willems the CJEU held that a Member State which stores and uses fingerprint data, originally collected in compliance with Regulation No 2252/2004, but which the Member State then uses for purposes other than those stipulated in the Regulation, is not acting within the scope of EU law, and therefore is not bound by the Charter. This case appears to indicate a retreat by the Court from the expansive interpretation of the scope of application of the Charter which it had previously laid down in C-617/10 Fransson.

Facts and judgment

Council Regulation No 2252/2004/EC requires Member States to collect and store biometric data, including fingerprints, in the storage medium of passports and other travel documents, and require that such data be used for verifying the authenticity of the document or the identity of the holder. Spain introduced measures requiring the collection and retention of the fingerprint data for use in connection with travel documents. However, those national measures also provide that such data can be kept in a central register, and used for other purposes (such as national security, prevention of crime and identification of disaster victims). The applicants made passport applications, but refused to provide the fingerprint data. They argued, inter alia, that the storage and further use of those data breached their fundamental rights under Article 7 and 8 of the Charter of Fundamental Rights of the EU. The national court referred two questions for preliminary ruling.

The first question concerned the applicability of the Regulation to national identity cards. The Court held that the Regulation did not apply to such cards. The second question is the one I want to focus on: Does Article 4(3) of the Regulation, read together with Articles 6 and 7 of Directive 95/46/EC  and Articles 7 and 8 of the Charter, require Member States to guarantee that the biometric data collected and stored pursuant to that Regulation will not be collected, processed and used for purposes other than the issue of passports or other travel documents?

The ECJ had already held (in C-291/12 Schwarz) that the collection of those data for the purposes stipulated in the regulation (to verify the authenticity of the passport or the identity of the holder) was compatible with the Charter. The question was whether further processing of those data by the Member State would similarly be compatible.

The Court noted that the Regulation did not provide a legal basis for such further processing – if a Member State were to retain those data for other purposes, it would need to do so in exercise of its own competence (para 47). On the other hand, the Regulation did not require a Member State not to use it for other purposes. From these two observations the Court concluded that the Regulation was not applicable. The Court then cited its famous passage in C-617/10 Franssonwhere it had held that the applicability of EU law entails the applicability of the Charter. As the Regulation was not applicable, the Charter was not applicable either.

The Court then turned to Directive 95/46/EC  (the Data Protection Directive). It merely observed that the referring court requested the interpretation of the Regulation “and only that Regulation”. As the Regulation was not applicable, there was no need to examine whether the Data Protection Directive may affect the national measures.

Comment

I will focus on the question of applicability of the Charter (See Steve Peers comment on the “appalling” reasoning of the Court in respect of the Data Protection Directive). This judgment appears to signal a retreat by the Court from the expansive understanding of the scope of application which was laid down inFransson. It is true that in that case the Court had held that when EU law is not applicable, the Charter is not applicable. But when applying that test to the facts, the Court observed that the national (Swedish) measure was connected (in part) to infringements of the VAT Directive, and therefore was designed to implement an obligation imposed on the Member States by EU law “to impose effective penalties for conduct prejudicial to the financial interests of the European Union”. So inFransson the Court held that national measures which were connected in part to a specific obligation imposed by EU law on the Member State fell within the scope of application of EU law, and therefore of the Charter.

In the present case, the national measures are designed (in part) to implement the obligation imposed on the Member States by the Regulation, to collect and retain fingerprint data. Applying the reasoning in Fransson it would seem to follow that such measures would fall within the scope of EU law – after all, the measures relate to the retention of fingerprints, and the reason the fingerprints need to be retained stems from a specific obligation imposed, by EU law, on Member States: the obligation to collect and store biometric data with a view to issuing passports and travel data, set out in Article 4(3) of the Regulation.

Of course, this case can be distinguished from Fransson. In Fransson the Member State’s measure could be seen as not only stemming from the specific obligation imposed by EU law, but also as furthering the EU purpose of preventing conduct prejudicial to its financial interests. In contrast, in the present case the Member State’s measure is in furtherance of a member state’s purposes, and not an EU purpose.

But such a distinction would seem to entail a very strict approach to what obligations are imposed by EU law. Because the obligation which the Regulation imposes is not just to collect and store date, but also (under Article 4(3) of the Regulation) to ensure that the data are only used to for the specified purposes set out in the Regulation. That obligation was subsequently modified by Recital 5 inRegulation 444/2009, which states that Regulation 2252/2004 is “without prejudice to any other use or storage of these data in accordance with national legislation of Member States.” But is such a Recital sufficient to place the measures concerning those data outside the scope of EU law, or does it merely confer a discretion on states to adopt such measures, provided that they are compatible with EU law? Unfortunately, the reasoning in this judgment does not provide much guidance.

Conclusion

The approach of the Court in Fransson did not meet universal approval, and the judgement of the German Federal Constitutional Court in the Counter-Terrorism Database case may be read as a warning shot across the CJEU’s bows to make sure that the Charter is not applied to Member States’ measures in a way that “question[s] the identity of the [national] constitutional order”.  And by emphasising the autonomy of EU fundamental rights in its recent Opinion 2/13 on the accession to the ECHR, the Court certainly raised the stakes involved in demanding Member State compliance with the Charter. So this case may indicate a desire to ensure that the EU fundamental rights standard is reserved for those Member State measures where it matters most that a EU standard is applied – those matters where the primacy, unity and effectiveness of EU law is at stake.

In effect, this case can be read as tacit acceptance of AG Cruz Villalón in hisOpinion in Fransson, who proposed that the oversight by the Court of the exercise of public authority by the Member States be limited to those cases where there was “a specific interest of the Union in ensuring that that exercise of public authority accords with the interpretation of the fundamental rights by the Union”. However, that Opinion was a well reasoned legal argument. This judgment leaves many questions unanswered, and makes it very difficult to predict when a national measure will fall within the scope of EU law.

Furthermore, this approach sits uneasily with the self-understanding of the EU as a Union based on the rule of law inasmuch as neither Member States nor its institutions can avoid review of the conformity of their acts with fundamental rights (C-402/05 P and C-415/05 P Kadi). Through this Regulation, the EU requires the Member States to collect and store sensitive personal data of all EU citizens who wish to travel; but where the Member States go on to use those data in ways that may breach the fundamental rights of those EU citizens, the Court washes its hands of the matter.

 

 

Terrorisme : La France n’est pas seule concernée mais la France doit aussi se sentir en cause ..

OPINION  (ORIGINAL PUBLISHED HERE)

par Simone GABORIAU 
Présidente de chambre honoraire de la cour d’appel de Paris (Membre du Conseil d’administration de M.ED.E.L).

Apres les attentats des 7, 8, 9 janvier, les plus meurtriers qu’ait connus la France depuis plus de 50 ans (1), après la stupeur, l’émotion et l’union, le temps de la réflexion rationnelle s’impose. Il faut le faire en France et au sein de l’Europe des droits de l’homme mais aussi dans le contexte de l’environnement humanitaire mondial.
Les actes terroristes ne sont pas nouveaux dans l’histoire du monde
Contrairement a bien des idées reçues, le terrorisme n’est pas le fruit du malheur de notre temps mais appartient a une histoire ancienne.
« L’histoire mondial du terrorisme concerne la totalité du monde et ne fait pas de distinction entre continents, aires culturelles et religieuses (2) ».
Du terrorisme interne au terrorisme international, les origines en ont été multiples ; y ont été représentées : toutes les religions, divers courants de pensée, des mouvements irrédentistes, ou de résistance à l’oppression ou de conquête d’indépendance face au colonisateur… Certains groupements ont été héroïses d’autres diabolisés. Certains ont été vaincus par la force ou la répression, d’autres se sont finalement assis a des tables de négociations. Sans oublier de citer le « terrorisme d’Etat » dont l’origine est notamment à « la terreur » de la Révolution française, reprise par la Révolution russe et qui peut s’appliquer à bien des situations de terreur d’Etat qui ont sévi ou sévissent encore dans le monde.

Un terrorisme devenu global

Les attentats du 11 septembre 2001, ont révélé que l’on doit, de plus en plus, faire face à un terrorisme global, en ce qu’il emprunte les moyens de la globalisation technologique et financière pour relier des individus, ou groupes, terroristes, indépendamment de leur base territoriale.
Cette nouvelle dimension a facilité la montée en puissance du terrorisme se revendiquant du radicalisme islamique lequel, actuellement, serait responsable de la majorité du nombre de victimes (3).
Mais il faut se garder, d’interpréter cette situation comme une manifestation du « choc guerrier des civilisations » car ce serait tomber dans le piège tendu par ce terrorisme.

La reconnaissance d’une communauté mondiale de valeurs (4) ?

Ce caractère global a plus que jamais motive la volonté de coopération internationale. Apres l’échec de la SDN, l’ONU peine a l’établir de façon compatible avec la sauvegarde des droits fondamentaux comme l’illustre le système des « listes noires » finalement annulé par la Cour de justice des communautés européennes (5).
Cette communauté de valeurs parait avoir été mieux sauvegardée au niveau européen, a tout le moins, par le rôle des juridictions Cour Européenne des droits de l’homme et Cour de justice des communautés européennes.

La montée en puissance de la reconnaissance des victimes

Dans cette communauté de valeurs, la personne de la victime a pris une place grandissante. L’acte terroriste qui trouvait jusque dans les années 1970-80, bien des gens pour l’excuser ou le légitimer est devenu d’autant plus insupportable qu’il visait des civils définis des lors comme des victimes par excellence (6).
Le discours public en France, et sans doute dans bien des pays, est particulièrement sensible a la prise en compte des victimes. C’est, au reste, un des progrès récent de nos sociétés démocratiques.

Brève, et non exhaustive, analyse de la situation Française Continue reading “Terrorisme : La France n’est pas seule concernée mais la France doit aussi se sentir en cause ..”

The revision of the EU Anti-Money Laundering legal framework is fast approaching..

By Dalila DELORENZI (Free Group trainee)

1.Foreword

Broadly speaking Money laundering means the conversion of the proceeds of criminal activity into apparently clean funds, usually via the financial system  by disguising the sources of the money, changing its form, or moving the funds to a place where they are less likely to attract attention. Terrorist financing is the provision or collection of funds, by any means, directly or indirectly, with the intention that they should be used or in the knowledge that they are to be used in order to carry out terrorist offences. At EU level since 1991 at EU level legislation has been introduced to limit these activities and to protect the integrity and stability of the financial sector and, more in general, of the Internal Market. The EU rules are to a large extent based on Recommendations  adopted by the Financial Action Task Force (FATF) which is an intergovernmental body with 36 members, and with the participation of over 180 countries in the world.

The directive currently into force is the Third Anti-Money Laundering (AML) Directive which applies to the financial sector (credit institutions, financial institutions) as well as to professionals such as lawyers, notaries, accountants, real estate agents, casinos and company service providers. Its scope also encompasses all providers of goods, when payments are made in cash in excess of EUR 15.000. All these addressees are considered “obliged entities”. The Directive requires these obliged entities to identify and verify the identity of customers (so-called customer due diligence, hereinafter ‘CDD’) and beneficial owners, and to monitor the financial transactions of the customers. It then includes obligations to report suspicions of money laundering or terrorist financing to the relevant Financial Intelligence Units (FIUs), as well as other accompanying obligations. The Directive also introduces additional requirements and safeguards (such as the requirement to conduct enhanced customer due diligence) for situations of higher risk.

In force since 2005 the third Money Laundering Directive required a revision against the backdrop of the constantly changing nature of money laundering and terrorist financing threats, facilitated by a constant evolution of technology and of the means at the disposal of criminals. In particular, the recent terrorist attacks in Paris have increased the necessity of decisive actions against terrorist financing and further efforts need to be made in adapting the current framework to a different reality. Therefore in accordance with this purpose, at the international level measures have been taken by the Financial Action Task Force (FATF): a fundamental review of the international standards has been undertaken and a new set of Recommendations have been adopted in February 2012.

In parallel to the international process, the European Commission with a view to complying with the international standards has undertaken its own review of the European Anti-Money Laundering framework. This revision consisted in an external study (the so called Deloitte study) on the application of the Third AMLD (Directive 2005/60/EC) and in extensive contacts and consultations with private stakeholders and civil society organisations, as well as with representatives of EU Member State regulatory and supervisory authorities and Financial Intelligence Units (FIUs).

The results of the Commission’s review were set out in a Report , addressed to EU Parliament and Council, where it was analysed how the different elements of the existing framework have been applied and how it may need to be changed, highlighting the necessity to introduce clarifications or refinements in a number of areas.

More specifically, the main problems in the current EU anti-money laundering/combating terrorist financing legislative framework are: (i) inconsistency with the recently revised international standards; (ii) different interpretation and application of rules across EU Member States; and (iii) inadequacies and loopholes with respect to the new money laundering and terrorist financing risks.

2. The EU Commission’s proposals Continue reading “The revision of the EU Anti-Money Laundering legal framework is fast approaching..”

THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS Wednesday, 22 April 2015

by Steve Peers

On Monday, EU foreign and interior ministers adopted a ten-point plan in response to the recent huge death toll of migrants crossing the Mediterranean. There will be a summit on Thursday to examine the issue further, and then an EU Commission strategy proposed on May 13th. But for now, I want to examine the initial plan.

Overall, this is a very disappointing document. It’s not only vague on crucial details but more importantly focusses less on the situation of the migrants (addressing the root causes which cause them to move, and protection from drowning and persecution) and more on border control and repression. One point in the plan constitutes a rather crass example of ‘policy laundering’ – attempting to use a crisis to shove through an essentially unrelated policy objective.

Let’s look at the ten points of the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians only’ approach which some have suggested. For alternative solutions to the problem, see the proposals of the UN Special Rapporteur on Migrants, the EU’s Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase. Continue reading “THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?”