Category: 3. Fundamental rights – Charter

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

 

LogoSummerSchool2013Rome

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

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

Night view of Europe

Aim: to take stock of the current state of EAFSJ and of its foreseeable evolution within the next multiannual program 2015-2019 (to be adopted under Italian Presidency at the beginning of the next legislature).
Lenght: 4 one day modules
Subscriptions: on line on the Fondazione Basso internet site : http://www.fondazionebasso.it
Participation fees:
Euro 480,00 (ORDINARY FEE).
Euro 200,00 (FOR STUDENTS / RESEARCHERS) .
(Bank Account of Fondazione Lelio e Lisli Basso – Banca Nazionale del Lavoro Ag. Senato Palazzo Madama: IBAN IT18I0100503373000000002777 ).
Subscriptions should be submitted before June 15th.The Summer School will take place only if a minimum number of subscribers is reached !For further information : tel. 0039.06.6879953 – basso@fondazionebasso.it
 Languages: lessons will be mainly in Italian (some lessons will be in English and French), teaching material will be in Italian and/or English, French.
English/Italian translation will be available.
The programme is on the web-site of Fondazione Basso (www.fondazionebasso.it -Tel. 06.6879953 – email: basso@fondazionebasso.it)

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

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

Debate

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

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

Debate

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

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

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

Debate

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

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

Debate

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

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

Debate

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

Debate

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

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

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

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

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

Debate

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

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

Debate

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

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

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

Debate

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

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

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

Final Debate

PRESENTATION OF THE COURSE

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

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

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

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

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

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

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

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

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

Speakers:

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

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

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

BuonGoverno

Towards Europol 2.0 : first obstacles during the parliamentary debate…

by Marine Marx

The long awaited Commission legislative proposal updating Europol to the new legal framework as described by art 88 of the TFEU has been recently submitted to the European Parliament and to the Council of the European Union. Quite surprisingly the first issue which has arisen during the parliamentary debate has been the proposed fusion of Europol with CEPOL (the European Agency in charge of training Law enforcement authorities).

The fusion of Europol and Cepol as a first test of a new general policy on EU agencies

It is worth recalling that this proposal comply with the general EU objective to make some order in the recent mushrooming of EU agencies (already 32, 23 of them created only in the last ten years). These decentralized agencies are playing an essential role not only in the implementation phase at technical, scientific and operational level but also when shaping new strategies and proposing new legislation in all EU domains of competence. However, as explained in a Joint Statement of the European Parliament, the Council of the EU and the European Commission on decentralized agencies[1], their creation has been done on a case by case basis without an overall vision of their role and place in the European institutional and legal framework. This led to an increase of decentralized agencies in a way that lack of consistency. To face these distortions, the Commission explained in the Roadmap on the follow-up to the Common Approach on EU decentralised agencies[2] its objectives to reach a more balanced governance, improved efficiency and accountability and greater coherence.

Thus, one of the major objectives is to enhance agencies’ efficiency and accountability. One of the initiatives to be pursued in this respect is to seek synergies between agencies, such as the possibility of sharing services based on proximity of locations or policy area or that of merging agencies whose tasks are overlapping and which would more efficient if inserted in a bigger structure.

This point stressed in the Common Approach establishes the foundations for the Commission’s proposal on a revision of Europol and its potential merger with CEPOL.

However merging Europol and Cepol risks to be a bumpy road..

On Tuesday, the 7th of May, a debate was held within the European Parliament’s civil liberties committee (LIBE) about the merger of the European Police College (Cepol) with the European Police Cooperation Agency (Europol). Thus, the LIBE committee organized during its meeting an exchange of views with Dr Ferenc Banfi, Director of CEPOL and Rob Wainwright, Director of Europol and the Chairs of the Management Boards on the proposal of a merger between Europol and CEPOL.

Continue reading “Towards Europol 2.0 : first obstacles during the parliamentary debate…”

Terrorism and “Intelligence-led policing”: the German Constitutional Court draws its “red lines”..

On April 23rd, shortly after the European Union started working on the new Europol legal framework which is deemed to align the main intelligence led policy Agency with the Lisbon Treaty and with the European Charter the German Constitutional Court (BVG) decided to impose a strict separation between the work of the police and intelligence services. As in several other cases where the BVG jurisprudence has influenced also the European legislature this ruling will be probably thouroughly analysed also in Brussels even if the BVG maintain that the issue falls under the national exclusive competence. Therefore it will be more than likely that the principles outlined in this ruling would be taken in account in the EU draft legislation on data protection when these data are collected for security purposes.

According to the BVG press release  (emphasis added) “…For the Karlsruhe based court, the exchange of data between the Federal Office for the Protection of the Constitution, intelligence services, military counter-intelligence and the police amounts to — a severe infringement of the rights of those concerned, which is why it can only be allowed in exceptional cases. The judges did, however, authorise an “anti-terrorist” listing, while declaring another “secret service contact” listing unconstitutional. Initiated in 2006, the second database contains information on 18,000 potential terrorists, supplied by 38 intelligence services.
The counter-terrorism database is in its fundamental structures compatible with the Basic Law. However, it does not meet the constitutional requirements regarding specific aspects of its design.
This is what the First Senate of the Federal Constitutional Court decided in a judgment that was issued on April 23. Under certain conditions, the unconstitutional provisions can continue to be applied until new regulation has been enacted, but no later than until 31 December 2014.

The Decision is Essentially Based on the Following Considerations: Continue reading “Terrorism and “Intelligence-led policing”: the German Constitutional Court draws its “red lines”..”

The EP Committee rejects the proposal for an european passenger name record system (PNR)

written by Marine MARX

Wednesday the 24th of April, the EP Civil Liberties committee rejected the Commission Proposal for on the use of Passenger Name Record data (EU PNR). This proposal aimed at allowing the transfer of air passengers’ data for security purposes inside the EU territory.

Indeed, air carriers should collect PNR data from passengers during reservation and check-in procedures for flights entering or leaving the EU. PNR includes notably the passenger’s name, address, phone number, credit card details as well as “free text” linked with the management of the travel contract. Following an already settled US and Canada and Australia practices[1], the Commission proposed in February 2011 to oblige air carriers to provide EU countries with the data of passengers entering or leaving the EU, for use in preventing, detecting, investigating and prosecuting serious crime and terrorist offences.

The result of the vote led the Civil Liberties committee to a heated debate between the ones in favor of an EU PNR Scheme and the ones who voted against it (30 against, 25 in favour).  This division has come without surprise on this issue as the PNR saga dates back to an EP resolution in March 2003[2] and has always been a divisive topic.

Continue reading “The EP Committee rejects the proposal for an european passenger name record system (PNR)”

Analysis :The second phase of the Common European Asylum System: A brave new world – or lipstick on a pig? By Professor Steve Peers, (*) University of Essex

ORIGINAL PUBLISHED ON STATEWATCH

(* FREE Group Member)

8 April 2013

Several years ago, the EU set itself the deadline of 2010 – later postponed to 2012 – for completing the second phase of the Common European Asylum System (CEAS). Near the end of March 2013, the European Parliament (EP) and the Council (the Member States’ interior ministers) finally agreed upon the texts of the two remaining legislative measures to this end.
No further EU measures on asylum (other than a revision of the current European Refugee Fund) are currently under discussion or planned for the time being. So the recently agreed rules will likely govern the issue of asylum in the EU for a number of years to come.

The objectives of the second phase of the Common European Asylum System were set out in the policy plan on asylum published by the Commission in 2008 (see the links below). This policy plan began by pointing out some key general trends.

In particular, a ‘critical flaw’ of the first phase of the Common European Asylum System was the wide difference in Member States’ recognition rates, ie the percentage of persons from the same country of origin whose claim for refugee status was accepted or not.

This divergence created ‘secondary movements’ (ie movements of asylum-seekers between Member States) and ‘goes against the principle of providing equal access to protection across the EU’.
Also, an increasing number of applicants were given ‘subsidiary protection’, ie a form of protection other than refugee status, and it was necessary to take account of this when developing the second phase legislation.

As for the content of the Common European Asylum System, the objective of creating the system was first agreed back in 1999, at the European Council (ie summit meeting) in Tampere, Finland. It was then agreed that there should be a ‘uniform status of asylum’ which would be ‘valid throughout the Union’.

Since the entry into force of the Treaty of Lisbon in 2009, these objectives are now a legally binding part of the EU Treaties (Article 78 of the Treaty on the Functioning of the European Union).

The most recent multi-year Justice and Home Affairs programme, agreed in 2009 (the ‘Stockholm programme’) states that:

The European Council remains committed to the objective of establishing a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection. While [the] CEAS should be based on high protection standards, due regard should also be given to fair and effective procedures capable of preventing abuse. It is crucial that individuals, regardless of the Member State in which their application for asylum is lodged, are offered an equivalent level of treatment as regards reception conditions, and the same level as regards procedural arrangements and status determination. The objective should be that similar cases should be treated alike and result in the same outcome.

Furthermore:

There are still significant differences between national provisions and their application.
In order to achieve a higher degree of harmonisation, the establishment of CEAS, should remain a key policy objective for the Union. Common rules, as well as a better and more coherent application of them, should prevent or reduce secondary movements within the Union, and increase mutual trust between Member States.
With the recent agreement in principle on all of the remaining legislative proposals, it is time to assess whether the second phase of the Common European Asylum System will achieve the objective of ensuring common standards based on a high degree of protection.

Overview

There are five main measures making up the first phase of the Common European Asylum System, and all of them are being updated as part of the second phase of the system.

The state of play of these five measures is as follows: Continue reading “Analysis :The second phase of the Common European Asylum System: A brave new world – or lipstick on a pig? By Professor Steve Peers, (*) University of Essex”

An european area of freedom, security and justice ? Paving the way from Stockholm …to Rome in 2014

On November 7th the FREE Group submitted to the Chairman and other members of the Civil liberties Committee of the European Parliament its “Call for a true European Area of Freedom Security and Justice”. The main aim of the “Call” was to evaluate what has been done (or not done) since the entry into force of the Lisbon Treaty and the adoption of the Stockholm Programme.
Learning from failures and successes is a pre-condition for the new phase which will start from December 1st, 2014 (at the end of the five-years transitional period for the measures adopted before the Lisbon Treaty in judicial and police cooperation domain) (1).

According to the FREE Group “CALL” from December 2014 onward, EU and its Member States have to close the current gap between the EU legislation and the principles and objectives now outlined in the Treaties and in the European Charter of fundamental rights. Needless to say, the “lisbonisation” of police and judicial cooperation in penal matters, (1) will be the first test of the real will of the member States and of the EU institutions. Unfortunately the current situation is not promising at all and the announced UK opt-out will not make things easier either.
However, a fundamental shift of responsabilty between the EU institutions is also needed to make the EAFSJ more legitimate and credible.

The European Council which has acted until now practically alone when it has adopted the multiannual programmes of Tampere (1999), Den Haag (2004) and even Stockholm (2009). It should now accept the fact that after Lisbon, even if it will maintain its strategic role in this area (art.68 TFEU) it has to play it by taking in account the new EU institutional balance arising from the Treaties and the Charter. The new role of the European Parliament, of the Commission and of the Court of Justice in the EAFSJ policies requires a different relation with the European Council which is no more the “Deus ex machina” but an institution which like all the others should respect the principle of loyal cooperation, abide to the obligations of transparency (art. 15 TFEU), respect of democratic principles, dialog with civil society (art.11 TEU) and, last but not least, be accountable to the EU citizens.
In this perspective a strong interaction with the other Institutions directly elected by the european citizens such the European Parliament and of the national parliaments become unavoidable.
Moreover a stronger integration of the European Council within the “ordinary” EU institutional dialogue will not only re-establish the checks and balances within the EU (required since 1958 by the ECJ “Meroni” ruling) but could also trigger as a substantial effect, a real political debate also betweeen the european political “families” which still prefers hiding themselves behind the EU institutional machinery.
If such an open political debate arises it will be extremely beneficial for the all EU construction and could prove that the EAFSJ policies are no more an area restricted to skilled diplomats and burocrats “elites” shaping the Council and Commission’s Strategies, Conclusions, Guidelines, Roadmaps… .

The future Italian Presidency of the EU Council which will take place in the second semester of 2014, could play a decisive role for a more transparent and democratic phase of the EAFSJ.

However to make this change possible hard preparatory work is needed and should start already now because the EU is a sort of “super carrier” which requires time and skillfulness to change its direction. Moreover as soon as this change of strategy will become apparent it will inevitably create the opposition inside the Council, the Commission and even in the European Parliament as it happened for the “access to documents” file. It is well known that soon after the “Turco” ruling of the Court of Justice which has required more transparency in the Council and Commission these institutions have developped a clear opposite strategy to “protect” their old decision making procedures.

This kind of turf wars between the EU institutions could be extremely dangerous from an european citizen’s perspective because the EAFSJ policies should now be negotiated and implemented in full compliance with the EU Charter. They have become the core of a new European Public order which can be considered democratic only if the EU citizens and their representatives could influence both the national and European level. This objective was crystal clear when the Charter has been negotiated, and it has been reiterated also by seminal ruling of national Constitutional Courts, but since then it looks fading away from the EU legislative works and debates.

However this sort of resilience of the “Maastricht style” even after the Lisbon Treaty and EU Charter risks to be a slippery slope for the EAFSJ policies.

For thirty years the EU has underestimated the close relation between the EURO and a true EU Economic policy; let’s hope that the same mistake will not be repeated for the relation which has now to established between the EU Charter and the relevant EAFSJ policies. They should no more evolve, as it is still now the case, in a parallel world separated from the other EU policies notably in the economic and social sphere. In politics (as in nature) everything is linked. Again, the role that the future Italian Presidency could play will be extremely important because it will be at the beginning of a new EU legislature as well as of the new 18th months Trio Presidency cycle which will cover from 1st of July 2014 to December 31st 2015.

By framing the new global EU roadmap bringing together the EAFSJ policies with the new EU 2020 agenda the Italian Presidency can make the difference by setting a new bridge on (still) troubled waters.

EDC

1. See artt 9 and 10 of Protocol 36 on “TRANSITIONAL PROVISIONS CONCERNING ACTS ADOPTED ON THE BASIS OF TITLES V AND VI OF THE TREATY ON EUROPEAN UNION PRIOR TO THE ENTRY INTO FORCE OF THE TREATY OF LISBON

Article 9
The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties.
The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union.

Article 10
1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.
2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.
3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.
4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.
The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.
5. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen Acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area
of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.”

European Data Protection : legislative negotiations soon to be started …

Three years after the entry into force of the Lisbon treaty the long awaited legislative negotiations on the future European Union legal framework on data protection will now start between the European Parliament and the Council of the European Union. The competent parliamentary Committee LIBE will now debate two reports dealing respectively with
– a first report on the draft EU regulation covering the cases where possible the private sector is involved
– a second report on the draft EU Directive covering the cases where public authorities are involved.

The procedure

On the procedural side the two reports will in the coming months be debated and amendments will soon be submitted by all the political groups so that everyone will have the chance to take position on the main aspects of the proposed EU legislation. A first “orientation” vote will then take place and a majority will arise inside the parliamentary commitee and this majoritarian position will be the basis for the dialogue with the Council. The latter will also try to build its own majority between the national delegations. If successful a “general approach” will be endorsed by the Committee of Permanent Representatives (COREPER) and by the Council and this will be the Council alternative text to the parliamentary Committee “orientation”. The dialogue between the two institutions will then take place with the aim to reach a possible compromise.
If a compromise is reached it will be voted by the parliamentary committee and then by the plenary. The same will happen on the Council side and the procedure could then be considered closed (according to the practice of the so called “first reading agreement” an interinstitutional practice which has become the rule in the legislative negotiations at European Union level).

Will this procedure be successful for the data protection “package” ?

It is still possible but not granted as the issue of data protection is extremely sensitive and impact on fundamental interests in the public and private sphere. The end of the legislature is not so far (mid-2014) and there is not much time to close the negotiations in time if no “first reading” agreement is out of view in the coming months.
The pressure exist on both sides as Ireland, which is now chairing the Council Presidency, is the country where giants like GOOGLE and Facebook have their european seat, and is interested more than others in clarifying the new legal framework to avoid all the possible problems which could arise from a still unclear legal situation.
On the other side also the European Parliament is strongly committed in reaching an agreement because data protection has been at the centre of a more then a decade long “saga” with the other institutions (suffice to remember the controversial Plenary votes on the international agreements with the USA on Safe Harbor, PNR, SWIFT, and enquiry on the ECHELON system..).

However because of this pressure on both side the risk of stalemate could not also be excluded.

The evolution of the EU constitutional framework

On the Content side there are several new elements to be taken in account.
First of all since the entry into force of the Treaty of Lisbon the constitutional framework for data protection is radically changed.

Before this Treaty Protection of personal data was not an autonomous EU objective but a condition to be fulfilled as a corollary of other public objectives such as sharing data in the framework of the single market or collecting data to prevent transnational crime and terrorism. The legal basis for legislating in this domain where the articles of the treaties empowering the EU institutions for building the internal market (art.95 of the European Community Treaty) or to grant an hig level of security (art.29 of the Treaty of the European Union).

It is worth recalling that notwhitstanding its original focus on internal market the Community draft legislation (Com (90)0314 – C3-0323/Syn 287; OJ No. C277, 5.1.1990, p3) became the most advanced standard setting legal text on Data protection principles taking stock of the previous works in international fora such as the Council of Europe (Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, adopted on 28 January 1981) and in the OECD (OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal data, adopted on 23 September 1980). The legal framework for data protection by law enforcement authorities were before Lisbon much more sparse, confuse and vague because at that time protection of public security at EU level was dealt at intergovernamental level and there was no real will to harmonize the existing national (diverging) standards.
Only because of the pressure of the European Parliament and after the signature of the Lisbon Treaty (!) an intergovenramental Framework Decision on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters has been published on 30 December 2008. However the Framework Decision which is still into force cover only transnational transfert of data so that it does not establish a common level of privacy protection nor cover the EU institutions and agencies (Schengen information system included) which continue even today to consider as reference the Council of Europe Convention of …1981 and a Recommendation of 1987 .

The lack of a legal general framework for data protection together with a lack of Member States political will have probably been the main cause of the interinstitutional conflicts of the last fifteen years as well as of the growing tensions with the USA. As it happens often in case of interinstitutional stalemate the only progresses made came from the jurisprudence of national and european judges.()

After the entry into force of the Treaty of Lisbon everything is changed because data protection has been recognised as a fundamental right as well as a self standing objective of the European Union.

On the first aspect the art. 8 of the EU Charter is crystal clear:
“(1) Everyone has the right to the protection of personal data concerning him or her.
(2) Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
(3) Compliance with these rules shall be subject to control by an independent authority. “

In short, protecting personal data is like protecting not only the image of an individual but also his ability to act in a given society without external public and private interference (the so-called right to “self-determination” which has been shaped already in 1983 by the jurisprudence of the German Constitutional Court. According to the “Census” judgment:“A social and legal order in which the citizen can no longer know who knows what when about him and in which situation, is incompatible with the right to informational self-determination. A person who wonders whether unusual behaviour is noted each time and thereafter always kept on record, used or disseminated, will try not to come to attention in this way. A person who assumes, for instance, that participation in a meeting or citizen initiative is officially recorded, and may create risks for him, may well decide not to use the relevant fundamental rights ([as guaranteed in] Articles 8 and 9 of the Constitution). This would not only limit the possibilities for personal development of the individual, but also the common good, because self-determination is an essential prerequisite for a free and democratic society that is based on the capacity and solidarity of its citizens”.
To protect personal data amounts not only to protect the liberty of the individual and, his dignity but even a more general good of the democratic society itself.

However such beautiful principles would be meaningless if not reflected in a binding legislation and in the daily life. To reach this objective art. 16 of the Treaty on Functioning of the European Union (TFEU) makes clear that personal data should be protected by “Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data.”

This will not be an easy task because EU law cover now all the main aspects of a person’s daily life in a global world where personal data have become the blood of the information society.
Massive data collection, on-line tracking and profiling not only by private companies but also by public authorities have become so widespread that many people consider that the protection of personal data itself do not exist any more. It seems that it has been killed
– by widespread invasive relatively low-cost technology
– by individual’s naïve behaviour in the social network
– by big private societies which are making an incredible amount of money from on-line advertising built on the exploitation of personal data (obtained for free)
– and last but not least by public authorities which, in a borderless world, having the facto lost the control of their territories try to prevent crime and terrorism by profiling potential dangerous people and collect everywhere massive amounts of personal data.

The post-Lisbon legislative data protection package

Confronted with the challenge of defining the new post-Lisbon data protection framework the Commission after thorough comparative studies has decided to maintain a twin track approach by submitting a Draft Regulation for protecting personal data in the civil domain and a Draft Directive adressed to public authorities when collecting personal data for security purposes. This choice has not been appreciated by the data protection authorities and by the European Parliament not only for the risk of inconsistencies but also for the risk of grey areas for activities which can fall in between.

CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE

By the “Fundamental Rights European Experts Group” (FREE Group) (see below)
“Let’s be driven by our values and not by our fears”

1. Three years after Lisbon the objective of an EAFSJ is still far away…

Three years after the entry into force of the Lisbon Treaty and of the European Charter of fundamental rights one can wonder if the European Union and its Member States are really committed to the objective of building the European Freedom Security and Justice Area. It is worth recalling that this objective dates back to 1997 when the Amsterdam Treaty was signed, but it has since then been substantially upgraded by the Lisbon Treaty.

After years of hard negotiations between the MS the EAFSJ has been tightly linked to a newly binding Charter of fundamental rights and some of the previous political, legal and democratic flaws have been solved. For three years the qualified majority voting has been the normal Council decision-making rule, the EP is a full co-legislator and the Commission and the European Court of Justice can fully play their role.

2. A deceiving outcome on quantitative and qualitative terms..

However notwithstanding these undeniable constitutional advances, the EU recent activity is quite deceptive both in quantitative as in qualitative terms. The EU and its MS seem still in a transitional and survival phase than in the long awaited building phase of true EAFSJ.

On quantitative aspects suffice it to note that since the beginning of the legislative term less than fifty legislative proposals have been submitted and only twenty have until now been adopted (1). If this trend continues one can wonder if the European Parliament and the Council will be able to adopt in the last 18 months of this legislature all the texts currently on the table not to speak of the proposals that the Commission has announced notably from the second half of 2013.

But much more concerning are the qualitative aspects of the institutional activity in a domain which is deemed to be now the core of the European public space.

To start with some positive aspects it is more than likely that the new Common European Asylum System foreseen by the art. 78 TFEU (and by the art.18 of the Charter) will be adopted before the end of this year (2). Progress has also been achieved with the adoption of the first measures dealing with the suspect’s rights in criminal proceedings (3) as well as in the judicial cooperation in civil matters (4) and on the establishment of new Agencies (5).

These decisions have often been taken after lengthy and painful negotiations and have been accompanied by the conclusion of international agreements as happened with the EU-US TFTP and PNR agreements. However a positive assessment on the latter is not obvious and the risks has been denounced that the final outcome could still not comply with the European Charter as well as of the European Convention of Human rights standards (6). The EP rejection of the ACTA agreement (7) has confirmed that the EU institutions often do not share the same vision of the balance to be struck between freedom and security.
Continue reading “CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE”

European Union and Hungary: towards a new “Haider” case ?

(Original IT – translation still to be revised)

Hungary puts at risk the Union’s values?

”Such a change among the democratic frameworks that we did today was only done by revolutions before. […] Hungarians today have proved that there is a reason for democracy. […] Hungarians today overthrew a system of oligarchs who used to abuse their power.” The new government will be modest and humble. “ (1)

Two years later, these April 2010 Viktor Orban statements celebrating the Fidesz Party two thirds majority in Parliament following the Hungarian elections, sound now very different as it is the case for the economic forecasts following the 2010 Hungarian elections according to which such an electoral result would had made possible for the Hungarian Forint to recover from the crisis from which it had been barely saved in 2008 by the International Monetary Fund and the European Union.

Now, not only the relations between the EU and the IMF seem to have reached their lowest point (at least judging from the recent interruption of the negotiations with the Hungarian monetary authorities) but even bolder critics are emerging at European level as far as the compatibility of various initiatives of the Orban Government with fundamental rights and respect for democratic principles are concerned.

The situation is so worrying to push Guy Verohfstadt, President of the Liberal Group in the European Parliament to declare that Hungary seems not to fully respect anymore the “values” it subscribed when it joined the European Union, (“values” that the Lisbon Treaty has made even more explicit (2). Hence, according to Verohfstadt the European institutions should trigger the “alert” procedure foreseen by art. 7 par. 1 of the EU Treaty (3).

It is worth noting that such an “alert” procedure may be launched by the European Parliament itself and that it is designed to verify if “.. there is a clear risk of a serious breach“ by a Member State of the founding values of the European Union and, if such a risk exists the Council would be entitled to formally recommend the State who has lost its bearings to come back on the rights track.

Needless to say that such an “alert procedure” is very different from the “nuclear option” laid down in the second paragraph of the article 7 where the Council could even suspend a Member State voting rights if “a serious and persistent breach” of European Values has been ascertained.

Yet the mere fact of evoking the “alert” procedure has already led the European Parliament’s political groups, to position themselves as in previous cases by mirroring the political position present at national level (situation which will make difficult to reach the third majority needed in the European Parliament to vote the request the Council to address formal recommendation to Hungary).(4)

The European Parliament debate on this issue will take place during the January Plenary session in Strasbourg then the competent parliamentary committee could start its work as far as the European Commission has shown that there is ground to proceed and the Conference of Presidents of political groups consider that a formal report should be prepared following the proposal of the ALDE President Verohfstadt.

All that having being said on procedural aspects, it is worth recalling which have been the main concerns raised by the recent Hungarian initiatives.
Continue reading “European Union and Hungary: towards a new “Haider” case ?”

WikiLeaks: an increased call for transparency

WikiLeaks’ latest release of classified documents raised deep concern among the United States (US) Government and put into question whether the freedom of expression, as established in the First Amendment of the US Constitution, should be object of revision by amending the Espionage Act of 1917.

Attorney General Eric H. Holder Jr. said that a criminal investigation of WikiLeaks is continuing even after Mr. Assange, a 39-year-old Australian, was released on bail after surrendering to British authorities on 7th December in connection with a case in Sweden in which two women have accused him of rape and other sexual crimes.

In the meantime the Air Force and the Library of Congress have blocked the WikiLeaks website.

The repeated calls for criminal prosecutions to the funder of WikiLeakes raise a whole series of questions related to the most fundamental questions about freedom of expression and about what the public can know about the actions of its own government and therefore its level of accountability.

The recent US hearing on WikiLeaks, “Hearing on the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks“, which took place on the 16th December 2010 took into considerations, among others, these issues and will be therefore be the main source used for the following analysis.

The background

As of 3 January 2011, 1,997 individual cables had been released by WikiLeaks, which has planned to publish 251,287 cables, originating from 274 embassies, dating from 28th December 1966 to 28th February 2010.

According to WikiLeaks’ website the cables are divided in:

15, 652 secret

101,748 confidential

133,887 unclassified.

According to Judge Louie Gohmert the release of documents “threatens our national security, our relations with foreign governments, and continued openness from embassy officials and foreign sources”.

However, Mr. Gates while defining the leaks embarrassing, considers that they have had modest consequences for US policy, so far. Also Thomas Blanton pointed out that although most international affairs scholars consider the cables useful, so far nothing in the diplomatic cables compares to the impact on public policy in 2004 from the leak of the Abu Ghraib photographs, of the secret prisons, or the torture memos, or the Pentagon Papers’ contribution to the end of the Vietnam war.

So, although embarrassing, the cables do not represent a clear danger to the US security and, since unpopularity does not represent a crime as House Judiciary Committee Chairman John Conyers jr pointed out, it is not clear what law has been violated by WikiLeaks.

The existing difficulties in finding a shared opinion of what information is indeed sensitive and what is not, have led to the over-classification of material, as several panellists pointed out during the hearing. In particular, Thomas Blanton, Director of the National Security Archive George Washington University, stated that current and former officials estimate that between 50% to 90% of what is classified is either over-classified or should not be classified at all.

This opinion was further re-affirmed by former Governor of New Jersey Tom Kean, who commenting on the Committee on House Judiciary review on the US Government’s most sensitive records about Osama bin Laden and Al-Qaeda after 9/11, observed that 75% of what he read that was classified should not have been so. Finally, President Reagan`s National Security Council secretary Rodney McDaniel estimated in 1991 that only 10% of classification was for “legitimate protection of secrets”.

The over-classification of the U.S. government’s national security information means that thousands of soldiers, analysts and officers need access to huge quantities of classified information and this necessary access makes it impossible to effectively protect truly vital secrets, said Mr John Conyers. Harvard law professor Jack Goldsmith, who served President George W. Bush as head of the Office of Legal Counsel at the Justice Department, stated that: “a root cause of the perception of illegitimacy inside the government that led to leaking is, ironically, excessive government secrecy.” As Potter Stewart asserted “When everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.”(…) The hallmark of a truly effective internal security system would be the maximum possible disclosure (…) secrecy can best be preserved only when credibility is truly maintained.”

Of course, nobody is in favour of leaks that put people at risk. But as Mr Bill Delahunt (who serve on the Foreign Affairs Committee and had the opportunity to chair the committee on oversight) pointed out, currently there is an overwhelming over-classification of material which calls for a review of the classification procedures.

Thus, if a great amount of information which is currently classified should not have been classified in the first place, what is the liability of WikiLeaks and more in general what are the obligations that an individual not employed by the Government has towards the latter to keep its own secrets?

To answer to these questions it might be useful to compare this situation to the client-attorney relation, explained Professor Geoffrey Stone, former dean of the University Chicago Law School: “The client is free to keep matters secret by disclosing them to no one. He is also free to disclose certain matters to his attorney who is under a legal obligation to respect the confidentiality of a client’s disclosures. In this sense, the attorney is sort of like the government employee. If the attorney violates the privilege by revealing the client’s confidences say to a reporter, then the attorney can be punished for doing so. But the newspaper cannot be constitutionally punished for disseminating the information.”

However, the proposed Shield Act would amend the Espionage Act of 1917 to make it a crime for any person knowingly and wilfully to disseminate, in any manner prejudicial to the safety or interest of the United States any classified information (…) concerning the human intelligence activities of the United States or (…) concerning the identity of a classified source or informant” working with the intelligence community of the United States.” The proposed Shield Act might be constitutional as applied to a government employee who “leaks” such classified material, but it is unconstitutional as applied to other individuals who might publish or otherwise disseminate such information.

On the basis of the principle of freedom of expression, which stems from the first amendment of the US constitution states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Furthermore, the Supreme Court in the case Bartnicki v. Vopper, held that when an individual receives information from a source who has obtained it unlawfully, that individual may not be punished for publicly disseminating the information, absent the need of the highest order.

Therefore, the suppression of public speech must be the Government’s last rather than first resort in addressing a potential problem. The Government should demonstrate the existence of a clear and present danger before limiting such a right. If there are other means by which government can prevent or reduce the danger, it must exhaust those before it can even entertain the prospect of suppressing the freedom of speech.

On the contrary, Judge Ghomert was of the opinion that nowadays we are confronted with different tools of mass communication compared to the one that were foreseen when the First amendment was written and therefore the boundaries of free speech should be re-thought, so as to balance this freedom with the Government’s need to protect some information.

However, there are very good reasons for the Government to demonstrate a clear and present danger before reducing the freedom of speech and these reasons do not vary depending on different communication tools:

1) The simple fact that the dissemination of such information might in the words of the proposed Act “in any manner prejudice the interests of the United States,” does not mean that the harm outweighs the benefit of publication, as Chairman Conyers noted. 2) A case by case balancing of harm against benefit would be unwieldy, unpredictable, and impracticable. Clear rules are essential in the realm of free speech. That is why the Government has so much authority to restrict the speech of its own employees, rather than insisting that in every case the government demonstrate that the harm outweighs the benefit.

3) There are great pressures that lead both government officials, and even the public, to overstate the potential harm of publication in times of national anxiety. A strict clear and present danger standard serves as a barrier to protect us against that danger, Mr Conyers concluded.

It is evident that, in order to protect effectively real vital information, the classification system should be put under review. Indeed the leaks underline the weaknesses derived from a system not sufficiently transparent.

By focusing on prosecuting WikiLeaks, not only there is a risk of violating one of the fundamental constitutional freedom, but also there is a clear risk of limiting the right of citizens to hold accountable their own Governments democratically elected.

As Mr Delhaunt put it: “Secrecy is the trademark of totalitarism. To the contrary, transparency and openness is what democracy is about”.

LB