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

Original Published HERE

Introduction

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

Free Movement Law

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

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

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

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

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

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

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

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

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

S.PEERS Childhood’s End: EU criminal law in 2014

Original Published HERE Monday, 29 December 2014

With the elections to the European Parliament, the installation of a new European Commission, and a number of important legislative and case-law developments, 2014 was an important year for the European Union. This is the first in a series of blog posts reviewing the year in selected fields of EU law.

The most significant change to EU criminal law came on December 1^,when the five-year transitional period relating to EU criminal law measures adopted before the entry into force of the Lisbon Treaty (‘pre-Lisbon EU criminal law measures’, also known in practice as the ‘third pillar’) came to an end. From this date on, pre-Lisbon EU criminal law measures are subject to the normal rules of EU law (except that they maintain their previous limited legal effect, in particular the lack of direct effect). More specifically, this change (discussed generally here) has three main impacts.

Firstly, the UK was entitled to opt out of all pre-Lisbon EU criminal law measures, and then apply to opt back in to some of them again. The UK indeed exercised these possibilities, opting back in to 35 such measures as of 1 December 2014 (see discussion of the details here), following an unnecessarily convoluted process in the House of Commons (discussed here). In a nutshell, since the UK has opted back into a large majority of the pre-Lisbon measures which have any significant importance, the whole process has had barely reduced the UK’s actual degree of participation in EU criminal law.

Secondly, the end of the transitional period means that the EU Commission can now bring infringement actions against Member States that failed to correctly implement pre-Lisbon EU criminal law measures – or that failed to implement such measures at all. The relevance of this is obvious in light of the Commission reports issued this year, regarding: legislation on the transfer of prisoners, probation and parole and supervision orders (discussed here); hate crime and Holocaust denial (discussed here); and conflicts of jurisdiction and the recognition of prior convictions (discussed here).

Thirdly, all courts in all Member States can now send references to the CJEU on the interpretation pre-Lisbon EU criminal law. For the EU as a whole, the impact of this change will probably be limited in practice, because (a) two-thirds of Member States allowed such references anyway, and (b) there were no such limits regarding EU criminal law adopted after the entry into force of the Lisbon Treaty. On the former point, the CJEU decided two cases this spring on the EU’s double jeopardy rules (discussed here), in which it finally developed the relationship between those rules and the double jeopardy provisions of the ECHR and the EU Charter of Fundamental Rights. A final reference to the CJEU on the basis of the old rules, sent just a month before the end of the transitional period (Kossowski), now asks the Court to clarify whether Member States’ derogations from the Schengen rules violate the EU Charter.

On the second point, the first reference from national courts on post-Lisbon EU criminal law was referred this year: the Covaci case, on the Directive on interpretation and translation in criminal law proceedings and the Directive on the ‘letter of rights’. So far, there is no sign of the predicted avalanche of cases on EU suspects’ rights legislation (the deadline to apply the letter of rights Directive passed in June). Of course, there could still be an increase of such cases in future, perhaps after the 2016 deadline to apply the third suspects’ rights Directive (on access to a lawyer). And in the meantime, Member States must apply the victims’ rights Directive towards the end of 2015. Hopefully the CJEU’s case law on that measure will be more convincing than its ruling earlier this year (criticised here) on the scope of the Directive on compensation for crime victims.

Another important CJEU judgment in the criminal law field this year (discussed here) ruled that policing information measure actually fell within the scope of EU transport law. The immediate impact of this judgment was a rush to adopt replacement legislation (the text of which is already agreed), which will apply to all Member States (the UK, Ireland and Denmark had opted out of the prior measure). More broadly, the judgment shows that the CJEU is not inclined to interpret the EU’s criminal law powers broadly – at least as compared to the EU’s other powers.

The end of the transitional period did not lead to a general review of pre-Lisbon EU criminal law measures, with the Commission proposing only a very limited repeal of some obsolete measures (I’ll blog on these proposals in the new year). In particular, the new Justice Commissioner appears to have no significant agenda to suggest criminal law proposals, whether to amend prior measures or to adopt new ones (for an argument as to what the Commission should do, see here).

However, some of the pre-Lisbon criminal law measures have been amended or replaced, or will be amended or replaced by proposed legislation now under discussion. In particular, during 2014, the EU adopted legislation concerning: the European Investigation Order (discussed here); the counterfeiting of the euro (discussed here); the confiscation of criminal assets; and the European Police College (moving its seat from the UK to Hungary). The EU also adopted legislation on criminal sanctions for market abuse (discussed here).

There are also proposals under discussion to replace pre-Lisbon EU criminal law measures concerning: fraud against the EU (see the state of play here); the police agency, Europol (see discussion of negotiations here); the prosecutors’ agency, Eurojust (there was a partial agreement on this proposal); and data protection in criminal law cases (see the state of play here). The latter issue is increasingly important, as indicated by the related CJEU judgment invalidating the data retention directive (discussed here), which gave rise to questions as to whether Member States could adopt or retain their own data retention laws (on this point, see generally here, and here as regards the UK in particular).

In fact, the CJEU will soon be ruling on data protection and criminal law issues as such, since the European Parliament has asked it to rule on the validity of the EU/Canada draft treaty on passenger name records (see discussion here). The pending Europe v Facebookcase (discussed here) raises questions about the impact of the Snowden revelations upon the EU and US arrangements on data protection. In the meantime, the proposed Directiveon passenger name records still remains on ice (having been put there by the European Parliament), with EU leaders’ attempt to set a deadline to adopt this proposal by the end of 2014 proving futile.

Other proposals are also under discussion: a more general overhaul of the European Police College; the creation of a European Public Prosecutors’ Office (see the state of play here); and the adoption of three more suspects’ rights measures, concerning child suspects (agreed by the Council), presumption of innocence (also agreed by the Council) and legal aid (see the state of play here). However, the Commission’s proposal for new rules relating to the EU’s anti-fraud body, OLAF, soon melted in the heat of Council opposition.

Conclusion

Taken as a whole, the year 2014 showed how the European Parliament, the CJEU and the Commission are already playing a significant role in the development of EU criminal law. Following the final demise of the third pillar, the year 2015 is likely to see further important developments in this area, which will make the pre-Lisbon measures even less important: the adoption of new legislation on Europol, the European Police College and possibly Eurojust, as well as revised legislation on fraud against the EU budget.

There will likely be two or three further Directives on suspects’ rights and the victims’ rights Directive will begin to apply. The rules on the new European Public Prosecutors’ Office might also be agreed, and there could be significant developments in the area of data protection. Overall, the longer-term trends toward greater parliamentary and judicial control and greater focus on individual rights in this area accelerated significantly in 2014 and could well do so again next year.

J.P. Jacqué : L’AVIS 2/13 CJUE. Non à l’adhésion à la Convention européenne des droits de l’homme ?

par Jean Paul Jacqué

Original published HERE

L’avis 2/13 de la Cour de justice ne peut manquer de susciter la surprise, voir pour certains la réprobation. Saisie par la Commission de l’accord d’adhésion de l’Union à la Convention européenne des droits de l’homme, la Cour constate que cet accord est incompatible avec les traités. Pour la seconde fois, la Cour de justice bloque la voie de l’adhésion. Dans son avis 2/94, la Cour avait estimé que la Communauté ne disposait pas au titre de l’article 235 CE (aujourd’hui 352 TFUE) de la compétence nécessaire pour adhérer à la Convention. Les implications institutionnelles d’une telle opération exigeaient une révision des traités. Celle-ci fut opérée par le traité de Lisbonne dont l’article 6, paragraphe 2, TUE, impose à l’Union d’adhérer à la Convention. L’adhésion a fait l’objet de longues négociations dans le cadre du Conseil de l’Europe avec les Hautes Parties contractantes à la Convention et l’accord qui résultait de celles-ci a été soumis par la Commission à la Cour de justice en application de l’article 218, paragraphe 11, TFUE, afin que celle-ci se prononce sur la compatibilité de l’accord envisagé avec les traités, un avis négatif imposant, soit la révision des traités, soit la renégociation de l’accord. Or tel est le cas puisque dans son avis 2/13 du 18 décembre 2014 rendu en Assemblée plénière, la Cour constate l’incompatibilité de l’accord avec l’article 6, paragraphe 2, TUE et le protocole n°8 relatif à l’article 6, paragraphe 2.

La surprise vient du fait que la Cour s’était exprimée à deux reprises sur la question avant l’ouverture des négociations, notamment en pré-négociant avec la Cour européennes des droits de l’homme, posant des conditions que les négociateurs avaient pris soin de respecteret qu’elle avait suivi avec attention le déroulement de la négociation. Elle vient aussi du fait que la Cour s’oppose aux vingt-huit Etats membres qui soutenaient unanimement le projet d’accord.

Il faut se garder de toute appréciation rapide qui conduirait à penser que la Cour exprime au fond dans cet avis un refus définitif de l’adhésion parce que celle-ci porterait atteinte à son pouvoir exclusif de statuer sur les droits fondamentaux dans l’Union européenne. Une décision judiciaire ne peut être analysée sur la base d’intentions politiques supposées du juge. Il convient avant tout d’examiner avec soin le raisonnement suivi et d’en apprécier les conséquences. En effet, on ne saurait reprocher à la Cour de vouloir préserver les spécificités de l’ordre juridique de l’Union, d’autant plus que le protocole n°8 relatif à l’article 6 l’invitait à suivre cette voie.

Le challenge présenté par l’adhésion n’est pas facile à remporter. La Convention européenne des droits de l’homme est à l’origine un traité interétatique auquel on se propose de faire adhérer une entité de nature fédérale qui n’est certes pas un Etat.

Aussi une système qui s’applique sans difficultés aux parties contractantes étatiques risque s’il est plaqué sans précautions sur l’Union européenne de dénaturer profondément celle-ci. Tout l’enjeu de la négociation consistait à traiter autant que possible l’Union comme un Etat en ce qui concernait les aspects institutionnels (nomination des juges, participation au Comité des Ministres … ) tout en identifiant les points sur lesquels des adaptations étaient indispensables. Il faut saluer l’effort des négociateurs qui ont identifié les problèmes et tenté de les résoudre, même si la Cour de justice estime que leur effort s’est arrêté en chemin et que le résultat est insuffisant. Mais l’ensemble des points évoqués par la Cour a été identifié et traité au cours des discussions. Continue reading “J.P. Jacqué : L’AVIS 2/13 CJUE. Non à l’adhésion à la Convention européenne des droits de l’homme ?”

La guerre des juges n’aura pas lieu. Tant mieux ? Libres propos sur l’avis 2/13 de la Cour de justice relatif à l’adhésion de l’Union à la CEDH

Original published HERE (emphasis added)

par Henri Labayle, CDRE

Il était attendu par beaucoup, craint par certains, espéré par d’autres. L’avis 2/13 de la Cour de justice rendu le 18 décembre 2014 à propos de l’adhésion de l’Union européenne à la Convention européenne des droits de l’Homme est, en définitive, un avis négatif. Le projet d’accord d’adhésion y est, en effet, jugé comme n’étant ni « compatible avec l’article 6 §2 TUE ni avec le protocole n° 8 relatif à l’article 6 §2 du TUE » relatif à l’adhésion de l’UE à la CEDH. En l’état donc, la cohabitation des deux Cours suprêmes européennes au sein d’un même système juridictionnel de garantie des droits fondamentaux est exclue, à l’inverse de ce que la lettre du traité sur l’Union européenne laissait envisager et que les amateurs de rapports de système escomptaient. Avant de s’interroger sur les conséquences de cet avis faisant obstacle à l’adhésion de l’UE à la CEDH, il est bon d’en rappeler le contexte.

1. Contexte

Les relations entre le droit de l’Union et le droit de la CEDH ne sont devenues problématiques que récemment. Longtemps en effet, le silence des traités constitutifs sur la question de la protection des droits fondamentaux a été comblé par des expédients connus de tous. Volontarisme de la Cour de justice et réserve de la Cour européenne des droits de l’Homme ont ainsi permis au juge de Strasbourg et de Luxembourg d’assurer tant bien que mal une cohérence minimale dans la garantie des droits fondamentaux en Europe.

La question n’était pas que de principe. Si, dans un premier temps, la primauté du droit communautaire en fut implicitement l’enjeu, puisque les Cours suprêmes allemandes et italiennes faisait de cette protection des droits fondamentaux dans l’univers communautaire une condition de leur ralliement, ce dernier fut rapidement dépassé, posant de ce fait et qu’on le veuille ou non des problèmes de préséance.

Car, et cela est rarement mis en relief, la position des Etats membres de l’Union, par ailleurs Etats parties à la Convention européenne des droits de l’Homme, est inconfortable par nature puisque la Communauté, hier, comme l’Union aujourd’hui ne sont pas parties à la CEDH. Elle est même devenue progressivement intenable.

La première explication de cette tension nouvelle tient tout simplement à l’élargissement inéluctable des compétences de l’Union. Non pas que les droits fondamentaux soient devenus en eux-mêmes une compétence de l’Union, comme Jean Paul Jacqué a eu maintes fois l’occasion d’en faire la démonstration, mais parce que les nouvelles compétences de l’Union l’ont conduite directement sur le terrain d’exercice de ces droits fondamentaux. A cet égard, la constitution d’un Espace de liberté, sécurité et justice a marqué une irruption directe de l’Union dans le champ des droits fondamentaux, posant ainsi aux Etats membres en charge de l’exécution des politiques migratoires ou sécuritaires des questions redoutables. Des formes et des limites de la lutte contre le terrorisme à l’obligation de secourir les migrants, les occasions de ne plus esquiver le débat se sont multipliées. Les raisons d’un raidissement aussi.

D’autant que la montée en puissance de la protection juridictionnelle des droits fondamentaux au plan européen a mis les Etats membres en situation de devoir, parfois et en cas de contradiction, choisir entre leurs obligations communautaires et leurs devoirs conventionnels.

La tolérance longtemps manifestée par la Cour européenne des droits de l’Homme, des arrêts Cantoni à l’affaire Matthews c. Royaume Uni a donc pris fin avec la jurisprudence fameuse Bosphorus et l’apparition de la doctrine dite de la « protection équivalente ».

En un mot, pour prix de son indifférence, la Cour de Strasbourg y a marqué les limites de sa compréhension dans un paragraphe 156 qui mérite la citation intégrale : pour « que l’organisation offre semblable protection équivalente, il y a lieu de présumer qu’un Etat respecte les exigences de la Convention lorsqu’il ne fait qu’exécuter des obligations juridiques résultant de son adhésion à l’organisation. Pareille présomption peut toutefois être renversée dans le cadre d’une affaire donnée si l’on estime que la protection des droits garantis par la Convention était entachée d’une insuffisance manifeste. Dans un tel cas, le rôle de la Convention en tant qu’« instrument constitutionnel de l’ordre public européen » dans le domaine des droits de l’homme l’emporterait sur l’intérêt de la coopération internationale (Loizidou c. Turquie (exceptions préliminaires), arrêt du 23 mars 1995, série A no 310, pp. 27-28, § 75) ».

Le reste n’est plus que conséquences.

Continue reading “La guerre des juges n’aura pas lieu. Tant mieux ? Libres propos sur l’avis 2/13 de la Cour de justice relatif à l’adhésion de l’Union à la CEDH”

Steve PEERS :The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection

Original published HERE
18 December 2014

At long last, the CJEU has today delivered its ruling regarding the EU’s accession to the European Convention on Human Rights (ECHR). It’s a complex judgment that raises many legal questions. For now, this post seeks to provide: a summary of the ruling; an assessment of the consequences of the ruling; and an initial critique of the Court’s reasoning. On the latter point, the Court’s ruling is fundamentally flawed. In short, the Court is seeking to protect the basic elements of EU law by disregarding the fundamental values upon which the Union was founded.

Background

Back in 1996, in Opinion 2/94, the CJEU ruled that as European Community law (as it then was) stood at that time, the EC could not accede to the ECHR. Only a Treaty amendment could overturn this judgment, and in 2009, the Treaty of Lisbon did just that, inserting a new provision in the Treaties that required the EU to accede to the ECHR (Article 6(2) TEU). That treaty also added a Protocol 8 to the Treaties, regulating aspects of the accession, as well as a Declaration requiring that accession to the ECHR must comply with the ‘specific characteristics’ of EU law.
However, these new Treaty provisions could not by themselves make the EU a contracting party to the ECHR. To obtain that outcome, it was necessary for the EU to negotiate a specific accession treaty with the Council of Europe. After a long negotiation process, this accession treaty was agreed in principle in 2013. Today’s ruling by the CJEU concerns the compatibility of that treaty with EU law.

Summary

At the outset, the CJEU ruled that the case was admissible (paras 144-52), even though the internal rules which will regulate the EU’s involvement in the ECHR have not yet been drafted. In fact, the CJEU said that these internal rules couldn’t be the subject-matter of the opinion, even if they had been drafted. The UK government had reportedly been very angry about the prospect of the CJEU considering these internal rules, so it should be satisfied on this issue.
Next, the Court made some preliminary points (paras 153-77), asserting for the first time expressly that the EU is not a state (para 156); and (in effect) that the EU system is sui generis (para 158), ie in a class by itself, without using that exact Latin phrase. Those critics of the EU who consider it to be a State, and those academics who dislike the sui generis concept, now have some words to eat. The Court also asserted that it was important to ensure the primacy and direct effect of EU law, referring also to the EU’s goals of ‘ever closer union’.

The Court then ruled that the draft agreement was incompatible with EU law, for five main reasons.

Firstly, it did not take account of the specific characteristics of EU law (paras 179-200), in three respects.
It did not curtail the possibility of Member States having higher human rights standards than EU law, even though the CJEU had ruled (in the Melloni judgment of 2013) that Member States could not have higher standards than the EU Charter of Rights, where the EU has fully harmonised the law. The same rule applies to the ECHR, in the Court’s view, and the draft agreement did not take account of this. Similarly, the draft agreement did not provide for the application of the rule of ‘mutual trust’ in Justice and Home Affairs (JHA) matters, which means that Member States must presume that all other Member States are ‘complying with EU law and particularly with the fundamental rights recognised by EU law’, other than in ‘exceptional circumstances’. Also, the agreement failed to rule out the possibility that when applying Protocol 16 to the Convention, which provides for national courts to send questions to the European Court of Human Rights (ECtHR) on the interpretation of the ECHR, those national courts would ask the ECtHR to rule on EU law issues, before they asked the CJEU. This would circumvent the EU’s preliminary ruling procedure.

Secondly, the draft accession agreement violated Article 344 TFEU, which gives the CJEU monopoly on inter-state dispute settlement regarding EU law between Member States (paras 201-14), since it failed to rule out the possible use of the ECtHR to settle such disputes instead.

Thirdly, the co-respondent system set up in the draft agreement, which creates a new type of procedure where both the EU and a Member State could be parties to an ECtHR case, was incompatible with EU law for three reasons (paras 215-35). The problem with this process was that: it would give the ECtHR the power to interpret EU law when assessing the admissibility of requests to apply this process; a ruling by the ECtHR on the joint responsibility of the EU and its Member States could impinge on Member State reservations to the Convention; and the ECtHR should not have the power to allocate responsibility for breach of the ECHR between the EU and Member States, since only the CJEU can rule on EU law.

Fourth, the rules in the draft treaty on the prior involvement of CJEU before the ECtHR ruled on EU law issues were also incompatible with EU law, for two reasons (paras 236-48). They did not reserve to the EU the power to rule on whether the CJEU has already dealt with an issue, and they did not permit the CJEU to rule on the interpretation, not just the validity, of EU law.

Finally, the rules on the Common Foreign and Security Policy (CFSP) were incompatible with EU law (paras 249-57), because a non-EU court cannot be given the power of judicial review over EU acts, even though the CJEU has no such jurisdiction itself as regards most CFSP issues.

Consequences Continue reading “Steve PEERS :The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection”

The data protection regime applying to the EU inter-agency cooperation and future architecture of the EU criminal justice and law enforcement area

(*) The full study for the European Parliament LIBE Committee can be downloaded HERE

By Professor PAUL DE HERT

EXECUTIVE SUMMARY

From a data protection perspective, fragmentation is the main characteristic of the legal framework in place in the agencies in the EU criminal justice and law enforcement area .
A multitude of EU agencies operates under their own individual legal framework with little regard for harmonization , consistency or even compatibility among their personal data processing , while the basic text that would supposedly set the common standard in the field , the Data Protection Framework Decision, expressly excuses itself from assuming this role.
Each one of the EU bodies and agencies operating within the EU criminal justice and law enforcement area is until today governed by its own legal constituting text (s) that customarily address data protection issues but however does so in a piecemeal and introverted way: supervision of data protection practices is vested upon each agency’s internal mechanisms and management. This architecture, that reflects the pre-Lisbon third pillar environment, has been preserved until today, despite of the fact that in the meantime interagency cooperation has proliferated: not only have formal bilateral cooperation agreements been entered among all EU agencies but also cooperation takes place outside EU borders as well , through chartered, or unchartered, personal data exchanges with third countries and international organisations.
Adequate data protection supervision, in the sense of a single, coordinated monitoring authority, is emphatically missing from all such exchanges.

The ratification of the Treaty of Lisbon is a milestone that affected the EU criminal justice and law enforcement area in more than one way. Among others, the culmination of a standalone individual right to data protection and the involvement of the European Parliament in any decision – making in the field are crucial factors that enabled an, admittedly much needed, change. Such change came in the form of a series of Commission proposals that were released over the past couple of years and which, if implemented, will completely restructure the current EU data protection architecture in the criminal justice and law enforcement area.
The Commission proposals originate from Article 16 TFEU, which introduces a new right to data protection and requires new rules on the personal data processing by EU agencies , as well as independent monitoring, but also from Declaration 21, which allows f or “specific rules” in the field.

To this end, the Commission introduced both general and agency-specific texts.
At a general level, a Police and Criminal Justice Data Protection Directive is intended to replace the Data Protection Framework Decision. At agency-specific level, the Europol and Eurojust draft Regulations are intended to replace the respective Decisions in force today; at the same time a new Regulation is aimed at introducing the European Public Prosecutor’s Office (EPPO) while work has been promised by the Commission also on amending Regulation 45/2001.
Such law-making process entails herculean efforts by all the bodies involved in it (the Commission, the Parliament and the Council) in order to keep the overhaul of data protection rules in force today (in the EU criminal justice and law enforcement field) synchronized and coordinated .

Although none of the above legislative proposals is yet finalized (in fact, only one has reached “trilogue” stage), the Commission’s preferred data protection architecture has become by now evident: the draft Directive is to replace the Framework Decision but not to affect any agency – specific personal data processing. This task will be undertaken by Regulation 45/2001 (or its successor) and the European Data Protection Supervisor (EDPS).

This architecture is basically taken for granted for the purposes of this analysis: regardless of its merits or drawbacks, other than the Commission also the Parliament has shown no substantial objection to it.

Therefore, the interplay of the instruments involved (the Police and Criminal Justice Data Protection Directive, Regulation 45/2001 or its successor, the Europol, Eurojust and EPPO Regulations) has been attempted to be sketched in the six different scenarios that follow , each in turn assessed in terms of legal and pragmatic plausibility under the current environment:
• A “unified model” scenario, under which the Police and Criminal Justice Data Protection Directive would regulate all the EU criminal justice and law enforcement area (including therefore the EU agencies operating therein);
• A “segregated model” scenario, whereby the Police and Criminal Justice Data Protection Directive would leave EU agencies’ personal data processing outside of its scope (as is currently the situation under the Data Protection Framework Decision ) ;
• An “interim segregated model” scenario, under which the above segregated approach would only last for a few years, after which EU agencies would have to bring their personal data processing under the Police and Criminal Justice Data Protection Directive;
• An “alternative unified model” scenario, that, as originally suggested by the Commission, would use Regulation 45/2001 as a common standard – setting text for all EU agencies, whose individual constituting legal instruments would subsequently supplement and further specify its provisions;
• A scenario whereby the current architecture is preserved and consequently neither the Police and Criminal Justice Data Protection Directive nor Regulation 45/2001 (or its successor) affect in any way the agency – specific (revised) texts, and
• An, unfortunately likely for the immediate future, scenario, whereby Regulation 45/2001 is not amended in time and all of Europol, Eurojust and EPPO Regulations , when adopted, will supplement and further specify its provisions, which are outdated and unsuitable for the criminal justice and law enforcement area.

National security and secret evidence in legislation and before the courts: exploring the challenges

FULL STUDY DOWNLOADABLE HERE
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EXECUTIVE SUMMARY
This Study examines the way in which justice systems across a selection of EU Member States use and rely on intelligence information that is kept secret and not disclosed to the defendants and judicial authorities in the name of national security.
It analyses the laws and practices in place from the perspective of their multifaceted impact on the EU Charter of Fundamental Rights (in particular its provisions related to the rights of the defence and freedom of information and expression), as well as on wider ‘rule of law’ principles. The analysis is based on a comparative study of the legal regimes, interpretations by domestic and European tribunals as well as key developments and contemporary practices concerning the use of intelligence information as ‘evidence’ and the classification of information as ‘state secrets’ during trials in the name of ‘national security’ in the following seven EU Member States (EUMS): the United Kingdom, France, Germany, Spain, Italy, the Netherlands and Sweden.

The examination has highlighted a number of key research findings.

It first shows a wide variety of national legal systems and judicial practices embedded in domestic historical, political and constitutional trajectories characterising each Member State jurisdiction (see Section 1 of the Study and Annex 5 with detailed Country Fiches).
The United Kingdom and the Netherlands are the only two Member States examined with official legislation allowing for the formal use of classified intelligence information in judicial proceedings. The United Kingdom constitutes an ‘exception’ in the broader EU landscape due to the existence of the much-contested ‘Closed Material Procedures’ (CMPs) – secret court hearings where only the judge and security-cleared special advocates are given access to sensitive intelligence material. The Netherlands operates a system of ‘shielded witnesses’ in courts, allowing intelligence officials to be heard before a special examining magistrate (Sections 1.1. and 1.2 of this Study). Other EUMS analysed (Germany, Spain and Sweden) present indirect judicial practices in which certain evidence may be hidden from a party during trials under a number of conditions (Section 1.3).

Nevertheless, the Study demonstrates that secret evidence is not always legal evidence. In countries such as Germany, Italy or Spain the rights of the defence and the right to a fair trial cannot be ‘balanced’ against national security or state interests as this would directly contravene their respective constitutional frameworks (Section 1.4).

Yet, all EUMS under examination face a number of challenges as regards the difficult and often controversial declassification or disclosure of intelligence materials, which too often lacks proper independent judicial oversight and allows for a disproportionate margin of appreciation by state authorities (Section 1.5 of this Study).

Another issue resulting from the comparative investigation relates to the fuzziness and legal uncertainties inherent to the very term ‘national security’ (as evidenced in Section 1.6 and Annex 3).
While this notion is quite regularly part of political and legal debates in EU and national arenas, the Study reveals that a proper definition of what national security actually means is lacking across a majority of EUMS under investigation.
The few definitional features that appear in EUMS’ legal regimes and doctrinal practices fail to meet legal certainty and ‘rule of law’ standards, such as the “in accordance with the law” test (see below). This too often leads to a disproportionate degree of appreciation for the executive and over-protection from independent judicial oversight, which is further exacerbated in a context where some EUMS have bilateral systems of mutual respect of state secrets with third countries such as the US.
Moreover, the disparities and heterogeneous legal protection regimes among EUMS also mean that EU citizens who are suspects in judicial procedures are protected differently or to divergent degrees across the EU. There are variable ‘areas of justice’ in the EU when it comes to the rights of defence of suspects in cases dealing with national security and state secrets. This diversity is at odds with the ambition of developing a common AFSJ and achieving non discrimination between EU nationals when it comes to the delivery of fundamental rights.

A second key finding of the Study relates to a growing transnational exchange of intelligence and use of these intelligence materials before courts (as developed in Section 2 and Annex 1 of this Study).

The 2013 Snowden revelations provide the general context within which EUMS’ regimes and practices need to be analysed. There has been a growing expansion of intelligence cooperation across the world, which is mainly transatlantic and asymmetrical in nature due to the more prominent role played by the US.
This has strengthened the view that transnational threats require a more extensive sharing of raw data on individuals collected by internet or mobile devices. This trend poses a number of dilemmas from the perspective of judicial accountably and the rule of law (Section 2.1 of this Study). One relates to the difficulties in assessing the quality, lawfulness and accuracy of the information, and the extent to which this very information can be considered ‘evidence’ in trials (Section 2.2). The current reliance on intelligence information is, moreover, problematic in light of insufficient or deferential judicial oversight of executive decisions taken ‘in the name of national security’.
This is particularly also the case in respect of the ways in which the use of state secrets can disrupt government officials’ accountability in cases of alleged ‘wrongdoing’ (Section 2.3).

A third finding concerns an emerging set of European judicial standards from the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) on issues related to intelligence information, national security and state secrets, in particular when these affect the rights of the defence (refer to Section 3, Annex 1 and Annex 2 of this Study).

One of the most important legal standards when assessing national security and intelligence information is the “in accordance with the law” principle. Continue reading “National security and secret evidence in legislation and before the courts: exploring the challenges”

Presumption of Innocence and the Right to be Present at Trial: the Meijers Committee’s (*) position

Original published HERE

The Meijers Committee has taken note of the General Approach adopted by the Council on the Proposal for a directive of the European Parliament and of the Council on strengthening certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings (dated 4 December 2014, Council Doc. 16531/14). The Meijers Committee emphasises the great importance of the presumption of innocence and related rights in criminal proceedings to suspected and accused persons. Following the extensive revisions in the Council preparatory bodies and the General Approach ultimately adopted, the Meijers Committee invites the Parliament and the Council to take the following remarks and suggestions into consideration.

Subsidiarity of the proposal

A number of Member States have expressed doubt as to the added value of the current proposal. Together with the Dutch Advisory Council on International Affairs, the Meijers Committee is of the opinion that harmonizing procedural rights is most desirable in light of previously agreed European cooperation in criminal matters.(1) This ensures the legal protection of individuals throughout the Union. The Meijers Committee notes that although guarantees as to the presumption of innocence and the right to be present at trial are of an adequate standard in many Member States, harmonization will enhance the mutual trust which mutual recognition presupposes.

Material scope: not only criminal law

The proposal limits the scope of application of this directive to criminal proceedings only. Administrative proceedings, including administrative proceedings that can lead to sanctions, such as proceedings relating to competition, trade, financial services, or tax, including tax surcharge, and investigations by administrative authorities in relation to such proceedings, as well as civil proceedings, are not covered by this Directive (recital 6).

The Meijers Committee finds this general exclusion of administrative law from the scope of application of this directive to be unjustified. The Meijers Committee recalls the long line of case-law of the European Court of Human Rights, which establishes that the application of administrative law can be (extremely) punitive in nature (e.g. fines in tax law), and hence fall within the scope of Article 6 ECHR concerning a fair trial.(2) Many branches of law, such as those mentioned in the recital above and social security and agricultural law, are upheld by administrative law and its administrative sanction system, not by the criminal law. Although the sanctioning system is a national choice, the Meijers Committee sees no justification for allowing the Member States to choose whether or not a European human right standard, such as the “presumptio innocentiae”, should apply when the sanction is punitive in nature. The Meijers Committee recommends that Article 2 be expanded to cover all administrative proceedings and investigations that can lead to sanctions. Continue reading “Presumption of Innocence and the Right to be Present at Trial: the Meijers Committee’s (*) position”

Statewatch Analysis: The Proposed Data Protection Regulation: What has the Council agreed so far?

By Steve Peers, Professor of Law, University of Essex
Twitter: @StevePeers 8 December 2014

Introduction

Back in January 2012, the Commission proposed a new data protection Regulation that would replace the EU’s existing Directive on the subject. It also proposed a new Directive on data protection in the sphere of law enforcement, which would replace the current ‘Framework Decision’ on that subject.
Nearly three years later, there has been some gradual progress on discussing these proposals. The European Parliament (which has joint decision-making power on both proposals) adopted its positions back in the spring. For its part, the EU Council (which consists of Member States’ justice ministers) has been adopting its position on the proposed Regulation in several pieces. It has not yet adopted even part of its position on the proposed Directive.
For the benefit of those interested in the details of these developments, the following analysis presents a consolidated text of the three pieces of the proposed Regulation which the Council has agreed to date, including the parts of the preamble which have already been agreed. I have left intact the footnotes appearing in the agreed texts, which set out Member States’ comments.
The underline, italics and bold text indicate changes from the Commission proposal. I have added a short summary of the subject-matter of the Chapters and Articles in the main text which have not yet been agreed by the Council.
For detailed analyses of some parts of the texts agreed so far, see the links to the two blog posts.
The Council might always change its current position at a later point, and of course the final text of the new legislation will also depend on negotiations between the Council and the European Parliament.

Background documents :‘Public sector’ provisions, agreed by Dec. 2014 JHA Council:
Chapter IV, agreed by Oct. 2014 JHA Council: Rules on territorial scope, agreed by June 2014 JHA Council: Proposal from Commission:Position of European Parliament: Analysis of agreed territorial scope rules: Analysis of agreed ‘privacy seals’ rules:

SEE THE FULL CONSOLIDATED TEXT ANALYSIS (85 pages) HERE

LGBTI ASYLUM-SEEKERS: THE CJEU SENDS MIXED MESSAGES

by Professor Steve Peers

ORIGINAL PUBLISHED HERE

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

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

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

The judgment

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

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

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

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

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

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

Comments

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

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

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

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

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

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

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

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