Category: 7. Immigration policies

Some questions to the candidate High Representative for external relations (Federica Mogherini)

By Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be High Representative for the Common Foreign and Security Policy and Commission Vice President for external relations (Mogherini) will  questioned in the next two days by Members of the European Parliament (MEPs), to determine whether the EP should vote to confirm her in office. MEPs have already asked some written questions and the would-be Commissioners have replied. However, the oral hearings which will shortly take place are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments.

The following are suggested questions on institutional issues, although of course MEPs should also ask questions on the substance of EU foreign policy.

QUESTIONS TO HIGH REPRESENTATIVE CANDIDATE MOGHERINI

1 External Internal Security Policy

In your written answer you claim the need of a consistent and global approach to external and internal security. However, legally these two dimensions have been artificially separated in the Treaties by a disconnection clause (art.40 of TEU) [1] according to which the external security will remain intergovernmental. This means that consensus between the 28 Member States will remain the main rule, there are no legislative powers and the Court of Justice has no full judicial oversight. Bearing in mind these flaws of the EU external security policy (also from the point of view of the democracy principle and of the rule of law) would not be better to achieve some of your goals by building them on the external dimension of “internal” policies (such as protection of borders, migration, judicial and police cooperation)? If so qualified majority will be the rule and external agreements will be approved by the EP (as already happened with some EU-US agreements) and EU acts will be under the control of the Court of justice…

2.Solidarity clause in case of terrorist attack or natural or man made disaster (art. 222 TFEU)

On a joint proposal of your predecessor and of the Commission on 24 June 2014 the Council adopted thearrangements for the implementation by the Union of the solidarity clause (art 222 TFEU)  to be activated  if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The text has been adopted without associating the EP and moreover it does not foresee any structured information of the European Parliament on the way in which threats are defined and monitored, not even in the case that such an event occurs. However even if the Treaty does not impose a requirement to provide this information nothing would had prevented the Council from  foreseeing it on its own initiative also because it would be bizarre that the members of the EP discover a terrorist attack from the press rather than from institutional channels. Will you propose an amendment to that Decision by recognising an adequate space for the EP?

3.Global Approach to Migration and mobility partnership as a binding act

As you rightly say in your written answer, EU development policy and international agreements could be the answer to address the root causes of displacement. However the Global Approach of Migration and the mobility partnership are only diplomatic instruments and are meaningless if not framed as full international agreements. Should they be transformed into legal binding acts (both for third countries and the EU and its Member States) and be accompanied by formal EU agreements with the relevant UN Agencies (UNHCR, IOM) tasking (and financing) them for the interventions in third countries? Continue reading “Some questions to the candidate High Representative for external relations (Federica Mogherini)”

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..”

La nouvelle Commission Juncker et la JAI : que tout change pour que rien ne change ?

by Henri LABAYLE (CDRE)

Original published HERE

La composition de la nouvelle Commission a suscité nombre de commentaires dans les médias, souvent bienveillants sinon flatteurs. L’a priori favorable dont bénéficie son Président, Jean Claude Juncker, n’empêche pas de douter de leur bien-fondé en matière de Justice et d’affaires intérieures, à supposer d’ailleurs que ces commentaires se vérifient dans les autres domaines d’action de l’Union.

Après des discours encourageants semblant indiquer que les thèmes des valeurs de l’Union et de l’urgence migratoire avaient été pris en considération par le programme du candidat à la Présidence, le retour à la réalité est moins enthousiasmant. Sans procès d’intention, il faut se résoudre à penser que, non seulement le changement ici aussi n’est pas pour maintenant, mais qu’il n’est pas davantage dans l’esprit des dirigeants de l’Union.

On fera litière d’abord des éléments de communication habilement distillés dans les rédactions des grands médias européens, notamment via un document de presse intelligemment construit. En résumé, la nouvelle Commission serait aujourd’hui un animal « politique », par opposition à sa composition technocratique précédente. Cette option est résumée ainsi par son président : « les commissaires ne sont pas des fonctionnaires ». Est-on bien certain que l’inverse n’est plus vrai ?

Soit, même si à l’examen il est aisé de se rendre compte que nombre de ces politiciens ont plutôt leur avenir politique derrière eux (5 anciens premiers ministres, 4 vice-premiers ministres, 19 anciens ministres, 7 commissaires sortants, nous dit-on), à supposer parfois qu’ils en aient eu un. Reste alors l’habileté manœuvrière qui, si l’on se penche plus précisément sur la JAI, réclamera vraisemblablement davantage de solliciter celle de Jean Claude Juncker que de compter sur le dispositif proposé.

Quelle délimitation des composantes de l’Espace de liberté ?

Continue reading “La nouvelle Commission Juncker et la JAI : que tout change pour que rien ne change ?”

The new Juncker  Commission: an “Echternach procession” for the freedom security and justice agenda ?

by Emilio DE CAPITANI

Text Updated on September 11, 2014 

1. Jean-Claude Juncker, President-elect of the European Commission which should start working from November 1st has unveiled today its team, its main priorities and its new method. As far as the Freedom security and justice area related policies are concerned there are some interesting and some worrying messages arising notably from the “mission” letters sent to the vice-president and to the two Commissioneers which will be in charge of this sensitive domain.

Vice President Timmermans :the “right hand” of the King ?

2. The most interesting (and promising?) is the fact that the respect for the rule of law and of the Charter will be the main mission of the first vice President (M. Timmermans) who will be the “right hand”  of the Commission President and who will have a veto power on the legislative initiatives presented by anyone of the members of the College.

3. The future will tell us if the Vice Presidents coordinating role will be a serious one (as the Juncker formula seems to suggest) or will only be a cosmetic formula as it was when under the Prodi Commission, for the first time this organisational model was launched. For the VP it will not be an easy task as it will not be served by a General Directorate. Within an institution where more than 80% of the decisions are taken by written procedure and where the real coordination/negotiation is done at head of Cabinet’s level the lack of administrative troops could be a serious handicap. That having been said it is more than likely that VP Timmermans will be supported by the Commission Secretary General and by the Legal Service (even if both are directly linked to Mr Juncker). Again who between them will be the real leader is still to be verified.

Three steps forward…

4. Unlike his predecessor Sefcovic in the Barroso Commission who was also in charge of the “Better Regulation” policy Vice President Timmermans should ensure that every Commission proposal or initiative will comply with the Charter of Fundamental Rights. Moreover the mission letter fix a six months deadline to revise the consistency of the current legislation and states that  the new Vice President should “ensure that every Commission proposal or initiative complies with the Charter of Fundamental Rights”. Maybe this is a positive consequence of the fact that the Court of Justice does no more hesitate from striking down EU legislation when in contrast with the Charter (as it has been the case for the recent Data Retention Ruling). However some hot potatoes are already on the table such as the EU-PNR or the Smart Border package (Entry-Exit and registered traveller program) which will be hard to consider compliant with the principles of non discrimination and of data protection as outlined by the CJEU.

5. Moreover the mission letter establish a six months term to revise the legislation to be “RE-FITTED” in compliance with the new criteria set by President Juncker. Again, it will not be easy as already one month after the envisaged entry into force of the new Commission will end the transitional period for hundred measures in police and judicial cooperation adopted before the entry into force of the Lisbon Treaty (European Arrest Warrant, Prum Decisions and several framework decisions…) without any serious impact evaluation on fundamental rights.

6. VP Timmermans will also be in charge the accession of the EU to the ECHR and of the coordination of the Commission’s work related to the Rule of Law as well as on the Cooperation and Verification Mechanism for Bulgaria and Romania. These tasks in the previous Barroso Commissions were very often treated only at the legal service level and raise at political level only in very exceptional cases (as it has been the case with Hungary). The fact that the Juncker  Commission does not intend to hide under the carpet the tensions which could arise with some Member States when the rule of law is at stake (even if  this “..is also an area where we need to be sensitive to the diversity of constitutional and cultural traditions in the 28 Member States”) should then be welcome.

7. Again, unlike his predecessor Sefcovich, the new first vice president  Timmermans will also “.. guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs” and will “manage and coordinate the participation of the Commission in the Justice and Home Affairs Council“ which means that coordination will not be avoid formula. Let’s hope that thanks  to this coordinating role the tensions which have arisen between the two commissioners on Home and Justice in the previous legislature will remain a thing of the past.

..and two steps back..

8. That having been said the message arising from the missions of the two candidate Commissioners in charge of Justice, Home affairs and migration is more ambiguous.

9. First and foremost the mission of the Justice minister  which was in the previous mandates focused on the core of judicial cooperation in criminal matters (as it is the case in the Member states) is now much more oriented to civil justice, consumer protection and ..the digital market. These are all important issues but not exactly the core of the Justice policy which, in the Juncker vision looks ancillary  even to “…our jobs and growth agenda, including through an assessment of the performance of judicial systems in the context of the European Semester of economic policy coordination.” Is the new Commission afraid (as the European Council in its recent guidelines) of the judicial area of criminal law ?  In theory this should not be the case because the Justice Commissioner will also be in charge of “all the Commission’s work in criminal matters and reinforcing judicial cooperation in this field. Putting an independent European Public Prosecutor’s Office in place by 2016 will be a significant step forward to protect the EU budget from fraud.”

10. However this declaration is contradicted by the mission of the Commissioner in charge of  “Migration and Home Affairs” who should “robustly address the challenge of irregular migration”,  “step up the fight against cross-border crime and terrorism” and focus “… on the fight against crime with a clear link to EU policies, such as human trafficking, smuggling and cybercrime and helping to tackle corruption, also by strengthening police cooperation”.

11. Do all these objectives fall outside judicial cooperation in criminal matters ? Will the Home Commissioner be in charge of the future legislation on euro crimes as it has been the case already in the previous Barroso Commission when the legislative proposal on trafficking of human beings, confiscation , and sexual abuse have been proposed by the Home Commissioner instead of the Criminal Justice commissioner ?

11. Instead of a patchwork of partially overlapping competencies in criminal law would had not been much wiser to link more clearly the competencies of the two “operational” commissioners to the relevant legal basis in the Treaty (where judicial cooperation in civil and criminal matters are dealt by articles 81-86 and  police cooperation is dealt with by articles 87-89) ?

12. But the worst suprise is the confirmation of the link between  police cooperation and migration policies. Why migration is still considered a threat for the European Union so that it has to be dealt by the Ministry of interior ? Would not had been better to link the announced “new” portfolio of migration policy within the neighbouring policy or with the social policy or even to a new objective of “human mobility” where as it happens within the Schengen cooperation the right to freedom of movement of EU citizens and third country nationals are de facto coming closer  ?

13. The real outcome of the current configuration is a the growing role of the EU homeland security policy which will not only drive most of the future  legislation in criminal matters but will also drive (or be driven by?) the EU external security policy which still remain the main intergovernamental policy area after the Treaty of Lisbon. Last but ,ot least DG Home will now  manage some hundreds of millions of euros of research in the security domain.

14. Would had not been more logic (and compliant with the EU Charter) bringing together police and judicial cooperation under a rule of law perspective (as it is the case in the European Parliament with the LIBE committee) instead of creating spurious links between consumers policy with criminal justice and police cooperation with migration.

15. Moreover is the latter still considered a threat for the European Union to continue to be dealt by the Ministry of interior ? Would not had been better to link the announced “new” portfolio of migration policy with the neighbouring policy or with the social policy ?

16. Even the best of the Vice president will not be able to right up something which has been so badly designed and which mirror a typical Luxembourg procession in Echternach where people advance by making three step forward and …two step back.

———————-

ANNEX (text emphasized by me)

First Vice-President Frans Timmermans(150 kB)

10 September 2014

Jean-Claude Juncker, President-elect of the European Commission

Mission letter for  Frans Timmermans: First Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights

Dear Frans,

You are becoming a Member of the new European Commission at a particularly challenging time for the European Union. With the start of the new Commission, we have an exceptional opportunity, but also an obligation, to make a fresh start, to address the difficult geo-political situation, to strengthen economic recovery and to build a Europe that delivers jobs and growth for its citizens.

I want the new Commission to be a strong and political team. And I want you, with your political skills and experience, to fully play your part in this team.

We will have a lot to do in the years to come and we will have to show a united and clear sense of purpose from our very first day in office. In the Political Guidelines for the new European Commission that I presented to the European Parliament on 15 July, I set out a new Agenda for Jobs, Growth, Fairness and Democratic Change, focused on ten priorities.

I had discussed and developed this Agenda in detail in meetings with all the political groups in the European Parliament. The Political Guidelines are, therefore, somewhat akin to a political contract that I concluded with the European Parliament to mark the beginning of a new mandate and to prioritise the work of the new Commission.

I will be looking for your support, creativity and action to help deliver concrete results.

Following our recent discussions, I would like you to be my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

In this mission letter, I set out what I expect from you as a Member of the Commission as well as specific goals for which you will be responsible for reaching during our mandate.

A new way of working

Delivering the priorities of the Political Guidelines will require a reform of the way the Commission has operated up until now. Reform means change. I want us all to show that we are open to change and ready to adapt to it.

I want the Commission as a whole to be more than the sum of its parts.

I therefore want us to work together as a strong team, cooperating across portfolios to produce integrated, well-grounded and well-explained initiatives that lead to clear results.

I want us to overcome silo mentalities by working jointly on those areas where we can really make a difference. We cannot and should not do everything: I want the European Commission to be bigger and more ambitious on big things, and smaller and more modest on small things.

I also want us to focus our energy and efforts on ensuring effective implementation and follow-up on the ground. I count on you to play your part in this new collaborative way of working.

To facilitate this, I have decided to organise the new Commission differently from its predecessors.

I will entrust a number of well-defined priority projects to the Vice-Presidents and ask them to steer and coordinate work across the Commission in the key areas of the Political Guidelines.

This will allow for a better focus and a much stronger cooperation amongst Members of the College, with several Commissioners working closely together as a team, led by the Vice-Presidents, in compositions that may change according to need and as new projects develop over time.

To empower them to deliver on their priority projects, the Vice-Presidents will act on my behalf and will help exercise my rights and prerogatives in their area of responsibility.

In particular, the Vice-Presidents will be in charge of:

  • Steering and coordinating work in their area of responsibility. This will involve bringing together several Commissioners and different parts of the Commission to shape coherent policies and deliver results.
  • Assessing how and whether proposed new initiatives fit with the focus of the Political Guidelines. As a general rule, I will not include a new initiative in the Commission Work Programme or place it on the agenda of the College unless this is recommended to me by one of the Vice-Presidents on the basis of sound arguments and a clear narrative that is coherent with the priority projects of the Political Guidelines.
  • Managing and organising the representation of the Commission in their area of responsibility in the European Parliament, the Council, national Parliaments and other institutional settings as well as at international level.
  • Promoting a proactive and coordinated approach to the follow-up, implementation, and communication of our priority policies across the Union and internationally.

Respect for the principles of subsidiarity, proportionality and better regulation will be at the core of the work of the new Commission. We will concentrate our efforts on those areas where only joint action at European level can deliver the desired results. When we act, we will always look for the most efficient and least burdensome approach. Beyond these areas, we should leave action to the Member States where they are more legitimate and better equipped to give effective policy responses at national, regional or local level.

I will therefore pay particular attention to your opinion as my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, before including any new initiative in the Commission Work Programme or putting it on the agenda of the College. You will also be entrusted with the regular monitoring of procedures linked to the preparation of delegated and implementing acts to ensure full political ownership.

I will also pay particular attention to the opinion of the Vice-President for Budget and Human Resources as regards the impact of our activities on the financial resources and staff of the European Commission. We will have the privilege of being supported by an excellent, highly motivated European civil service and a professionally well-run administration, but its resources are limited and have to be used to best effect. This is also why I will want resources to be allocated to our priorities and to make sure that every action we take delivers maximum performance and value added.

I also want all Commissioners to ensure sound financial management of the programmes under their responsibility, taking all necessary measures to protect the EU budget from fraud.

Under my supervision, Vice-Presidents will be supported by the Secretariat General in their tasks but will primarily rely on close cooperation with the relevant Commissioners and the services that report to them.

In addition, Vice-Presidents will be able to draw on any service in the Commission whose work is relevant for their area of responsibility, in consultation with the relevant Commissioner.

With regard to the Union’s external action, I have launched a pragmatic partnership with the new High Representative of the Union for Foreign Affairs and Security Policy, who, according to the Treaties, is one of the Vice-Presidents of the Commission.

The new High Representative and I have agreed that she will play her role as a Commission Vice-President to the full. She will notably steer and coordinate the work of all Commissioners with regard to external relations through a Commissioners’ Group on External Action to develop a joint approach.

This Group will meet at least once a month in varying thematic and/ or geographic formats, according to the needs identified by the High Representative/Vice-President or by me.

The High Representative/Vice-President will regularly report back to me and the whole College about geopolitical developments. To liaise more effectively with the other Members of the College, we agreed that she will have her Headquarters in the Berlaymont, and that the Commission will put a Cabinet of an appropriate size at her disposal, about half of which will be Commission officials.

We also agreed that, whenever she sees the necessity to do so, she will ask the Commissioner for European Neighbourhood Policy and Enlargement Negotiations and other Commissioners to deputise in areas related to Commission competence.

Working together in this new way across the Commission should help ensure that the final decisions we take as a College are well-prepared and focused on what is important and that we are all equipped to explain and defend them. We will have to show a team spirit to make the new system work. Our success will depend on each and every one of you: on the team leadership of the Vice-Presidents and on the readiness of Commissioners to be strong team players. I would ask you all to work together to ensure that this new system works well.

The portfolio of the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights

As my first Vice-President, you will steer and coordinate the Commission’s work in the areas of Better Regulation, Inter-Institutional relations, the Rule of Law and the Charter of Fundamental Rights.

You will work closely with the other Vice-Presidents, and all Commissioners will liaise closely with you when it concerns the implementation of our better regulation agenda.

In addition, for initiatives requiring a decision by the Commission in their area of responsibility, you will guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs.

You will drive the Commission’s work on better regulation in order to maximise its contribution to our jobs and growth agenda, both by coordinating the Commission’s work and by promoting the principles of better regulation in the EU institutions and at national level.

You will also be responsible for strengthening and deepening the Commission’s relations with the other institutions and national Parliaments.

During our mandate, I would like you to focus on the following, in your role as Vice-President:

  • Coordinating the work on better regulation within the Commission, ensuring the compliance of EU proposals with the principles of subsidiarity and proportionality, and working with the European Parliament and the Council to remove unnecessary “red tape” at both European and national level. This includes steering the Commission’s work on the “Regulatory Fitness and Performance Programme” (REFIT) of EU legislation and ensuring the quality of impact assessments underpinning our activities. I will ask you to take stock of experience and report to the College within twelve months on how our approach to better regulation could be strengthened.
  • Ensuring that the special partnership with the European Parliament, as laid down in the Framework Agreement of 2010, is pursued with full commitment, and coordinating, on behalf of the Commission, the inter-institutional work on policy programming and better law-making.

I will ask you to discuss, within the first three months of the mandate, with the European Parliament and the Council, the list of pending legislative proposals and to determine whether to pursue them or not, in accordance with the principle of “political discontinuity”.

  • Coordinating and strengthening the interaction of all Commissioners with national Parliaments as a way of bringing the European Union closer to citizens and forging a new partnership with national Parliaments.
  • Ensuring that every Commission proposal or initiative complies with the Charter of Fundamental Rights.
  • Leading the dialogue between the European Commission and churches and religious associations or communities, as well as with philosophical and non-confessional organisations, in a transparent and regular manner.
  • Concluding the process of accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe.
  • Coordinating the Commission’s work related to the Rule of Law.
  • Coordinating the Commission’s work on the Cooperation and Verification Mechanism for Bulgaria and Romania.
  • Coordinating the work on transparency and preparing a proposal for an Inter-Institutional Agreement creating a mandatory lobby register covering the Commission, the European Parliament and the Council.

You will represent the Commission in the General Affairs Council and in negotiations on institutional issues. You will also manage and coordinate the participation of the Commission in the Justice and Home Affairs Council.

You will be responsible for the Commission’s relations with the European Economic and Social Committee and the Committee of the Regions, as well as with the European Ombudsman.

You will coordinate the work on audit and chair the Audit Progress Committee (APC). To help you fulfil these responsibilities, the Internal Audit Service (IAS) will report to you. The IAS should be gradually reinforced through the integration of the Internal Audit Capacities of individual Commission services.

Our principles: ethics and transparency

We must abide by the highest possible professional and ethical standards at all times. I want the European Commission to lead the way as a modern, efficient and transparent public administration, open to all input that helps us deliver work of a consistently high quality, in full independence and impartiality. Our conduct must be unimpeachable. You have received the Code of Conduct of the Members of the European Commission. I expect all of us to honour both the word and the spirit of the Code.

You will have seen that the Political Guidelines include a new commitment to transparency. Transparency should be a priority for the new Commission and I expect all of us to make public, on our respective web pages, all the contacts and meetings we hold with professional organisations or self-employed individuals on any matter relating to EU policy-making and implementation. It is very important to be transparent where specific interests related to the Commission’s work on legislative initiatives or financial matters are discussed with such organisations or individuals.

Working in partnership for Europe

The Commission’s partnership with the other EU institutions and the Member States, as defined in the Treaties, is fundamental. The Union only succeeds when everyone is pulling in the same direction: this is why we should work in the months to come to forge a common understanding between the institutions about what we want to achieve and how we will go about it.

The Commission’s relationship with the European Parliament is the source of our democratic legitimacy. This must, therefore, be a political and not a technocratic partnership. I expect all Commissioners to invest in this relationship and to make themselves available for and to take an active part in plenary sessions, committee meetings and trilogue negotiations.

The meetings with the parliamentary committees over the weeks to come will be an opportunity for you to lay the foundations for a productive working relationship, to explain how your work will contribute to joint political priorities, and to demonstrate your commitment and suitability for your broader role as a Member of the College.

Effective policy-making also requires a deep understanding of every one of the Member States, of their common challenges and of their diversity. While fulfilling your obligation to participate in Commission meetings and engage with the European institutions, I want you all to be politically active in the Member States and in dialogues with citizens, by presenting and communicating our common agenda, listening to ideas and engaging with stakeholders.

In this context, I want all Commissioners to commit to a new partnership with national Parliaments: they deserve particular attention and I want, under your coordination as my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, important proposals or initiatives to be presented and explained in national Parliaments by Members of the Commission. This should also allow us to deepen the country-specific knowledge within our institution and to build mutual understanding and effective channels of communication between the national and the European level.

***

The European Union has come through one of the most testing periods in its history.

The effects of the economic and financial crisis are still causing great hardship in many parts of Europe. We live in a Union with a 29th state of unemployed people, many of them young people who feel side-lined. Until this situation has changed, this 29th state must be our number one concern, and we have to be very determined and very responsible in carrying out our work as Members of this Commission.

I am looking forward to working with you on the new start that our European Union needs now.

Jean-Claude JUNCKER

Annex: Table of allocation of portfolios and supporting services 

As first Vice-President, in charge of Better Regulation, Inter-Institutional relations, the Rule of Law and the Charter of Fundamental Rights, Mr Timmermans will work closely with the other Vice-Presidents, and all Commissioners will liaise closely with him when it concerns the implementation of the better regulation agenda. In addition, for initiatives requiring a decision by the Commission in their area of responsibility, he will guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs.

Internal Audit Service (IAS)

————————————————

Jean-Claude Juncker, President-elect of the European Commission

Mission letter  for Vêra Jourová Commissioner for Justice, Consumers and Gender Equality

(EXCERPTS)

Dear Vêra,

You are becoming a Member of the new European Commission at a particularly challenging time for the European Union. …(see  general part of VP Timmermans letter)…

The Justice, Consumers and Gender Equality portfolio

You will be the Commissioner for Justice, Consumers and Gender Equality.

You will, in particular, contribute to projects steered and coordinated by the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, as well as the Vice-President for Jobs, Growth, Investment and Competitiveness and the Vice-President for the Euro and Social Dialogue.

For other initiatives requiring a decision from the Commission, you will, as a rule, liaise closely with the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

In the Political Guidelines, I underlined that our shared values are the foundation of the EU.

These are spelled out in the Treaties and in the Charter of Fundamental Rights, which underpins all our work. The EU needs to consistently respect and uphold the rule of law and fundamental rights. This is also an area where we need to be sensitive to the diversity of constitutional and cultural traditions in the 28 Member States.

A strong EU justice and consumer policy can build bridges between national legal systems and be a key part of reaping the full benefits of the Single Market, cutting red tape and facilitating cross-border business.

A sound and predictable justice system is also a prerequisite for economic growth and a business friendly environment.

During our mandate, I would like you to focus on the following:

  • Supporting the first Vice-President, in charge of Better Regulation, Inter-institutional Relations, the Rule of Law and the Charter of Fundamental Rights, in concluding the process of accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, in making sure that all Commission proposals respect the Charter of Fundamental Rights and in consolidating the Commission’s role in protecting the Rule of Law. You will also work with the High-Representative for the Union’s Foreign Policy and Security/Vice-President to promote our values in our external relations.
  • Ensuring that, within the scope of EU competences, discrimination is fought and gender equality promoted, including by exploring how to unblock negotiations on the Commission proposal for the Horizontal Anti-Discrimination Directive.
  • Contributing, as part of the project team steered and coordinated by the Vice-President for the Digital Single Market, to the realisation of a connected digital single market by ensuring the swift adoption of the EU data protection reform and by modernising and simplifying consumer rules for online and digital purchases.
  • Concluding negotiations on a comprehensive EU-U.S. data protection agreement which provides justiciable rights for all EU citizens, regardless of where they reside, as well as reviewing the Safe Harbour arrangement.
  • Reinforcing, as part of the project teams steered and coordinated by the Vice-President for Jobs, Growth, Investment and Competitiveness and the Vice-President for the Euro and Social Dialogue, the contribution of EU justice policies to our jobs and growth agenda, including through an assessment of the performance of judicial systems in the context of the European Semester of economic policy coordination.
  • Coordinating all the Commission’s work in criminal matters and reinforcing judicial cooperation in this field. Putting an independent European Public Prosecutor’s Office in place by 2016 will be a significant step forward to protect the EU budget from fraud.

To help you to fulfil these responsibilities, the Directorate-General for Justice (DG JUST) will report to you, with some adjustments, as indicated in the table annexed to this letter.

Our principles: ethics and transparency… (see correspondent chapter of Timmermans mission letter)…

———————–ANNEX

DG Justice (JUST)

The relevant parts of the Consumer, Health and Food Executive Agency (CHAFEA)

Responsible for relations with: The EU Agency for Fundamental Rights (FRA) The European Institute for Gender Equality (EIGE) The European Union Judicial Cooperation Unit (EUROJUST)

Changes for DG JUST: – Unit MARKT F2 (Corporate Governance, Social Responsibility) moves from DG Internal Market and Services (MARKT) to DG JUST. – Directorate SANCO B (Consumer Affairs) moves from DG Health and Consumers (SANCO) to DG JUST, except for Unit SANCO B2 (Health Technology and Cosmetics), which moves from DG Health and Consumers (SANCO) to DG Enterprise and Industry (ENTR). – Unit JUST B3 (Anti-Drugs Policy) moves from DG JUST to DG Home Affairs (HOME). – Unit JUST D3 (Rights of Persons with Disabilities) and the part of Unit JUST D1 (Equal Treatment Legislation) dealing with the Directive establishing a general Framework for Equal Treatment in Employment and Occupation, move from DG JUST to DG Employment, Social Affairs and Inclusion (EMPL

—————————————–

Mission letter for Dimitris Avramopoulos Commissioner for Migration and Home Affairs

Dear Dimitris,

(see first part of  mission letter to Vice President Timmermans )

The Migration and Home Affairs portfolio

You will be the Commissioner for Migration and Home Affairs. You will, in particular, contribute to projects steered and coordinated, in particular, by the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, as well as to the work of the High Representative of the Union for Foreign Affairs and Security Policy/Vice-President. For other initiatives requiring a decision from the Commission, you will, as a rule, liaise closely with the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

Migration is one of the pressing challenges I have highlighted in my Political Guidelines. Europe needs to manage migration better, in all its aspects. A successful migration policy is both a humanitarian and an economic imperative. We need to show that the EU can offer both a compelling case to attract global talent, and a vision of how to robustly address the challenge of irregular migration. We need a new policy on migration that will address skill shortages and the demographic challenges the EU faces and that will modernise the way the EU addresses these challenges.

The other priority of your portfolio will be to help the Member States to manage and secure Europe’s borders. The Common Asylum EU framework needs to be fully applied and operational.

We also need to step up the fight against cross-border crime and terrorism. The EU can make a key contribution to citizens’ security in an area with clear ramifications for freedom of movement and fundamental rights.

The focus should be on concrete operational measures where the action of the EU can have an impact – and where we can show that this does not compromise our commitment to fundamental rights and values.

During our mandate, I would like you to focus on the following:

  • Developing a new European policy on regular migration. Such a policy should help Europe address skills shortages and attract the talent that it needs. A first step will be to address the shortcomings of the “Blue Card” Directive: I would ask for a first review to be concluded within six months of the start of the mandate. Further steps will require reflection on the best ways to make the EU an attractive place for migration destination, on the basis of other existing models.
  • Boosting the effectiveness of the European border agency FRONTEX by developing a system to pool resources from Member States. We need to be able to put European Border Guard Teams into action quickly, with the participation of all Member States as a rule.
  • Working to ensure the full and consistent implementation of the Common European Asylum System. We should look at an extended role for the European Asylum Support Office, with a particular focus on working with and in third countries. We should also develop a strategy for improving our response to emergency situations.
  • Working with the High Representative of the Union for Foreign Affairs and Security Policy/VicePresident and the Commissioner for International Cooperation and Development on ways to improve cooperation with third countries on these aspects, including on readmission.
  • Focusing on the fight against crime with a clear link to EU policies, such as human trafficking, smuggling and cybercrime and helping to tackle corruption, also by strengthening police cooperation.
  • Identifying where the EU can make a real difference in fighting terrorism and countering radicalisation, ensuring the respect of fundamental rights. We should be able to define operational measures which can have a concrete impact on issues such as “foreign fighters”.
  • Working closely with the High-Representative of the Union for Foreign Affairs and Security Policy/Vice-President, the Commissioner for International Cooperation and Development and the Commissioner for Trade to strengthen the EU’s strategic partnership with Africa.

To help you fulfil these responsibilities, the Directorate-General for Home Affairs (DG HOME) will report to you, with some adjustments, as indicated in the table annexed to this letter.

Our principles: ethics and transparency …(see third part of the general letter)…

 ANNEX – (Administrative adjustments)

DG Home Affairs (HOME) The relevant parts of the Research Executive Agency (REA)

Responsible for relations with: The agency for the management of large IT systems (EU-LISA) The European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX) The European Asylum Support Office (EASO) The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) The European Police Office (EUROPOL) The European Police College (CEPOL)

Changes for DG HOME: – Unit ENTR G4 (Policy and Research in Security) moves from DG Enterprise and Industry (ENTR) to DG HOME. – Unit JUST B3 (Anti-Drugs Policy) moves from DG Justice (JUST) to DG HOME.

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)

SEE MORE HERE

 

‘The next Justice and Home Affairs programme: will it be fit for purpose?’

By Henri LABAYLE , Steve PEERS and Emilio DE CAPITANI

“If a man does not know what port is he steering for, no wind is favourable to him” (Seneca)

Soon to be debated by Coreper (the Member States’ representatives to the EU), the Greek Council Presidency proposals (see here) on the future European Council guidelines on the post-Stockholm Programme in the Area of Freedom, Security and Justice (AFSJ) are quite disappointing , if not even disturbing.
Back in Tampere in 1999, the European Council (the heads of state and government of Member States) succeeded in the double challenge of framing their internal security in a supranational dimension by preserving at the same time the smooth evolution of the EU machinery. That spirit now seems far away.
Quite on the contrary, the perspective proposed by the Council Presidency looks rather surreal, if not disconnected from reality.
This is probably not a coincidence, so we have to consider that such a blindness is a deliberate choice, leading us to wonder , as it happens in any good detective story , to whom the crime will benefit… However what is already clear is that these draft guidelines will hardly be in the interest of the European Union citizens (totally ignored by the text), and not even in the interest of the European Union itself, whose effectiveness will hardly be strengthened.

I – The democratic imperative Continue reading “‘The next Justice and Home Affairs programme: will it be fit for purpose?’”

Steve PEERS:New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?

by Steve Peers Professor of Law, Law School, University of Essex  

Introduction

When the EU Charter of Fundamental Rights was first adopted, in its initial non binding form, in 2000, many asked what certain of the rights contained in the Charter had to do with the EU at all.

Most notably, why mention the right to life, when the EU did not carry out its own death penalty, or have coercive forces which killed anyone? Of course, it would seem odd to have a human rights charter without including the right to life, and the EU had already developed a detailed foreign policy strategy opposing the death penalty worldwide.

Subsequently the right to life also became relevant to the development of the Common European Asylum System. But more strikingly, the significant death toll of migrants in the Mediterranean has widely been blamed on EU policies – whether those policies are carried out by the Member States’ authorities alone, or by those authorities as coordinated by the EU’s borders agency, Frontex, which began operations in 2005. Moreover, the national authorities and Frontex have often been blamed for ‘push-backs’: the forced return of migrants’ vessels to unsafe countries, which were condemned by the European Court of Human Rights in its 2012 judgment in Hirsi v Italy.

The response to these criticisms was the adoption of rules governing maritime surveillance operations coordinated by Frontex, first of all in the form of a Council measure implementing the Schengen Borders Code. A majority in the European Parliament (EP) voted against this measure, but they did not constitute a majority of the Members of the EP (MEPs), some MEPs being absent. So the EP instead sued to annul the Council’s measure before the Court of Justice of the European Union (CJEU), and won its case, on the grounds that a measure concerning human rights and coercive measures had to be adopted by means of the EU’s legislative process.

That meant that the European Commission had to propose a legislative measure, which it did in April 2013. At first, a hard-line group of Member States opposed most of the provisions in this proposal concerning search and rescue and disembarkation (ie the rules on the destination of migrants who were intercepted and rescued), even after the particularly tragic loss of 300 migrants’ lives in autumn 2013.

However, these Member States relented, and the European Parliament also pressed to retain and improve upon the Commission’s proposal. The result was that the EP and the Council (made up of Member States’ ministers) both agreed on their respective positions on the proposal in December 2013, and then both agreed on a joint deal on the legislation by February 2014.

The legislation will therefore be formally adopted in April this year, before the EP elections in May. The crucial question is therefore whether the EU will then be doing enough to address the loss of life and push-backs in the Mediterranean.

The new Regulation

The previous Decision contained binding rules on interception, and non-binding rules on search and rescue and disembarkation. However, the CJEU said that even the latter category of rules was binding.

As noted above, a group of Member States wanted to water down (as it were) most of these rules in the new Regulation, but was ultimately unsuccessful.

There are new rules on search and rescue, which retain (at the EP’s behest) the Commission’s detailed proposal on this issue, including particularly the definition of whether vessels can be considered in a state of alert, uncertainty or distress.

Provided that sinking vessels are detected in time and that these rules are properly applied, the Regulation should therefore ensure that migrants are rescued from drowning wherever possible.

 On the other hand, the situation is more complex as regards the rules on protection of those migrants who are potentially at risk of persecution, torture or other forms of ill-treatment in their country of origin (or another country).

The focus of this analysis is therefore upon those rules – followed by an assessment of the issue of the accountability of Frontex.

Protection and disembarkation rules

Continue reading “Steve PEERS:New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?”

EU gives US six months to come clean on visa policy

Published on EurActiv (http://www.euractiv.com)
Source URL: http://www.euractiv.com/justice/eu-gives-usa-deadline-reciprocat-news-533275
Published: 05 February 2014

EXCLUSIVE / The European Commission has told the United States to lift visa requirements on Poland, Romania, Bulgaria, Cyprus and Croatia, whose citizens still need an entry permit to travel to the country.

Background

Back in 2008, when the nationals of twelve EU countries were subject to the visa requirement to travel to the US, the Commission warned that it may force American diplomats to apply for visas to travel to the European Union.

At that time, nationals of Bulgaria, the Czech Republic, Estonia, Greece, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Romania and Slovakia were excluded from the US Visa Waiver Programme, which allows visa-free travel. Washington has been refusing to grant visa-free access to US territory on a bloc-wide basis, saying it had to first ensure that each individual country fulfils its stringent security requirements.

At that time, EU officials have accused the US of attempting to undermine the Union’s common visa policy and force individual countries to agree to additional security measures that are in violation with Union rules on aviation security and data protection. [more]

The citizens of most EU countries travel without visas to a list of foreign countries, listed in annex II of Council Regulation No 539/2001.  But the nationals of some new EU member states still need a visa to travel to countries such as the United States, Canada or Australia. A regulation which entered into force on 20 December requires EU countries to “react in common” on visa matters, especially in cases where foreign countries “subjects [EU] citizens to differing treatment”.

If within six months the problem is not solved, the EU could introduce visas for US diplomats, the Commission warned. But diplomats of the countries concerned told EurActiv they would continue to negotiate bilaterally to solve the problem.

New EU regulation on visa matters

According to the new regulation, the Commission can temporarily suspend the EU’s own visa exemptions on foreign countries if they have not lifted their visa requirements within six month. The Commission has warned in the past that such rules may force American diplomats to apply for visas to travel to the European Union, if Washington doesn’t lift the visa requirement for individual EU countries (see background).

The new legislation is an initiative of the European Parliament, which in a 2012 report drew a list of third countries maintaining visa requirements on some EU countries. Canada requires visas for nationals of Bulgaria and Romania, while Australia in theory applies a unified system of treatment of visa requests to all EU countries, but its visa grant to nationals of Bulgaria and Romania is by far the lowest. According to MEPs, the Lisbon Treaty gives new powers to the Union to request that its member countries are treated as a whole and that the USA reciprocates on visa policy.

US pressure on data exchange

The four EU countries were reportedly asked by Washington to sign certain bilateral agreements as a precondition for benefitting from the US Visa Waiver Program. One of them is a 2003 provision for the exchange of terrorism screening information (HSPD-6), which called for the establishment of a single consolidated watchlist to improve the identification, screening, and tracking of known or suspected terrorists and their supporters [more].

Another is the agreement on Preventing and Combating Serious Crime (PSCS), requiring signatory countries to share biometric and other data of individuals, for the purpose of preventing, detecting and investigating serious criminal activity and terrorism, on a query basis. The US has signed such agreements with a number of EU countries already.

But the European Commission is reportedly not happy that individual countries sign data exchange agreements with the USA in the absence of a so-called EU-US Umbrella Agreement on data protection, which ensures EU citizens keep their rights when their data is processed in the US.

Diplomats from the countries lacking reciprocity in their visa affairs told EurActiv that their capitals would notify the Commission of their situation with third countries before the deadline of 9 February. According to the new regulation, if the US still applies visas for those countries 90 days following notification, the Commission may decide to suspend EU visa exemption for “certain categories of US nationals”, a jargon term referring to holders of diplomatic passports.

However, diplomats said they would pursue bilateral negotiations as well, suggesting they did not put too much hope in the EU common effort. Indeed, when the new regulation was adopted in December, it was accompanied by a statement by several member states who said that while raising the issue, the EU countries would also “take into account potential adverse political consequences that might arise from such proposals or decisions for the external relations, both of the Union and its Member States”.  “This applies in particular to external relations with strategic partners,” says the statement, signed by Belgium, Germany, Estonia, Greece, Spain, France, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Austria, Portugal, Slovenia, Slovakia, Finland, Sweden, but also Poland, a country under US visa requirement.

Next Steps

  • 9 Feb.: Deadline for the EU countries who are still under visa requirement to notify the Commission on their situation;
  • March: EU countries can ask the Commission that the EU suspends the visa exemption for certain categories of US nationals;
  • June: At the latest six months after publication of the regulation, the Commission may decide that the suspension of the visa obligation should take effect.