Category: 7. Immigration policies

Steve PEERS : Amending the EU’s visa list legislation (Analysis – February 2014 )

ORIGINAL PUBSLISHED ON STATEWATCH

Steve Peers: Professor of Law, University of Essex

Background

The EU’s legislation defining the countries and territories whose nationals are (and are not) subject to a visa requirement to enter the EU is a crucial part of the EU’s immigration policy, and has a further significant impact on the EU’s external relations. In its current form, this legislation was originally adopted in 2001 (Regulation 539/2001), and was amended seven times up until 2010 (in 2001, 2003, 2005, 2006, 2009 and twice in 2010), as well as by the last three accession agreements, without ever being codified.

A new amendment to the visa list rules was adopted in December 2013, and the European Parliament and the Council have also agreed on two further amendments to the rules, which will be officially adopted early in 2014. This analysis examines all of these recent changes, and presents an informally codified version of the text of what the Regulation will look like after they all take effect. Furthermore, the visa list Regulation was also amended back in summer 2013, as part of a set of amendments to the Schengen borders code and other EU visa legislation.

The amendment (which is also highlighted in the codified Regulation below) changed Articles 1(2) and 2 of the visa list Regulation in order to provide for a revised definition of ‘visa’. This was intended to overturn a ruling of the EU’s Court of Justice on the calculation of the time period during which a third-country national non-resident in the EU can visit (Case C­241/05 Bot [2006] ECR I-9627).

The EU’s visa list rules are applicable to all the Member States (including Denmark) except the UK and Ireland, plus the four Schengen associates: Norway, Iceland, Switzerland and Liechtenstein. This includes those newer Member States which do not yet apply all of the Schengen rules (Romania, Bulgaria, Cyprus and Croatia)

The three new amendments

(a) the December 2013 amendments

This first amendment, which came into force on 9 January 2014, did not make any amendment to the lists of countries and territories whose nationals do (or do not) need a visa to enter the EU. Instead, it set out three other changes to the rules: a new ‘safeguard clause’, a revised ‘reciprocity clause’ and revised rules on exemptions for categories of persons. These three issues will be considered in turn.

First of all, the ‘safeguard clause’ (new Article 1a; see also new Article 4a) provides for a possible fast-track reintroduction of visa requirements for the nationals of any country on the visa ‘white-list’ (ie whose nationals are not subject to a visa requirement) in cases where Member States believed that visa liberalisation has resulted in a sharp increase in irregular (‘illegal’) immigration. This change is mainly a response to concerns about the impact of the waiver of visa requirements for nationals of Western Balkan countries in 2009 and 2010, although the new safeguard clause could in theory apply to any country on the visa white-list. The Council (ie, Member States’ interior ministers) amended the Commission’s proposal so that the relevant rules leave more discretion. Both this new clause and the amended reciprocity clause must be reviewed in 2018 (new Article 1b).

Secondly, the Commission had proposed only a minor amendment to the rules governing ‘visa reciprocity’, ie the procedure for encouraging third States on the EU white-list to exempt citizens of all Member States from a visa requirement. These rules had been amended in 2005 to make them more diplomatic (the original version of 2001 had been too threatening to be credible). However, Member States had become disappointed with their application in recent years since Canada reintroduced visa requirements for Czech nationals and the Commission neither persuaded Canada to change its policy nor took any move towards retaliation. So during negotiations, the Council amended the reciprocity rules to make them tougher again, and the European Parliament insisted that they be tougher still. The revised Article 1(4) of the visa list Regulation (Article 1(5) was deleted; see also the new Article 4b); has therefore strengthened the rules to provide for a fast-track process of reimposing visa requirements upon countries like Canada. In fact, immediately after the new rules entered into force, Canada waived its visa requirement for Czech nationals again.

The negotiation of these provisions took some time because the European Parliament, the Council and Commission argued over the precise legal process that would govern the Commission’s use of the revised reciprocity clause. Ultimately, the Commission was dissatisfied with the final results and so threatened to bring a legal challenge to the final Regulation before the EU courts. It has until the beginning of March to do so.

Finally, the amendments to the rules on exemptions (Article 4) drop a cross-reference to repealed legislation, add an exemption from the rules for the crew of ships who visit the shore, and provide for an optional waiver of the visa requirement for refugees and stateless persons residing in the UK and Ireland. The Commission had proposed bigger changes to these rules, including a specific clause relating to the visa waiver which some Member States must extend to Turkish service providers due to the EU’s association agreement with Turkey, but these proposals were not accepted by the Council.

(b) the 2012 proposal

The 2012 proposal to amend the visa list, now agreed by the European Parliament and the Council, will amend the lists of States whose nationals require visas to enter most of the EU (see the Annexes to the Regulation). It will also insert into the Regulation a revised list of criteria to take into account when deciding which States will enjoy a visa waiver from the EU.

First of all, the new Regulation will waive the visa requirement for four categories of quasi-British citizens. This is in line with the Commission’s proposal, and was not contested by either the European Parliament or the Council.

Next, it will waive the visa requirement for nineteen countries, subject to the negotiation of a visa waiver agreement between the EU and each of those countries. The Commission had proposed sixteen of the countries concerned – all of them small tropical islands. But the Council had insisted that the United Arab Emirates be added, and then the European Parliament had insisted that Peru and Colombia be added too. The UAE will be the first Muslim (or Arab) country to be on the EU’s whitelist (countries whose nationals do not require visas). As for Peru and Colombia, this will be the first time that countries which the EU had previously moved to its ‘blacklist’ (countries whose nationals require visas) have returned to the whitelist (those States were moved to the blacklist back in 1995 and 2001 respectively). It seems that the European Parliament was particularly keen to reward these countries for signing a free trade agreement with the EU recently.

This brings us to the third change – the new clause in the main text of the Regulation spelling out the criteria for deciding which States’ nationals must be subject to a visa requirement. This clause was already in the preamble to the Regulation (see recital 5), and has been added to the main text because the European Parliament insisted upon it. Also, the Parliament insisted upon changing the criteria, to add references to ‘economic benefits’ such as ‘tourism and foreign trade’, as well as ‘respect of human rights and fundamental freedoms

(c) the 2013 proposal

The 2013 proposal has one purpose only – to exempt Moldova from the visa requirement. Along with most other States to the east of the EU (as well as Kosovo, and now also Turkey), Moldova has been participating in a ‘visa dialogue’ with the EU, in which the EU set a number of benchmarks and judged whether Moldova had met them before considering waiving the visa requirement. The Commission judged that Moldova had met all the requirements set out in this dialogue, although its proposal (just before the high-profile Eastern Partnership summit last November) was presumably timed for maximum political effect. Moldova is the first Eastern Partnership state to qualify for visa exemption – although the Western Balkans States had also qualified in 2009-10, following their own visa dialogue. Of course, the visa waiver for Moldova must be seen in light of the new rules, discussed above, which allow for a fast-track reimposition of visa requirements.

Assessment

Following the upcoming amendments, the visa Regulation will have been amended fourteen times: eleven times by legislation and three times by accession agreements. In the interest of public transparency, an official codification of these rules is therefore obviously urgent.

As for the substance of the amendments, the decision to apply or waive a visa obligation is an important part of the external relations policy of both the EU and its Member States. So this explains Member States’ desire to retain their remaining discretion as regards visa policy for various categories of persons. It also explains their collective desire, bolstered by the European Parliament, to assert the EU’s authority more forcefully as regards visa policy by the creation of two new fast-track powers to impose visa obligations (as regards reciprocity and safeguards), while retaining a lot of political discretion when using such powers.

In particular, the possible use of the safeguard power will likely entail many contacts between the Commission and the affected third States, perhaps entailing setting benchmarks for staying on the white list which might be compared to those benchmarks which are already set for getting on to that list.

Since the Member States wanted to ensure some control over the Commission in this area, it is not surprising that the European Parliament wanted to do so as well, via means of the use of ‘delegated acts’ which the EP could possibly block the Commission from adopting. The new amendments also demonstrate, for the first time in practice, the EP’s important role as regards the substance of the EU’s visa policy, given its successful demand to extend a visa waiver to Peru and Colombia and to change the grounds determining whether a visa requirement is waived or not.

Member States also asserted their control over the Court of Justice, overturning a judgment that irritated interior ministries, and refusing to make express reference to other case law that irritated them even more, by preventing them from imposing visa requirements on at least some Turkish visitors (Case C-228/06 Soysal; but see the later judgment in Case C-221/11 Demirkan, in which the Court of Justice deferred to Member States’ desire to retain a visa requirement for Turkish tourists). However, as noted already, Turkey has now started a visa dialogue with the EU, in return for signing a readmission agreement.

In general, Member States are clearly unwilling to consider the possibility of a system of decision-making on visa requirements which relies more on objective evidence about trends in irregular migration (as the Commission had proposed, to a limited degree, as regards the new safeguard clause) and less upon discretion, power politics and gestures synchronised with certain Member States’ election cycles.

Sources Continue reading “Steve PEERS : Amending the EU’s visa list legislation (Analysis – February 2014 )”

The EP and the Council agree on the new EU legal framework for seasonal workers

by Emilio De Capitani

After more than three years of negotiations the European Parliament has finally approuved (with 498 votes in favour 56 aginst and 68 abstentions) on February 5th the agreement with the Council on the new legal framework for seasonal workers in the European Union. The text will be finalised and linguistically revised in the coming weeks published in the Official Journal and should be transposed in national law after 30 months since its entry into force (end of 2016 or beginning of 2017)

It will replace a non binding EU Council Resolution which dates back to 1994 and which included some elements defining the notion of “seasonal” worker. According to the new Directive ’seasonal worker’ “means a third-country national who retains his or her principal place of residence in a third country and stays legally and temporarily in the territory of a Member State to carry out an activity dependent on the passing of the seasons”.  In more plain terms seasonal workers are people generally engaged in non- or low-skilled economy sectors of the receiving country’s in particular in agriculture during the planting or harvesting period, or in tourism in hotels and catering in particular during the holiday period.(1) Regrettably for this kind of activities the risk of exploitation and sub-standard working conditions threatening the workers’ health and safety is very high also due to the fact that they are very often linguistically or geographically isolated. Around 100.000 people in the EU could fall currently in this category of workers (2).

The main objective of the new legislation is to overcome the existing patchwork of national legislation and of bilateral agreements by establishing the first EU scheme on circular migration where workers while keeping their residence outside the EU could have the chance to come in the EU every year for the same season (re-entry would be facilitated for third-country nationals who were admitted to the Member State as seasonal workers at least once within the previous five years).

Due to the very different economies in the MS (think to the situation which could exist in Finland or in Greece) it will be up to the MS when transposing the Directive to define in consultation with social partners, those sectors of employment which include activities which can be considered of “seasonal” nature.

The maximum period of stay will be between five and nine months in any 12‐month period and non EU seasonal workers may work for more than one employer during that period. For stays not exceeding three months, the provisions of the Directive shall apply without prejudice to the Schengen acquis. The Seasonal worker candidate should have a valid work contract or, a binding job offer which specifies the place and type of the work, duration of employment, the remuneration and the working hours per week. He should give evidence of having applied for sickness insurance and will have adequate accommodation. For admission for stays exceeding three months Member States shall issue a long-stay visa, indicating that it is issued for the purpose of seasonal work or a seasonal worker permit or a seasonal worker permit and a long-stay visa, (if the long-stay visa is required under national law for entering the territory). Most importantly the applicants must also also have sufficient resources without having recourse to Member States’ social assistance systems.

The main improvement arising from the new Directive will be that seasonal workers will be granted equal treatment with EU nationals at least with regard to (inter alia) terms of employment, including the minimum working age, and working conditions, including pay and dismissal, working hours, leave and holidays, the right to strike, education and vocational training, recognition of diplomas, etc. Member States may restrict equal treatment, particular with regard to access to certain social assistance.

Member States may determine whether the application is to be made by a third country national or by the employer (or both). Member States shall also designate the authorities competent to receive and decide on the application for and to issue a seasonal worker permit following a single application procedure.

Effective mechanisms through which seasonal workers may lodge complaints against their employers directly or through third parties, and measures protecting against dismissal or other adverse treatment by the employer as a reaction to a complaint must also be foressen. The employer shall be liable to pay compensation to the seasonal worker as it will be the case when the employer is a subcontractor, the main contractor and any intermediate subcontractor who have not undertaken due diligence obligations as defined by national law.

Sanctions against employers who have not fulfilled their obligations shall be “effective, proportionate and dissuasive” (following the classical “Greek Maize” formula).

The draft Directive list also the cases when an application may be rejected. This will be notably the case when the vacancy in question could be filled by nationals of the Member State concerned or by other Union citizens, or by third-country nationals lawfully residing in the Member State (principle of “Union preference”). It can also be rejected when the applicant might pose a threat to public policy, public security or public health.
Other grounds of rejection could arise from employer’s misgivings (when he has been sanctioned for undeclared work and/or illegal employment or where the employer’s business is being or has been wound up under national insolvency laws or where the employer has failed to meet its legal obligations regarding social security, taxation, labour rights, working conditions or terms of employment). The authorisation for the purpose of seasonal work granted may also be withdrawn if the third-country national applies for international protection.
Continue reading “The EP and the Council agree on the new EU legal framework for seasonal workers”

Analysis: EU rules on maritime rescue: Member States quibble while migrants drown…

by Steve Peers Professor of Law, University of Essex

PUBLISHED ON STATEWATCH

22 October 2013

Introduction

For many years now, the death toll of migrants who drown while attempting to reach the European Union in search of a better life has tragically been rising. Most recently, public opinion was particularly shocked when hundreds of migrants drowned when a single vessel sank off the coast of Italy. The Italian government has called for the EU to adopt an action plan to deal with the issue, and the Prime Minister of Malta, calling the Mediterranean a ‘graveyard’, has called on the EU to act.

Yet shockingly, these Member States, along with four others, are blocking an EU proposal on the table that contains concrete rules on the search and rescue of migrants – precisely and solely because it contains rules on search and rescue (along with disembarkation) of migrants. In fact, they describe their opposition to such rules as a ‘red line’, ie they refuse to negotiate on their opposition to any detailed EU rules which concern saving migrants’ lives.

The following analysis examines the background to this issue and assesses these Member States’ objections. It concludes that their legal objections to this proposal are clearly groundless. Furthermore, of course, from a political point of view, the hypocrisy and inhumanity of these Member States’ position speaks for itself.

Background

Due to widespread concerns about the accountability and legality of the actions of the EU’s border agency, known as ‘Frontex’, when it coordinates Member States’ maritime surveillance operations, EU rules on this issue were first adopted in 2010.

These rules initially took the form of a Council Decision implementing the EU legislation on the control of external borders, which is known as the ‘Schengen Borders Code’. The 2010 Council Decision included binding rules on interception at sea, and apparently non-binding rules on search and rescue and disembarkation of migrants.

A majority of those members of the European Parliament (EP) who voted on this Council Decision opposed it, and so the EP decided to sue the Council before the Court of Justice to annul the decision. The EP won its case, when the Court ruled in September 2012 that the Council Decision had to be annulled.

According to the Court, this Decision should have been adopted as a legislative act, because it addressed issues that affected the human rights of the persons concerned, and regulated the coercive powers of border guards; the Court also clarified that the rules in the Decision on search and rescue and disembarkation were in fact binding. However, the Court maintained the 2010 Decision in force until its replacement by a legislative act.

In spring 2013, the Commission proposed such a replacement act, which has to be adopted by means of the ‘ordinary legislative procedure’, ie a qualified majority vote in the Council (Member States’ ministers) and joint decision-making powers of the European Parliament. This proposal took over much of the text of the Council decision, but also added some further details as regards search and rescue and disembarkation, confirming also that these rules were binding. Like the 2010 Council decision, the proposal is limited to cases where Frontex coordinates Member States’ maritime surveillance.

While the European Parliament is broadly supportive of this proposal, suggesting only modest amendments, a group of Mediterranean Member States opposes the idea of any EU measure containing any detailed binding rules on search and rescue and disembarkation – even though such provisions are the most important rules in the 2013 proposal as regards saving migrants’ lives and their subsequent welfare.

The proposed search and rescue and disembarkation rules

The relevant parts of the 2013 proposal are Article 9 (search and rescue) and Article 10 (disembarkation).
Article 9 contains first of all a general obligation to ‘render assistance to any ship or person under distress at sea’. It defines further what is meant by a condition of ‘uncertainty’, ‘alert’ or ‘distress’, and provides for general rules on coordination of operations in such cases.

As for disembarkation, Article 10 contains rules to determine where migrants should be disembarked if they are intercepted or rescued. If they are intercepted in the territorial water or nearby maritime zone of a Member State participating in Frontex operations, they must be disembarked in the territory of that State.

If they are intercepted in the high seas (ie waters which no State has a legal claim to, under the international law of the sea), then they should be disembarked in the State which they departed from – subject to the rules in Article 4 of the proposal, on the protection of fundamental rights. In the case of search and rescue operations, there are no specific rules on which State to disembark migrants in, but Article 4 implicitly applies here as well.

The rules in Article 4 prohibit sending a person to a State ‘where there is a serious risk that such person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment or from which there is a serious risk of expulsion, removal or extradition to another country in contravention of the principle of nonrefoulement’.

This clause reflects the judgment of the European Court of Human Rights, in a case called Hirsi v. Italy, where Italy was condemned for ‘pushing back’ boats full of migrants to Colonel Khadafy’s Libya.

Member States’ objections

The group of Member States objecting to Articles 9 and 10 state that the EU has no competence over issues relating to search and rescue or disembarkation.

First of all, as regards disembarkation, this objection is clearly ridiculous.
The admission of a migrant onto a Member State’s territory, or removal to a third State’s territory, is obviously an inherent part and parcel of immigration policy, and the Treaties empower the EU to develop a ‘common immigration policy’. Equally, the Treaties give the power for the EU to adopt rules on border controls, and it would be absurd to adopt rules governing the interception of migrants without addressing the obvious corollary question of what to do with the migrants once the border guards catch them.

Secondly, at first sight, the objections to EU competence as regards search and rescue rules have more force. Certainly, there is nothing in the EU Treaties which gives the EU power to regulate searches and rescues generally. But the 2013 proposal would not do that: it would only regulate searches and rescues in the context of the EU’s border controls policy, and only where maritime surveillance was coordinated by Frontex.

Can the EU regulate searches and rescues in such cases?
The case law of the Court of Justice on public health issues should logically apply by analogy.
The Court has ruled that while the EU cannot regulate public health generally, it can take account of public health concerns when it adopts legislation (for instance, on tobacco advertising, cigarette content or the packaging of cigarettes) which is principally concerned with regulating the EU’s internal market. Similarly, the EU’s General Court has ruled that EU legislation can take account of the life and welfare of seals, if it adopts legislation on the sale of seal products that mainly concerns the internal market.

If EU internal market law can concern itself with the long-term effects of cigarette smoking for smokers, or the immediate effect of clubbing on seals, then surely EU law on border controls can concern itself with the effect of imminent drowning upon migrants, where there is a direct connection with maritime surveillance.
And there is bound to be such a connection: EU rules stepping up maritime surveillance, while they have (and legally must have) the principal purpose of controlling entry onto the territory of the Member States, will in some cases fall to be applied when the persons planning such entry are about to drown. It should be recalled, as explained above, that the proposal only sets out a general obligation to assist vessels in distress and to coordinate action in emergency situations.

Thirdly, it should not be forgotten that the proposed rules will apply only to operations coordinated by Frontex – an EU agency, funded entirely by money from the EU budget.

Why should the EU not have the power to set conditions before its agency (spending its money) assists Member States with maritime surveillance, in the same way that it has the power to set conditions on its financial assistance to its Member States, or third countries?

Another objection of the six Member States is the compatibility of the proposed Regulation with international law. The obvious way to address this problem (if it exists) is to amend the Regulation to ensure that it is consistent with international law. Anyway, the preamble to the legislation (recital 4) states that it must be applied consistently with international law: Member States did not object to such vague references to international law in readmission treaties, or in much of the EU’s legislation on irregular migration orborder controls.

The six objecting Member States seem to be concerned also about the proposal’s mere overlap (as distinct from conflict) with international law – but the EU adopts an enormous amount of legislation (on the environment, for instance) which overlaps with international law, and aims to provide for the detailed and effective implementation of the relevant international law obligations.

More fundamentally, eviscerating the proposed rules on disembarkation would empty the protection of Article 4 of the proposal (on ensuring the safety of persons sent to third countries) of much of its practical content – but, as explained above, this part of the proposal reflects important case law of the European Court of Human Rights. Similarly, removing or weakening the provisions on search and rescue would subtract from the proposal any added value as regards protection of the right to life – another key obligation of human rights law. One can only conclude that the six Member States in question come not to praise international law, but to bury it.

Conclusion

Member States rightly rejected specious and cynical legal arguments made throughout the last decade to justify torture, abduction and indefinite detention without trial in the name of the ‘war on terror’.
Of course, control of immigration is a different issue, but the legal arguments raised by these six Member States are equally specious and cynical – and should equally be rejected. The EU bears its share of responsibility (alongside its Member States) for the deaths of hundreds of migrants – but that must also mean that the Union should be able to make some concrete contribution towards reducing this death toll in future.

Sources

2010 Council Decision
Judgment of Court of Justice – Case C-355/10:
2013 Commission proposal –
European Parliament draft report–
Objections of six Member States –
Presidency proposal –
Positions of Member States on entire proposal

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

 

LogoSummerSchool2013Rome

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

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

Night view of Europe

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

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

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

Debate

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

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

Debate

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

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

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

Debate

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

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

Debate

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

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

Debate

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

Debate

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

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

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

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

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

Debate

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

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

Debate

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

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

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

Debate

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

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

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

Final Debate

PRESENTATION OF THE COURSE

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

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

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

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

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

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

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

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

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

Speakers:

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

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

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

BuonGoverno

European “Smart Borders” project : negative opinion of the Meijers Committee

The  Meijers Committee (*) has recently advised the members of the European Parliament to vote against the “Smart Borders” proposals (COM(2013) 95, 96 and 97).  

In its letter it has expressed its deep concerns with respect to the:
– proportionality and practical feasibility of the proposals;
– coherence of the proposals with existing databases;
– applicable standards of data protection for the data subjects;
– conditions for transmission of personal data to third countries;
– broad discretion as regards the issuing of the registered traveller status;
– proposed amendments in the Schengen Borders Code;
– possible access to the Entry/Exit system for law enforcement purposes.

 Note on the Smart Borders proposals (COM(2013) 95 final, COM(2013) 96 final and COM(2013) 97 final)

 1. Introduction

 The proposed Entry/Exit System (EES) processes alphanumeric data and fingerprints upon entry and exit of the third-country national, aiming to improve the management of the external border and the fight against irregular migration and more specifically to contribute to the identification of any person who may not, or may no longer fulfil the conditions of duration of stay within the territory of the Member States (so-called “overstayers”). This would effectively mean that the EES would collect the personal data of all third-country nationals entering the Schengen area. The Registered Traveller Programme (RTP) enables pre-vetted individuals to cross borders faster than other third-country nationals and aims to offset the additional constraints by the EES on cross-border travel. According to the European Commission, yearly 109 million third-country nationals without a visa and 73 million third- country nationals with a visa cross the EU borders.

The costs of the Smart Borders proposals envisaged by the European Commission are 1.1. billion euro.1

The sheer amount of data collected, in combination with the high costs of establishing Smart Borders, require compelling justifications. The EU legislator is obliged to observe proportionality as a general principle of EU law. This means that the measure must be suitable and necessary to achieve the aim it pursues, and should not impose “a burden on the individual (…) excessive in relation to the object sought to be achieved”.2

The Meijers Committee is of the opinion that the Smart Borders proposals are neither proportionate, nor suitable to its stated aims and raise severe data protection concerns. Therefore, the Committee advises the European Parliament to vote against the proposals. 

 2. Proportionality and practical feasibility

 The proposals intend to facilitate the entry of “bona fide” travellers at the external borders and shorten waiting times.3 The EES is however likely to result in longer queues for third- country nationals, since all third-country nationals – also those that are not under a visa obligation – will be required to provide their fingerprints at the border. The RTP will only off-set waiting time to a limited extent, as only a limited number of third-country nationals will enrol in that programme.4 There is also a lack of clarity on the size of the problem of overstay which the EES intends to tackle. There are few reliable data on the numbers and profile of overstayers and there is very little research on the financial and social costs of the presence of third country nationals staying on an irregular basis in the EU.

Most importantly however, there is no direct link between the identification of overstayers and the stated objective of tackling irregular migration. The extent to which the information from the EES can help to implement and execute return proceedings is limited. The identification of overstayers does not provide authorities with any information as regards their location within the whole Schengen territory, nor does it facilitate return procedures. When a third county national is apprehended on suspicion of irregular stay, already now national authorities are able to establish the (ir)regularity of stay by examining the entry and exit-stamps on a person’s passport as well as by consulting the visa-stickers and VIS. Moreover, the mere identification of overstayers does not provide a solution in the situation where a third state does not cooperate in return proceedings. The side-effect of being able to collect statistics on overstay does not by itself justify the collection of large amounts of personal data.

Lessons need to be learnt from the experience with the setting up and practical operation of already existing databases. The European Commission itself has stated that a fully operational and developed Visa Information System (VIS) is “a prerequisite for the implementation of a Smart Borders System”.5 The Meijers Committee notes that the new generation Schengen Information System (SIS II) has only become operational as of 9 April 2013, the VIS is still in the process of being rolled out and access to EURODAC for law enforcement purposes has only been decided upon recently.6 There is therefore insufficient information to assess the functioning of existing databases and the added value of the current proposals. As required by the Hague Programme new centralised databases should only be created on the basis of studies that have shown their added value.7

Finally, the Meijers Committee wishes to point out the difficulties with the implementation of other information systems, most notably the SIS II, which was plagued with delays and cost over-runs due to technological problems. The United States has been unable to successfully implement a fully-functioning entry/exit system despite costly efforts to do so over the past decade.8 These experiences raise serious doubts as to the practical feasibility and cost-effectiveness of the current proposals. 

3. Coherence with existing EU legislation

The Smart Borders Package will not function in isolation. Close attention has to be paid to the interaction with other databases in the Area of Freedom, Security and Justice. The proposals do not stipulate the consequences of an entry as overstayer in the EES for the inclusion in other data bases or the possible issuing of a return decision and/or entry ban under the Return Directive 2008/115. The registration of entry bans into the SIS should always be subject to the principle of proportionality and requires an individual assessment, in accordance with Articles 21 and 24 of the SIS II Regulation. However, national practices with regard to the SIS and the application of entry bans show a diverging approach in the EU Member States.

In an earlier opinion, the Meijers Committee has already pointed out the legal uncertainty in relation to the issuing of an entry ban and its inclusion in the SIS.9 The Meijers Committee expects a similar problem with respect to the reporting of overstayers in the EES. When overstay in the past is an element to be taken into account when issuing a (new) Schengen visa to a third-country national, the risk exists that the fact that he or she is reported in the EES, will lead to an automatic refusal of a visa, not taking into account his or her personal circumstances or reasons to visit the EU.

 The Meijers Committee further points to the relationship of the EES and the reintroduction of internal border controls, regulated in Article 28 of the Schengen Borders Code. According to this provision, the obligation to enter the entry and exit data of the third country- national in the EES would apply mutatis mutandis

 Close attention also needs to be paid to the possible consequences of EES for EU citizens and especially third country family members of EU citizens. The proposals should guarantee that the application of the EES does not interfere with the rights laid down in Directive 2004/38 EC. Moreover, the Meijers Committee questions whether the EES can be applied to Turkish nationals falling under the Association Agreement and their family members in light of the standstill clause in Decision 1/80 and the nondiscrimination clause in Article 9 of the Association Agreement.

 Finally, the Smart Borders proposals refer to Directive 95/46 as the applicable legal framework for data protection. These rules are however under review and set to be replaced by a new general legislative framework on data protection (COM(2012 9,10 and 11). The Meijers Committee recommends that the adoption of proposals involving the storage of large amounts of data is postponed until the final adoption of clear and uniform rules on data protection. Following the adoption of a new legal framework, the Smart Borders proposals should be re-assessed in the light of the new data protection framework.

 4.Data protection rights

 It is established case law of the ECtHR that the mere collection, storage and processing of personal data amounts to an interference with the right to privacy (art. 8 ECHR and art. 8 EU Charter). Such interference can only be justified when it serves a legitimate aim and is proportionate to this aim. The data must be relevant and not excessive in relation to the purposes for which they are stored and preserved in a form no  longer than is required for the purpose for which those data are stored.10 As mentioned above, under point 2, the necessity and the proportionality of the Smart Borders proposals has not been established.

The Meijers Committee is of the opinion that the proposal for an Entry/Exit system does not offer sufficient guarantees to the data subject and leaves too much discretion to the Member States. In the following, the Committee makes a few comments on specific provisions relating to data protection in the proposal for an Entry/Exit system.

 § 4.1. Article 20- the storage of data

 Article 20 of the proposal for an EES regulates that data will be stored in the EES for six months when the third-country national exits the territory of the Member States within the authorised period of stay. Data shall be stored for a maximum period of five years when there is no exit-record following the date of expiry of the authorised period of stay. The unconditional application of a five years data retention period may result in a disproportional limitation of the individual freedom of movement. It could mean that an individual may not be able to re-enter the EU during five years, also when a person has overstayed his or her authorised stay for a negligible amount of time or for causes not attributable to him or her.

 § 4.2. Article 21- the possibility to amend data in EES

 The proposal is flawed as regards the rights granted to the data-subjects in case of justifiable overstay or of an erroneous entry in the EES. It is crucial that a third-country national has the possibility to request the,competent authorities to delete or amend such data and is given an effective judicial remedy, including interim measures, if the authorities refuse to amend the data, especially if in the future data stored in EES can be accessed for law enforcement purposes. Article 21 of the proposal includes these rights, but its text provides the Member State a wide discretionary power; notions such as “without delay”, “unforeseeable and serious event” and “in case of errors” can be interpreted in many different ways.

Also, the decision on which evidence shall be admitted to support the claim for amendment of the data should not be left to the discretion of the Member States. Considering that exceeding authorised stay might lead to the expulsion of the third country national, a clearly defined provision, including the possibility to grant suspensive effects to the appeal lodged on EU level is necessary. Finally, the Meijers Committee points at the important problem of the practical accessibility and implementation of the rights in Article 21, especially when the individual concerned has left the EU territory.

 § 4.3. Article 27- transfer of data to third countries

 The Meijers Committee is concerned about the wide discretionary power left to the national authorities of the Member States with regard to the transfer of personal data from the EES to third countries, as provided in Article 27 of the proposal. This discretionary power undermines the general principle that data shall not be transferred to third countries, third parties or organisations. The transfer of data to third countries is allowed for the purpose of proving the identity of third-country nationals, including for the purpose of return. The conditions to allow for such communication do not offer sufficient guarantees. It has not been substantiated why the transfer of EES data to third countries is necessary for the return of third- country nationals.

 Furthermore, Article 27(3) regulates that the transfer of third countries shall not prejudice the rights of, refugees and persons requesting international protection, in particular as regards non-refoulement. The Meijers Committee notes that it should be clarified how and by whom the decision on the transmission of data to third countries and the risk of non-refoulement will be examined and if the Member State involved will be held responsible when something happens to the person upon return to his or her country of origin.

 § 4.4. Articles 29 and Article 32- Liability and penalties

 Article 29 on the liability for suffered damage as a result of an unlawful processing operation or any act incompatible with the EES does not offer a strong position to the third- country national; Member States will be exempted from liability if it proves that it is not responsible for the event giving rise to the damage. This again leaves too much room for interpretation, especially because no clarity is given on the burden of proof, and the possibility to claim compensation is left to national law.

Article 32 provides for the possibility for the Member States to lay down rules on (administrative or criminal) penalties applicable on infringements of data protection provisions in this Regulation. These penalties should be “effective, proportionate and dissuasive”. While this formulation is consistent with EU law, the Meijers Committee finds that future evaluation mechanisms of the EES should assess carefully whether national provisions implementing this provision do guarantee in an effective manner European data protection rules.

 § 4.5. Role of the supervisory authorities

 Considering the current use and development of large-scale databases in the EU and other instruments involving data processing, such as the API Directive, the VIS and Eurodac, the Meijers Committee underlines the excessive increase of workload of the national supervisory authorities and the EDPS. This development carries the risk that supervisory authorities will not be able to exercise their tasks effectively. Therefore, the financial and personal means which are necessary for data protection authorities in order to be able to perform their tasks effectively with respect to the whole data protection framework, should be taken into account and guaranteed.

 5. Access to Entry/Exit System for law enforcement purposes and the possibilities offered by Privacy by Design

 The current proposal for an EES clearly indicates that in the near future access to the Entry/ Exit System for law enforcement purposes will be considered. This can be derived from the Impact Assessment, where access for law enforcement is already explored and recital (11) where it is set out that the technical development of the system should be as such that in the future access for law enforcement purposes will be possible. The Meijers Committee regrets the premature reference to this possibility because it obscures the discussion on the desired form and the necessity and proportionality of the system as it stands.

As already expressed in earlier comments, the Meijers Committee underlines its strong objections to provide access for law enforcement purposes.11 Access for law enforcement purposes to the EES containing data of a large group of innocent persons is to be considered as a disproportional limitation of their privacy and data protection rights, including the principle of purpose limitation. In this context, the Meijers Committee recalls that preliminary questions have been submitted by national courts in Germany and the Netherlands to the Court of Justice of the European Union on the implementation of the Regulation (EC) No 444/2009 on standards for security features and biometrics in passports and travel documents issued by the Member States.12 In these questions, the national courts voice their concerns about the proportionality of the central storage of biometric data in passports and travel documents and their use for other purposes and about the relationship of the Regulation with the rights to privacy and protection of personal data safeguarded under Article 7 and 8 of the Charter of Fundamental Rights and Article 8 ECHR.

 Although access for law enforcement purposes is not regulated in the current proposal, it is required that a technical system be set up in order to allow such access (Recital 11). In view of this, the Commission should device solutions which accommodate privacy by design,13 by recurring to Privacy Enhancing Technologies (PET).14 For example, in this case, it should be considered to use fingerprint identification technologies coupled with the storage of templates (e.g. using hash functions) of fingerprints, instead of the storage of full fingerprints in the database. Besides enhancing security, by reducing the chance to compromise biometric data, this will offer some level of data minimisation and, consequently, will benefit proportionality for a database storing data of persons which are not suspected of any crime.

 6. The Registered Traveller Programme (COM (2013) 97 final)

 The Meijers Committee has also taken note of the proposal for a Regulation establishing a Registered Traveller Programme. Recognizing the usefulness of facilitating the swift entrance of frequent third- country travellers to the EU, the Meijers Committee questions whether Article 12 of the proposal does not give too much discretion to the competent authorities in deciding on an application for such a programme. Article 12 (d) for example provides that the applicant has to prove “his/her integrity and reliability, in particular a genuine intention to leave the territory in due time”, which can be interpreted in many different ways. The Meijers Committee is of the opinion that the provisions must be more concrete, in order to avoid discretionary decisions on the admission to the Registered Travellers Programme.

 7. Proposed amendments to the Schengen Borders Code (COM (2013) 96 final)

 The amendments to the Schengen Borders Code aims to bring the Code in line with the proposals for an EES and an RTP. The Meijers Committee notes that not only technical amendments are proposed, but also amendments on the substance, considerably extending the possibilities for border guards to check whether the third country national is an overstayer. For instance, border guards now always need to verify that the third country national did not exceed the maximum duration of authorised stay in the territory of the Member States upon exit of the territory (addition para. IV to Article 7(3)(b)), whereas in the current provision this is not compulsory (Article 7(3)(c)(ii). This extended obligation is not in line with the aim to shorten waiting lines at the borders.

 The Meijers Committee is concerned about the amendments to Article 11 of the Schengen Borders Code. In the current Article 11 a presumption of irregular stay is provided for in the situation where a thirdcountry national does not bear an entry stamp, whereas in the proposed amendment not only the lack of an entry record in the EES presumes irregular stay, but also where there is an entry record but there is no exit date following the date of expiry of the authorised length of stay. The Meijers Committee notes that this considerably extends the possibilities for authorities to accept a presumption of irregular stay. This underlines the importance of entering data in the EES correctly and accurate, but also implies that clearly defined safeguards should be provided for to be able to rebut the presumption and to have an effective judicial remedy if the rebuttal of the presumption is not accepted.

 The Meijers Committee questions whether the criterion of providing “credible evidence, by any means, such as transport tickets or proof of his or her presence outside the territory of the Member State” does not leave too much discretion to authorities to decide on this issue, especially because of the serious consequences: the third- country national may be expelled by the competent authorities from the territory of the Member State concerned. The Meijers Committee considers that it should be investigated first how the Member States have applied this provision so far and whether it has lead to diverging practices.

 o-0-o

 1 Impact Assessment Proposal for a Regulation establishing an entry/exit system to register entry and exit data of third- country nationals crossing the external border of the Member States of the European Union (SWD (2013) 47 final), p. 11 and p.45.

2 P. Craig, G. de Búrca, EU LAW, Oxford, OUP, 2008, p. 545.

3 ‘Smart Borders’ enhancing mobility and security’, press release European Commission, 28 February 2013.

4 Dr. B. Hayes, M. Vermeulen, “Borderline EU Border Surveillance Initiatives », Heinrich Böll Stiftung, May 2012.

5 COM (2011) 680 final, p.7.

6 Regulation (EC) No 1987/2006 on the establishment, operation and use of the second- generation Schengen Information System (SIS II), Regulation (EC) No 767/2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas and amended proposal for a Eurodac Regulation for the effective application of the Dublin Regulation and  to request comparisons with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (COM(2012) 254).

7 The Hague Programme, Strengthening Freedom, Security and Justice in the European Union (2005/C 53/01).

8 GAO report number GAO-09-1002T: ‘Homeland Security: Despite Progress, DHS Continues to Be Challenged in Managing Its Multi-Billion Dollar Annual Investment in Large-Scale Information Technology Systems’(15 September 2009).

9 CM1202 Note on the coordination of the relationship between the Entry Ban and the SIS- Alert- An Urgent need for Legislative Measures, 8 February 2012.

10 ECtHR S and Marper v. the UK, 4 December 2008, application nos. 30562/04 and 30566/04. See also ECJ Huber v. Germany, C-524/06, 16 December 2008.

11 See also a.o. CM1216, CM0910 and CM0714.

12 Dutch Council of State, case 201205423/1/A3, 28 September 2012, C-447/12 and Verwaltungsgericht Gelsenkirchen, C-291/12 Schwarz v. Stadt Bochum, 15 May 2012.

13 See the Opinion of the European Data Protection Supervisor on Promoting Trust in the Information Society by Fostering Data Protection and Privacy, at: http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2010/10-03-19_Trust_Information_Society_EN.pdf.

14 See MEMO of the Commission Privacy Enhancing Technologies (PETs), Reference: MEMO/07/159, at; http://europa.eu/rapid/press-release_MEMO-07-159_en.htm#fn3; see also the Study on the economic benefits of privacy-enhancing technologies (PETs), Final Report to the European Commission, DG Justice, Freedom and Security, Prepared by London Economics,2010 at: http://ec.europa.eu/justice/policies/privacy/docs/studies/final_report_pets_16_07_10_en.pdf; see also Commission’s Communication COM(2007) 228 final, on Promoting Data Protection by Privacy Enhancing Technologies (PETs), at: http://eur-lex.europa.eu/LexUriServ/site/en/com/2007/com2007_0228en01.pdf.

 

 

(*) The Standing Committee of Experts on International Immigration, Refugee and Criminal law, was established in 1990 by five NGO’s: the Dutch Bar Association, the Refugee Council, the Dutch section of the International Commission of Jurists, the Netherlands Centre for Immigrants/FORUM and the National Bureau against Racism (LBR).The Committee is independent. Most of its members are lawyers, working at Law Faculties in the Netherlands or in Belgium. The Standing Committee monitors developments in the area of Justice and Home Affairs and presents its opinion to the Dutch Parliament, the European Parliament, or parliaments in other Member States (e.g. the House of Lords), to the Dutch government, the European Commission and to other public authorities and NGO’s.

 

CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE

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

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

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

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

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

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

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

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

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

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

Illegal migration: the “Returns” Directive in the recent case-law of the ECJ

by: Rosa Raffaelli

The judgment of the ECJ in the Achughbabian case, which follows closely the recently issued El Dridi judgment, has further clarified the scope of application of the Returns Directive (Directive 2008/115/EC).

The Directive, adopted under the co-decision procedure by the European Parliament and the Council, aims at establishing common standards and procedures to be applied in Member States for returning illegally staying third-country nationals (Article 1).
The Directive therefore requires States to issue a return decision to any irregularly staying third-country national, save in exceptional circumstances (Article 6).

The return decision must – as a general rule – include a period for voluntary return of between 7 and 30 days: during this period, the immigrant may not be forcibly expelled but he/she is expected to leave the national territory “voluntarily.” If the immigrant does not comply with the order, or if (exceptionally) no period for voluntary return is granted, States must take all necessary measures to enforce the return decision, including, if strictly necessary, through coercive measures (Article 8).

While the return procedure is ongoing, the third country national may also be detained, if less coercive measures appear insufficient to ensure the positive outcome of the procedure. Articles 15 and 16 provide for a number of guarantees concerning such detention, including a limit on its maximum length (6 months, exceptionally to be extended to a maximum of 18) and the possibility for judicial review, as well as establishing the principles according to which detention may only last as long as there is a reasonable prospect of removal and is to take place in specialized detention facilities. The Directive also provides for the possibility of issuing re-entry bans, lasting for up to 5 years, which are effective on the whole territory of the EU.

The compromise leading to the adoption of the directive was extremely difficult to achieve – so much so that the European Parliament, in order to encourage States to find an acceptable compromise, “froze” the European Return Fund until a directive was approved on the issue. Moreover, the final outcome clearly left many member States unsatisfied, as emerges from the low level of implementation of the Directive even after the deadline for its transposition expired (in December 2010).

Interested parties were, however, left with the possibility of raising the issue of the compatibility of national measures applicable to them with the EU Directive, leading to a surprising number of requests for preliminary rulings being filed to the ECJ.
Continue reading “Illegal migration: the “Returns” Directive in the recent case-law of the ECJ”

Seasonal Workers – EU institutions state of play

The European Parliament is due to begin discussions on “Seasonal employment: conditions of entry and residence of third-country nationals“.

This follows the European Commission’s proposal on 13 July 2010 for a directive on seasonal employment which has the aim of “establishing a common procedure for entry and residence in the EU and defines the rights of seasonal workers from third-countries” .

According to the Commission the proposed directive concerns non-EU citizens coming to an EU Member State for the purposes of seasonal employment on EU territory. The work will be carried out during one or more fixed-term work contracts concluded directly between the non-EU worker and the employer established in a Member State. The proposal introduces a special procedure for the entry and residence of third-country seasonal workers and “sets out fair and transparent rules for entry and residence while, at the same time, it provides for incentives and safeguards to prevent a temporary stay from becoming permanent“. 

The only other existing provision in this area is the 1994 Council Resolution ‘on limitations on admission of third country nationals to the territory of the Member States for employment’.

Within the Council, Ministers have held a first exchange of views which resulted in “several ministers recalling the right of Member States to determine the number of third-country nationals to be admitted to their territories.  In this context, they pointed out that the impact on national labour markets should be taken into account. Several ministers also highlighted the need for greater flexibility, for example with reference to the proposed duration of stay or the time limits in which applicants must be given a decision. In the case of seasonal employment, a number of member states mentioned that a choice should be given on whether accepted third-country nationals would receive residence permits, as proposed by the Commission, or long-term visas.

Another issue highlighted by several ministers was the question whether the rights accorded to third-country nationals should be equivalent to those enjoyed by nationals of the host member states, in particular with regard to social security benefits. Other delegations questioned whether the proposal on seasonal workers was in line with the principle of subsidiarity.” (Quote taken from: http://www.europarl.europa.eu/oeil/file.jsp?id=5865532)

Conference: Which Integration Policies for Migrants? Interactions between the EU and its Member States”

Please find in the link below information regarding the Conference entitled “Which Integration Policies for Migrants? Interactions between the EU and its Member States” to be held in Brussels the 28 and 29 October 2010
link: http://www.ulb.ac.be/assoc/odysseus/IntegrationE.html

Trafficking of human beings: towards a more protective regime?

The European Parliament submitted a draft report  by the co-rapporteurs  for discussion on 28 June 2010 (2010/0065(COD)) on the Proposal for a Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA, 28 May 2010, 10330/10.

Trafficking in human beings has been primarily dealt in the international context when in 2000, the United Nations introduced the Convention on Transnational Organized Crime (UNTOC) and the supplementary Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, (the Trafficking Protocol).

According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children 2000 – Article 3(a):

“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

This definition clearly distinguish three elements of the trafficking of human beings:

  • the act
  • the method
  • the purpose

Despite important step forwards, trafficking in human beings remains an issue that is still largely misunderstood and, consequently, inadequately addressed. The limited recognition of multiple forms of trafficking, the existence of re-trafficking activities and the role the State should have towards victims of tarfficking are some of the main problems that must be addressed.

The European Commission’s Group of Experts on Trafficking in Human Beings was established in 2008 pursuant to a decision taken in 2007 to establish a body to advise the Commission on policy and legal issues relating to trafficking in human beings. The Group has 21 members, who come from around the EU. The members come from governments of members States, as well as NGOs, international organisations and academia. The Group meets four times per year in Brussels. Its mandate is to provide the Commission with independent advice and recommendations relating to the development of law and policy with regard to trafficking in human beings, both with regard to issues raised by the Commission and also with regard to issues upon which the Group feels it should comment.

The latest opinion of this group refers to the European court of Human Rights case Rantsev v. Cyprus and Russia. The decision of the Court emphasizes the human rights aspects of trafficking of human beings, in particular with respect to the responsibility of the State to protect individuals form such practice. The opinion of the group of experts should be carefully taken into account in the current negotiations on the Proposal for a Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA, 28 May 2010, 10330/10 and tehrefore we fully report it below.

Opinion Nº 6/2010 of the Group of Experts on Trafficking in Human Beings of the European Commission

On the Decision of the European Court of Human Rights in the Case of Rantsev v. Cyprus and Russia

The Group of Experts on Trafficking in Human Beings of the European Commission, having taken into consideration the following:

The Decision of the European Court of Human Rights in Rantsev v. Cyprus and Russia,[1]

The Stockholm Programme, which states that after the entry into force of the Lisbon Treaty, the rapid accession of the EU to the European Convention on Human Rights is of key importance,

Also taking into consideration the Action Plan implementing the Stockholm Programme and its Annex, in which the first action under the title “Promoting citizens’ rights: a Europe of rights. A Europe built on fundamental rights” is the recommendation to authorise negotiation of EU accession to the Convention for the Protection of Human Rights and Fundamental Freedoms,

adopts the following Opinion.

[1] The Group of Experts on Trafficking in Human Beings of the European Commission has examined the decision of the European Court of Human Rights in the case of Rantsev v. Cyprus and Russia.

[2] The Group notes that the European Union, and all of its Member States, are bound by the principles of human rights contained in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and interpreted by the European Court of Human Rights.

[3] The Group considers that the decision offers important guidance on the human rights aspects of THB. This is important also in view of the 2005 Council of Europe Convention on Action against Trafficking in Human Beings and its monitoring mechanism “GRETA”.

[4] While THB is generally a crime perpetrated by private individuals, the State nevertheless has human rights obligations towards people who have been trafficked or who are at risk of being trafficked in the future, because of the State’s obligation, under Article 1 of the ECHR, to “secure to everyone within their jurisdiction the rights and freedoms” defined in the convention. The Group welcomes the clarification of the meaning of this obligation with regard to THB.

[5] Article 4 of the ECHR prohibits the holding of anyone in slavery or servitude. It also prohibits, with limited exceptions, forced or compulsory labour. No derogations are permitted from that prohibition. The obligations established in Article 4 extend to the prevention of any of these practices by private individuals. As the Court noted in Siliadin v. France:

limiting compliance with Article 4 of the Convention only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective. Accordingly, it necessarily follows from this provision that States have positive obligations … to adopt criminal-law provisions which penalise the practices referred to in Article 4 and to apply them in practice…[2]

[6] The Group notes with approval the acceptance by Cyprus that it had obligations to ascertain whether individuals, who come to the attention of State authorities as potential victims of THB, have in fact been trafficked or subjected to sexual or any other kind of exploitation.[3]

[7] The decision emphasizes that THB is prohibited by Article 4 of the ECHR without the need to define it either as slavery, servitude or forced labour. However, the Group welcomes the statement by the Court that THB may be very similar to slavery because traffickers exercise powers tantamount to ownership,[4] and that “trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention.”[5]

[8] The Group notes that the obligation under Article 4 of the ECHR extends beyond the duty to prosecute and penalize effectively anyone who has engaged in acts aimed at holding another in slavery, servitude or forced labour. That duty clearly includes having in place national legislation

… adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, Article 4 requires member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking.[6]

The Group welcomes this recognition that the State’s obligation extends beyond the criminal law to include significant victim-protection measures, not only for those who have already been trafficked but also for those at risk of being trafficked in the future. Furthermore, these obligations apply to all persons within the State’s jurisdiction, irrespective of whether the victim’s State of origin is in the European Union.

In addition the Group also notes positively that the Court has addressed the issue of immigration regulations that can contribute to trafficking; in this regard the Group underlines the importance of systematically assessing the impact of immigration legislation and policy on the prevention of trafficking and the protection of victims’ rights.

[9] The Group notes further the Court’s statement that State authorities may be required to take immediate practical measures of protection of victims or potential victims of THB where

the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified victim had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk.[7]

Accordingly, it is not open to the State to plead ignorance of an individual’s situation where it should have made itself aware of the risk faced.

In the opinion of the Group of Experts, such practical measures include:

  • the securing of the immediate physical safety of the trafficked person, or person at risk of being trafficked;
  • their physical, psychological and social recovery, with the immediate provision of information about their rioptions in a language that they understand;
  • referral to assistance and support with the aim of long-term social inclusion.

[10] The Group considers that these immediate measures should be taken regardless of whether the person is able or willing to cooperate with the authorities. In addition, such measures might include, but are not restricted to:

  • ensuring that the person has legal assistance and access to justice;
  • evaluating the need for short or longer-term international protection, whether through refugee status or subsidiary/complementary protection.[8]
  • safe and dignified repatriation involving cooperation with the source State and relevant NGOs and following an individual risk assessment;

[11] The Group furthermore welcomes the statement by the Court that the State’s obligation under Article 4 includes a procedural duty to investigate situations of potential trafficking, independently of any actual complaint having been made by the victim, once the State is aware of such a situation. This duty will require urgent action by the State where there is a possibility to remove an individual from a harmful or potentially harmful situation.[9]

[12] The Group notes the recognition by the Court that not only destination States but also source and transit States have obligations under Article 4 to establish their jurisdiction over any trafficking offence committed on their territory, as well as to cooperate with the relevant authorities in other States.[10] The Group considers that such cooperation is essential in cases of transnational THB.

[13] The decision of the Court makes clear that THB is not only a serious criminal act; States must take significant action in order to meet their obligation to secure to all those within their jurisdiction the right to be free from the threat of enslavement, servitude and forced labour and to live in dignity. Such action is required by the procedural obligation to investigate possible cases of THB and the substantive obligation to prosecute effectively those accused of THB and to put in place effective systems to protect those at risk and to provide access to justice for victims. Such systems should involve both immediate (urgent) and longer-term measures.

[14] The Group notes with approval that the decision of the Court makes clear that a comprehensive approach, encompassing all aspects of prevention, protection and prosecution, is essential in securing effective (State) action against THB.[11]22 June 2010

[1] Application No. 25965/04, 7 January 2010.

[2] Siliadin v. France, Chamber Judgment, Application No. 73316/01, 26 October 2005, para 89.

[3] Para 187.

[4] Para 281.

[5] Para 282

[6] Para 284.

[7] Para 286.

[8] UNHCR, Guidelines on International Protection No.7: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the status of refugees to victims of trafficking and persons at risk of being trafficked (2006); Group of Experts on Trafficking in Human Beings set up by the European Commission, Opinion No. 4/2009 of 16 June 2009, On a possible revision of Council Directive 2004/81/EC of 29 April 2004 on the residence permit issues to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, para 20.

[9] Para 288.

[10] Para 289.

[11] Para 285.