Category: 7.2 Irregular immigration

THE UK IMPLEMENTS EU FREE MOVEMENT LAW – IN THE STYLE OF FRANZ KAFKA

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 

Thursday, 19 March 2015

By Steve PEERS

Most laws are complicated enough to start with, but with EU Directives there is an extra complication – the obligation to transpose them into national law. A case study in poor transposition is the UK’s implementation of the EU’s citizens’ Directive, which regulates many aspects of the movement of EU citizens and their family members between EU Member States. Unfortunately, that defective implementation is exacerbated by a further gap between the wording of this national law and its apparent application in practice, and by the unwillingness of the EU Commission to sue the UK (or other Member States) even for the most obvious breaches of the law.

It’s left to private individuals, who usually have limited means, to spend considerable time and money challenging the UK government in the national courts. One such case was the recent victory in McCarthy (discussed here), concerning short-term visits to the UK by EU citizens (including UK citizens living elsewhere in the EU) with third-country (ie, non-EU) family members.  The UK government has just amended the national rules implementing the EU citizens’ Directive (the ‘EEA Regulations’) to give effect to that judgment – but it has neglected to amend the rules relating to another important free movement issue.

Implementing the McCarthy judgment

The citizens’ Directive provides that if EU citizens want to visit another Member State for a period of up to three months, they can do so with very few formalities. However, if those EU citizens are joined by a third-country family member, it’s possible that this family member will have to obtain a short-term visa for the purposes of the visit. The issue of who needs a short-term visa and who doesn’t is mostly left to national law in the case of people visiting the UK and Ireland, but it’s mostly fully harmonised as regards people visiting all the other Member States.

Although the EU’s citizens’ Directive does simplify the process of those family members obtaining a visa, it’s still a complication, and so the Directive goes further to facilitate free movement, by abolishing the visa requirement entirely in some cases. It provides that no visa can be demanded where the third-country family members have a ‘residence card’ issued by another EU Member State. According to the Directive, those residence cards have to be issued whenever an EU citizen with a third-country family member goes to live in another Member State – for instance, where a British man moves to Germany with his Indian wife. Conversely, though, they are not issued where an EU citizen has not left her own Member State – for instance, a British woman still living in the UK with her American wife.

How did the UK implement these rules? The main source of implementation is the EEA Regulations, which were first adopted in 2006, in order to give effect to the citizens’ Directive by the deadline of 30 April that year. Regulation 11 of these Regulation states that non-EU family members of EU citizens must be admitted to the UK if they have a passport, as well as an ‘EEA family permit, a residence card or a permanent residence card’. A residence card and permanent residence card are creations of the EU Directive, but an ‘EEA family permit’ is a creature of UK law.

While the wording of the Regulation appears to say that non-EU family members of EU citizens have a right of admission if they hold any of these three documents, the UK practice is more restrictive than the wording suggests. In practice, having a residence card was usually not enough to exempt those family members from a visa requirement to visit the UK, unless they also held an EEA family permit. Regulation 12 (in its current form) says that the family member is entitled to an EEA family permit if they are either travelling to the UK or will be joining or accompanying an EU citizen there. In practice, the family permit is issued by UK consulates upon application, for renewable periods of six months. In many ways, it works in the same way as a visa requirement.

An amendment to the Regulations in 2013 provided that a person with a ‘qualifying EEA State residence card’ did not need a visa to visit the UK. But only residence cards issued by Germany and Estonia met this definition. This distinction was made because the UK was worried that some residence cards were issued without sufficient checks or safeguards for forgery, but Germany and Estonia had developed biometric cards that were less likely to be forged.

In the McCarthy judgment, the CJEU ruled that the UK rules breached the EU Directive, which provides for no such thing as an EEA family permit as a condition for admission of non-EU family members of EU citizens with residence cards to the territory of a Member State. The UK waited nearly three months after the judgment to amend the EEA Regulations to give effect to it.

The new amendments cover many issues, but to implement McCarthy they simply redefine a ‘qualifying EEA State residence card’ to include a residence card issued by any EU Member State, as well as any residence card issued by the broader group of countries applying the EEA treaty; this extends the rule to cards issued by Norway, Iceland and Liechtenstein. Presumably this brings the rules into compliance with EU law on this point (the new rules apply from April 6th). That means that non-EU family members of EU citizens will not need a visa to visit the UK from this point, provided that they hold a residence card issued in accordance with EU law, because they are the non-EU family member of an EU citizen who has moved to another Member State. However, this depends also on the practice of interpretation of the rules, including the guidance given to airline staff.

‘Surinder Singh’ cases Continue reading “THE UK IMPLEMENTS EU FREE MOVEMENT LAW – IN THE STYLE OF FRANZ KAFKA”

DENMARK AND EU JUSTICE AND HOME AFFAIRS LAW: DETAILS OF THE PLANNED REFERENDUM

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Tuesday, 17 March 2015

by STEVE PEERS 

Danish participation in cross-border criminal law measures is symbolised by ‘The Bridge’, the ‘Nordic Noir’ series about cross-border cooperation in criminal matters between Denmark and Sweden. But due to the changes in EU law in this field, that cooperation might soon be jeopardised. As a result, in the near future, Denmark will in principle be voting on whether to replace the current nearly complete opt-out on EU Justice and Home Affairs (JHA) law with a partial, selective opt-out. I have previously blogged on the implications of this plan in general terms, but it’s now clear exactly what this vote will be about.

First of all, a short recap of the overall framework (for more detail, see that previous blog post). Back in 1992, Denmark obtained an opt-out from the single currency, defence and aspects of JHA law (it’s widely believed that it also obtained an opt-out from EU citizenship, but this is a ‘Euromyth’). These opt-outs were formalised in the form of a Protocol attached to the EU Treaties as part of the Treaty of Amsterdam. The JHA opt-out was then amended by the Treaty of Lisbon.

At present, Denmark participates in: the EU policing and criminal law measures adopted before the entry into force of the Treaty of Lisbon; measures relating to the Schengen border control system (as  matter of international law, not EU law); the EU rules on visa lists (as a matter of EU law); and the EU’s Dublin rules on allocation of asylum applications, ‘Brussels’ rules on civil jurisdiction and legislation on service of documents (in the form of treaties with the EU). In contrast, Denmark does not – and cannot – participate in other EU rules on immigration and asylum law or cross-border civil law, or policing and criminal law rules adopted since the entry into force of the Treaty of Lisbon.

The Protocol on Denmark’s legal position either allows it to repeal its JHA opt-out entirely, or selectively. If it chooses to repeal the opt-out selectively, it would then be able to opt in to JHA measures on a case-by-case basis, like the UK and Ireland, although (unlike those states) it would remain fully bound by the Schengen rules. Indeed, those rules will then apply as a matter of EU law in Denmark, not as a matter of international law. Continue reading “DENMARK AND EU JUSTICE AND HOME AFFAIRS LAW: DETAILS OF THE PLANNED REFERENDUM”

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

ORIGINAL PUBLISHED ON EU LAW ANALYSIS blog

BY Steve Peers

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

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

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

Background

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

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

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

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

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

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

Consequences

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

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

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

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

Broader context

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

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

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

 

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

 

Image credit: nytimes.com

Barnard & Peers: chapter 25

Posted by Steve Peers at 23:48 No comments:

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

Friday, 6 February 2015

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

 

Steve Peers

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

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

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

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

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

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

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

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

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

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

 

Barnard & Peers: chapter 9, chapter 20

Trafficking in Human Beings: the EU legislates but the Member States keep dragging their feet…

by Federica VIGNALE (Free Group Trainee)

Since more than ten years Trafficking in Human beings is a recurrent issue on the agenda of the European Parliament Committee on Civil Liberties, Justice and Home Affairs. The last debate [i] was notably focused on the Commission Mid-term report on the 2012-2016 EU strategy towards the eradication of trafficking in human beings and the Global Report on Trafficking in persons of United Nations Office on Drugs and Crime.

Trafficking in Human Beings (THB) is recognized by the European and the international law as a gross violation of human rights and as a form of organized crime[ii]. At European level, THB is defined as “the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”. Furthermore, due to the presence of these forms of violence or coercion, trafficking in human beings represents also a form of modern slavery. Currently there are tens of thousands potential people who are kept in captivity or forced to provide services against their will, but there are some people who were lucky enough to have been identified.

In this respect and before analysing the European and the international legal context, it is worthwhile analysing the data related to victims and traffickers that emerge from the Trafficking in Human Beings Report that the DG Home Affairs and Eurostat published on the occasion of the EU Anti-Trafficking day anniversary. Between 2010 and 2012, 30.146 people were registered by the authorities, but this number is more alarming if we consider that there are certainly other victims of THB that have not been registered. The above-mentioned Report indicates also that:

  • “80 % of registered victims were female.
  • Over 1 000 child victims were trafficked for sexual exploitation[iii].
  • 69 % of registered victims were trafficked for sexual exploitation.
  • 95 % of registered victims of sexual exploitation were female.
  • 71 % of registered victims of labour exploitation were male.
  • 65 % of registered victims were EU citizens.
  • There are no discernible trends in the variation of victim data at EU level over the three reference years.
  • 8 551 prosecutions for trafficking in human beings were reported by Member States over the three years 2010-2012.
  • Over 70 % of traffickers were male. This is the case for suspects, prosecutions and convicted traffickers.
  • 3 786 convictions for trafficking in human beings were reported by Member States over the three years.
  • There are no discernible trends in the number of prosecutions or convictions at EU level”.

Two thirds of the victims are from the countries within the EU (Romania, Bulgaria, the Netherlands, Hungary and Poland), and the rest of the victims are primarily from Nigeria, China, Vietnam, Brazil and Russia. These figures are extremely worrying, especially because – in terms of legislation – the EU has built a very ambitious legal framework that consists of: Continue reading “Trafficking in Human Beings: the EU legislates but the Member States keep dragging their feet…”

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

by Emilio DE CAPITANI

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

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

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

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

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

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

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

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

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

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

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

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

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

Background

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

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

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

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

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

Retention period

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

Inclusion of intra-EU flights

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

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

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

ANNEX

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

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

Whereas:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS

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

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

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

CHAPTER II RESPONSIBILITES OF THE MEMBER STATES

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

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

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

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

12 OJ L 105, 13.4.2006, p. 1.

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

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

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

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

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

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

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

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

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

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

CHAPTER IV IMPLEMENTING MEASURES

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

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

CHAPTER V FINAL PROVISIONS

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

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

Article 18 Statistical data

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

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

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

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

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

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

Original Published HERE

Introduction

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

Free Movement Law

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

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

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

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

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

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

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

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

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

Future of EU migration, home and justice policies. Some questions to the new candidates commissioners..

by Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be Commissioners for immigration and home affairs and Justice will shortly be questioned by Members of the European Parliament (MEPs) in hearings, to determine whether the EP should vote to confirm them in office. MEPs have already asked some written questions and the would-be Commissioners have replied. Since most of the written questions were not very searching (except for a couple of questions on data protection issues), the Commissioners did not reply in much detail. However, the hearings are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments, in these fields. To that end, we have therefore suggested a number of oral questions which MEPs should ask in the hearings.

Immigration and asylum

The Commission consider that migration policy should be framed by the (non binding) objectives of the global approach to migration (GAMM) and relations with third countries should be dealt with by “Mobility Partnership” which are more diplomatic declarations than binding acts. Would you propose a binding legal basis for treaties with the countries concerned, grounded on Articles 77, 78 and 79 of the TFEU?

What actions will the Commission take to ensure that EU legislation in this field is fully and correctly implemented by the Member States?

Will the Commission propose an immediate amendment to the EU visa code, to confirm that Member States are obliged to give humanitarian visas to those who need them and who apply at Member States’ consulates in third countries?

When will the Commission propose EU legislation to guarantee mutual recognition of Member States’ decisions regarding international protection, including the transfer of protection?

When will the Commission make proposals for a framework for sharing responsibility for asylum-seekers and persons who have been granted international protection, starting with those who have applied outside the territory of the Member States?

Will the Commission propose an immigration code, and what will its main contents be?

The Court of Justice has recognised that search and rescue obligations are interlinked with external borders surveillance (Case C-355/10). The EU adopted rules in this field which governing only border control coordinated by Frontex. Do you intend to propose that such rules should apply to all Member States’ border controls as a general rule, by formally amending the Schengen Borders Code ?

What immediate and longer-term steps will the Commission take to address the death toll of migrants crossing the Mediterranean?

Will the Commission propose to amend the EU legislation on facilitation of unauthorised entry to confirm that anyone who saves migrants from death or injury during a border crossing, or who otherwise acts from humanitarian motives, is exempt from prosecution?

Internal Security and Police cooperation Continue reading “Future of EU migration, home and justice policies. Some questions to the new candidates commissioners..”

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

ORIGINAL PUBLISHED ON EU LAW ANALYSIS HERE

Written by Steve PEERS

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

Facts and judgment

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

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

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

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

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

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

Comments

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

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

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

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

The Missed Opportunity of the “Ypres Guidelines” of the European Council Regarding Immigration and Asylum

Written by Philippe De Bruycker on July 29, 2014.
ORIGINAL Posted in EU, EU Migration Policies

The European Council of 26 and 27 June 2014 had to define the strategic guidelines for the legislative and operational planning within the Area of Freedom, Security and Justice for the next period (2014-2020 in line with the EU financial perspectives). It did so by also adopting a “Strategic Agenda for the Union in times of change” consisting of five priorities among which was a “Union of Freedom, Security and Justice”.

As no other name had been used, we called them the “Ypres Guidelines” because this was the Belgian city chosen by the President of the European Council to hold the summit commemorating World War 1. The Ypres guidelines succeed the Tampere conclusions (1999), The Hague programme (2004) and the Stockholm programme (2009) with which the European Council laid down the foundations and indicated the main directions for the development of the Area of Freedom, Security and Justice.

The preparatory discussion of these guidelines took place in a climate in which most stakeholders and observers considered that times have changed and a new programme was no longer necessary because the Area of Freedom, Security and Justice had reached a stage of maturity with the adoption of many legal and policy instruments. Following that line, the emphasis had to be put on the correct transposition of EU directives and the effective implementation of the instruments in place. The new guidelines reflect that priority but their added value is extremely limited. They constitute mainly a collection of previous general statements without commitment, as is the case with the guidelines on integration, return, resettlement, Frontex and the link between the internal and external dimensions of the immigration and asylum policy.

Even guideline n°3 on the main priority relating to the transposition and implementation of existing instruments is rather weak as it is silent on the crucial issue of how they should be evaluated and could therefore remain dead letter, which has already been the case in the past (see in particular a Commission Communication of 28 June 2006 followed by Council conclusions of 19 June 2007 , which were never implemented).

Contrary to guidelines n°8 on irregular migration and n°9 on external borders, one will also notice that guidelines n°6 and 7, on legal migration and asylum respectively, are not accompanied by specific requests. This reflects the true priorities of the EU and puts into evidence the disequilibrium between the different components of its migratory policy.

Despite their weaknesses, the Ypres guidelines may generate a lively academic debate as shown by the complete opposition between our own analysis and that of the Ceps, overestimating from our point of view their content considered as “a subversion of (a so-called) Lisbonisation of Justice and Home affairs”.

A quick review of the more specific guidelines leads us to formulate the following remarks:

Guideline n°7 focuses on highly skilled migration without requesting a revision of the so-called “Blue Card” directive on the admission of highly skilled workers like the new President of the Commission rightly did immediately. The implicit consideration that the EU does not need low or unskilled migration is also questionable when looking at the number of illegal migrants working in the European Union;

Guideline n°8 on asylum is characterised by a narrow understanding of the Common European Asylum System (CEAS) reduced to the harmonisation process of Member States’ legislations and by the willingness to give asylum seekers the “same procedural guarantees and protection throughout the Union”, which, contrary to the general assumption on which the guidelines are built that no new legislation is necessary, would require legislative changes to the existing norms.

This guideline is however visionary by requiring a reinforcement of the European Asylum Support Office (EASO) at the core of the emerging bottom-up approximation process of Member States’ practices, which is indispensable to complete the top-down legislative harmonisation undertaken in order to build a truly Common Asylum Policy. But this will once again require amending regulation 439/2010, which is the legal basis of the EASO… Reference to the mutual recognition of positive asylum decisions has unfortunately been deleted despite the requirements of the Treaties. This actually shows the level of distrust between the Member States;

Curiously, guideline n°8 on irregular migration mixes the root causes approach of migration with cooperation with third countries of origin and of transit of migrants in the field of migration and border management, while it is certainly necessary to prioritise the fight against smuggling and not just trafficking as has been the case. The worst point is the link established between those elements and the diminishing loss of lives of migrants in the Mediterranean. The European Council hopes that, in this way, it will save lives in the future, but for the moment and for many years, if not decades, to come it actually leaves the migrants to drown alone in the sea…

Guideline n°9 on external borders expresses the support of the European Council for the creation of the “Smart Borders” databases (the entry-exit system and the registered traveler programme) – which is not neutral as this is still a controversial issue (in particular with the European Parliament) – as well as support for the reinforcement of Frontex, which shows the contradictions between the European policies because the budget of this agency decreased between 2013 and 2014;
The second part of guideline n°9 on visas reflects the recent change in the perception of this policy in economic terms and requires its modernisation by facilitating legitimate travel. Unfortunately, the European Council only envisages a reinforcement of the local cooperation between the Schengen consulates, while it is the missing European institutional framework of that policy which needs to be invented;

It is difficult not to be disappointed by the Ypres Guidelines, on which it has been easy to build a consensus because they lack real content as noticed by another watchful observer of the EU policies on migration and asylum.

Their lack of ambition is confirmed in comparison with the proposals put forward by the Commission in a Communication entitled “An open and secure Europe: make it happen” of 11 March 2014, envisaging among other elements a platform for the exchange of information between Member States on labour market needs, a single area of migration based on mutual recognition rather than harmonisation and the creation of Schengen Visa Centres. Let us not even speak of future challenges that have been insufficiently taken into consideration, such as the concrete implementation of the principles of solidarity and fair sharing of responsibilities between Member States, or even completely ignored, such as the mobility of third-country nationals.

The Ypres guidelines could be a paradoxical turning point with no guidance given by the European Council at the moment it proclaims the Union of Freedom, Security and Justice as one of the top five priorities of the EU. This draw-down of the European Council is not neutral from an institutional point of view.

The Commission could be seen as the winner of the process because, with such guidelines, its new members will be freer than they have previously been to set the future agenda of the EU. This could, however, be a pyrrhic victory as the Commission may have lost the political support of the European Council it precisely needs in its daily face to face with the Council of Ministers for Justice and Home Affairs, which has until now been the more reluctant institution in the building process of the Area of Freedom, Security and Justice.

Let us hope that this episode does not announce the beginning of the decline of EU immigration and asylum policies , which could enter into a phase of stagnation focused on daily business despite the twists and turns they may create on the political agenda because of the media coverage of some events.

The fact that the question “What to do now?” came up immediately after their adoption shows not only the absence of real content in these guidelines, but also that the moment chosen for their adoption was not the right one.

Despite the protests of the European Parliament, the European Council decided to maintain its agenda as foreseen, with the consequence that the guidelines were prepared by a Commission and a President of the European Council who were finishing their mandate, and without a Parliament able to contribute to the process because of the elections.

The publication by the EU Italian Presidency on 1 July 2014 of several papers to reflect on the priorities of the Union of freedom, security and justice confirms that the Ypres guidelines will probably be quickly forgotten.

The new Commission, particularly as one of its members will be specifically in charge of migration, could be tempted to present a brand-new and complete programme. It is, however, unlikely that the Member States would appreciate the Commission devising its own programme for the EU just after having been told that such technique was outdated. Therefore, one way out could be to elaborate on the basis of the Ypres guidelines with a much more complete and detailed action plan to be adopted jointly with the Council of Ministers, such has been the case with the action plan implementing The Hague programme. This would also be an occasion to involve more closely the new European Parliament and the members of its Libe Committee in the definition of the agenda in order to build an inter-institutional consensus around sensitive policies that need as much political support as possible.

By Prof. Philippe De Bruycker, Deputy Director of the Migration Policy Centre at the RSCAS/EUI The views expressed by the authors are not necessarily the views of the Migration Policy Centre.

Steve PEERS : The UK opt in to pre-Lisbon EU criminal law

ORIGINAL Published on Statewatch : analysis by Steve Peers Professor of EU Law and Human Rights Law, University of Essex
July 2014

Introduction

The United Kingdom (UK) has exercised its power to opt out of all of the EU measures on policing and criminal law adopted before the Treaty of Lisbon (‘pre-Lisbon third pillar measures’), but has also sought to opt back into a number of these measures. That application to opt back in has recently been agreed in principle. What will be the impact of these changes for the UK’s participation in EU policing and criminal law?

The Legal Framework

Before the entry into force of the Treaty of Lisbon, the UK was a full participant in almost all EU policing and criminal law measures. The exception was a small part of those measures ‘building on the Schengen acquis’, ie measures set out in, or amending, implementing or closely related to the Schengen Convention on the abolition of border controls. Most of those Schengen-related measures applied to the UK from the start of 2005, except for the rules on cross-border hot pursuit by police officers (which the UK did not opt into) and the rules on the Schengen Information System (SIS) database (because the UK wanted to wait until a second-generation SIS was operational first, and this didn’t happen until 2013).

The Treaty of Lisbon changed the legal framework for the adoption of EU policing and criminal law, applying to this field the normal jurisdiction of the Court of Justice of the European Union (CJEU) and, for the most part, the ordinary legislative procedure of the EU, which entails joint powers for the European Parliament and no vetoes for Member States in the Council.

The UK would only agree to these major changes in return for two forms of opt-out. The first opt-out relates to policing and criminal law measures adopted after the entry into force of the Treaty of Lisbon. This opt-out allows the UK to decide on a case-by-case basis, after each proposal is made, whether it seeks to opt in or out. If the UK initially decides to opt-out, it can always seek to opt in again (needing the Commission’s approval) at any time after the measure is adopted.

The second form of opt-out takes the form of a ‘block’ opt-out for those measures adopted before the entry into force of the Treaty of Lisbon. This is intrinsically linked to a five-year transition period concerning those measures, which is applicable to all Member States.

This second opt-out is set out in Article 10 of Protocol 36 to the Treaties, which is set out in full in Annex I. The Article states first of all that the normal powers of the Court of Justice of the European Union (CJEU) and the Commission will not apply for five years after the entry into force of the Treaty of Lisbon, to pre-Lisbon third pillar measures. This means that the Commission does not have power to bring infringement procedures against Member States to the CJEU during this time. Nor does the CJEU have jurisdiction over questions from national courts concerning EU law in this area, except where Member States chose to opt in to this jurisdiction (18 Member States have opted in, and the Court has delivered a number of judgments in this field). Also, the transitional rules cease to apply to an act which is amended after the Treaty of Lisbon comes into force, and a number of such acts have indeed been amended. This transitional period ends on 1 December 2014.

Secondly, Article 10 of Protocol 36 sets out a potential opt-out for the UK (but not for any other Member States) at the end of this five-year period. If the UK notifies the Council by 1 June 2014, all the pre-Lisbon third pillar acts cease to apply to it as of 1 December 2014, unless those acts have been amended and the UK has opted in to those amended measures. In this event, the Council shall decide the ‘necessary consequential and transitional arrangements’, and may also decide that the UK has to ‘bear the direct financial consequences, if any, necessarily and unavoidably incurred’ as a result. In both cases, the Council acts by a qualified majority vote on a proposal from the Commission. The UK does not participate in the first of these measures (consequential arrangements), but would participate in the second (financial consequences).

Thirdly, the UK can seek to opt back into to some of the measures it has opted out of ‘at any time afterwards’. If it does so, then the rules for opting into Justice and Home Affairs measures in either the Protocol on the Schengen acquis or the Protocol on Title V (JHA measures) apply. In practice, that means that the Council, acting unanimously, decides on re-admission of the UK to measures building on the Schengen acquis (ie measures set out in, or amending, implementing or closely related to the Schengen Convention on the abolition of border controls), while the Commission (with no role for the Council, unless the Commission refuses the UK’s request) decides on readmission of the UK to pre-Lisbon third pillar measures which do not build on the Schengen acquis. The Protocol concludes by stating that in such a case, the EU institutions and the UK ‘shall seek to re-establish the widest possible measure of participating of the [UK] in the aquis 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’.

The block opt-out in practice

The UK government indicated in 2012 that it was inclined to invoke the block opt-out, and then seek to opt in to a number of measures. In 2013, it officially invoked the block opt-out (well before the deadline of 1 June 2014), and indicated the 35 measures which it wished to opt back into. Informal negotiations then took place between the UK, the Council and the Commission, in particular during the Greek Council Presidency in the first half of 2014. The discussions were complicated somewhat by the UK’s request to begin participation in the second-generation SIS (known as SIS II) shortly before 1 December 2014, along with its request to amend the rules relating to SIS II alerts on the European Arrest Warrants in accordance with new EU legislation.

Following these negotiations, the UK has agreed in principle with both the Council and Commission on what it will opt back into. In theory, the Council and Commission decisions will both be adopted officially on 1 December 2014, unless there is some change of heart within one or both institutions.

The agreement with the Council takes the form of a draft Decision, which amends the original Council Decision admitting the UK to participate in parts of the Schengen acquis, as well as the later Council Decision putting part of the Schengen acquis into force in the UK. Annexes II and III to this analysis set out versions of these Council Decisions, which shows how their texts will be amended (the Council will later publish its own codified text of the amended Decisions).

The crucial substantive point here is that the UK will continue to be committed to participating in the Schengen Information System, which provides for exchange of information on European Arrest Warrants, wanted persons and missing objects. It will also continue to be bound by the main criminal law and police cooperation provisions of the Schengen acquis.

As for the other measures, the Commission has reported back on its discussions with the UK, providing a list of measures agreed with the UK. This constitutes almost all of the EU measures on mutual recognition in criminal matters (most notably the European Arrest Warrant), the creation of EU agencies (Europol, Eurojust) and exchange of information or databases, with a few exceptions: the Framework Decisions on mutual recognition of pre­trial decisions and probation and parole decisions, and the so-called ‘Prum’ Decisions on cross-border exchange of information on DNA, licence plate information and fingerprints.

It appears that there has been a modest amount of negotiation on the lists of measures which the UK sought to opt out of. As regards the Council Decision, one measure on the operational functioning of the SIS has been added to the list. The Commission’s deal with the UK includes a decision to opt in to three measures implementing the Europol Decision, as well as the Decision establishing the European Judicial Network. These additional measures which the UK agreed to opt in to are essentially technical, except for the European Judicial Network, which the UK government believes is essentially a useless talking shop.

Also, it should be noted that some pre-Lisbon measures were amended while discussions were going on, in particular the EU’s Convention on mutual assistance in criminal matters and its amending Protocol. The UK did not want to opt back in to these measures, but this objection is now moot, since the UK participates in the EU Directive on the European Investigation Order, which has replaced some of the corresponding provisions of those measures. So this means that it will continue to participate in the Convention and Protocol, without having to opt back in.

Furthermore, the UK government agreed to consider opting in to further measures in future. These include the two Prum Decisions on exchange of information, by 1 December 2015. If the UK does not opt in, it has agreed to repay some EU funds which it received for the purpose of preparing to participate. The other measure which the UK has agreed to consider joining is the Framework Decision on mutual recognition of probation and parole measures. On this measure, there is no reference to any deadline for review.

In effect, it will fall to the next UK government to decide on these issues (the next general election will be in May 2015). It will always be open to the UK government to opt back in to more measures if it wishes.

However, the UK government withdrew its request to participate in two measures (a Decision on a hate-crime network, and a Decision on special police intervention units) during the discussions. This decision may well have been taken so that the government can still claim that it is only opting back in to a total of 35 measures.

It should also be noted that the UK’s opt back in to some of the pre-Lisbon measures concerned could be very short-lived, since there are proposals to replace these measures which the UK has opted out of, but which have not yet been agreed. This is the case particularly with Europol and Eurojust. Negotiations are further advanced on the Europol proposal, where it looks as if the UK’s concerns may have been addressed, with the consequence that the UK would opt in to the future Europol Regulation after its adoption. However, it is too early to say if the UK might eventually opt in to the future Eurojust Regulation.

Finally, it should be noted that the UK’s attempt to opt in to SIS II only a few weeks before the general opt-in decisions, coupled with its demand for special treatment on this issue, failed, as previously documented in a Statewatch analysis. While the UK failed to get its way on that issue, it appears to have been largely successful in opting back into exactly what it wished to opt back in to.

Other transitional issues

Finally, the EU institutions will aim to clarify the legal position generally as from the end of the transition period. They will publish in the EU Official Journal a list of ‘Lisbonised’ measures, ie pre-Lisbon third pillar acts which have been amended since the Treaty of Lisbon entered into force. Also, the institutions had intended to consider which pre-Lisbon measures could now be considered obsolete, and which therefore could be repealed. But it appears that this latter process has not yet taken place.

The net result is a rather confusing situation, both in terms of the complexity of the EU ‘acquis’ in this area and of the UK’s role in it. There will be a complete list published of pre-Lisbon measures which are not yet Lisbonised, but no step has been taken (or can now be taken in time, before the end of the transitional period) to pull out the legal weeds from this garden. There will be two separate Decisions listing pre-Lisbon measures which the UK has opted back into, but it would also be useful to have a list of post-Lisbon measures which apply to the UK. It would not unduly task the Council and/or Commission to make the effort to publish online a constantly updated list of the measures which do or not apply to the UK (as well as Ireland and Denmark, which also have opt-outs), and five years was certainly enough time to examine the pre-Lisbon acquis to see which measures were obsolete.

Documentation

UK notification of opt-out: Council document 12750/13: http://www.statewatch.org/news/2014/jul/eu-council-Prot36-uk-notification-12750- 13.pdf
Draft Council decision on UK opt back in to Schengen acquis: Council document 10115/14
http://www.statewatch.org/news/2014/jul/eu-council-Prot36-6-draft-decision-schengen-acquis-10115-  14.pdf
Commission report on negotiations with UK on opting back in: Council document 10168/14: http://www.statewatch.org/news/2014/jul/eu-council-Prot36-9-art10-com-10168-14.pdf

Overview of opt-in process: Council document 10167/14:
http://www.statewatch.org/news/2014/jul/eu-council-Prot36-8-Art10-complementary-report-10167-14.pdf
List of pre-Lisbon third pillar measures which have been ‘Lisbonised’, or which are the subject of a proposal to ‘Lisbonise’ them: Council document 9930/14: http://www.statewatch.org/news/2014/jul/eu-council-Prot-4-lisbonised-third-pillar-acquis-9930- 14.pdf
UK SIS II discussions: http://www.statewatch.org/analyses/no-241-eu-uk-opt-out.pdfPrevious Statewatch Analyses:
The UK opt-out from Justice and Home Affairs law: the other Member States finally lose patience (March 2014): http://www.statewatch.org/analyses/no-241-eu-uk-opt-out.pdf
The UK’s planned ‘block opt-out’ from EU justice and policing measures in 2014 (October 2012): http://www.statewatch.org/analyses/no-199-uk-opt-out.pdf
The Mother of all Opt-outs? The UK’s possible opt-out from prior third pillar measures in June 2014 (February 2012):
http://www.statewatch.org/analyses/no-168-eu-uk-opt-out.pdf

Annex I – Protocol 36, Article 10
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.

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.

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.

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.

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 re­establish 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.

Annex II

Codified version of Council Decision on UK participation in Schengen acquis Additions in bold/underline; deletions in strikeout
Council Decision of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (2000/365/EC)

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