8. Judicial cooperation – Page 12 – European Area of Freedom Security & Justice

A.T. V LUXEMBOURG: THE START OF THE EU-ECHR STORY ON CRIMINAL DEFENCE RIGHTS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Alex Tinsley, (*)

(*) Legal & Policy Officer (Head of EU Office) at Fair Trials, based in Brussels. Twitter: @AlexLouisT

On 9 April 2015, the European Court of Human Rights (‘ECtHR’) gave judgment in A.T. v Luxembourg. The judgment, which will become final unless referred to the Grand Chamber, in finding a violation of Article 6 of the European Convention on Human Rights (ECHR), develops the principles established in the Salduz v Turkey. At the invitation of Fair Trials International, third party intervener, it also takes into account, for the first time, Directive 2013/48/EU on access to a lawyer in criminal proceedings (the ‘Access to a Lawyer Directive’), a possible indicator of future convergence in this area.

Background

The applicant, A.T. was questioned by police following surrender under a European Arrest Warrant (‘EAW’) (as to the cross-border aspect, see the post-script). On arrival, he demanded a lawyer. Police gave information (it is unclear what) which led him to accept to be questioned without one. He denied the offences. He was then questioned again before the investigating judge, with a lawyer present but (a) without having had the chance to talk with that lawyer beforehand and (b) without the lawyer having had sight of the case file prior to that questioning; again, he denied the offences.

A.T. argued that his defence rights had been breached as he had been denied access to a lawyer. The appeal court, and then the Court of Cassation, rejected this, essentially finding that he had agreed to be questioned without a lawyer and that no obligation arose to remedy any prejudice caused. With local remedies exhausted, A.T. applied to the ECtHR arguing a violation of Article 6 ECHR.

The legal territory: the Salduz principle Continue reading “A.T. V LUXEMBOURG: THE START OF THE EU-ECHR STORY ON CRIMINAL DEFENCE RIGHTS”

The EU’s new (internal) security agenda

ORIGINAL PUBLISHED ON STATEWATCH

by Chris Jones, May 2015

For anyone interested in an overview of the substantial law and order bureaucracy that the European Union and its Member States have constructed over the last four decades, and the direction in which it is heading, the European Commission’s recently-published ‘European Agenda for Security’ is worth a read. This article provides an overview of the key points.

The Agenda [1] opens by stating:
“The European Union aims to ensure that people live in an area of freedom, security and justice, without internal frontiers. Europeans need to feel confident that, wherever they move within Europe, their freedom and their security are well protected, in full compliance with the Union’s values, including the rule of law and fundamental rights.”
It follows on from the EU’s 2010 Internal Security Strategy and the ‘action plan’ that sought to implement it.
The Agenda was formally requested by the Justice and Home Affairs Council in December 2014, [2] through a set of conclusions that call for many of the same proposals put forward by the Commission.
It sets out a five-year “shared agenda between the Union and the Member States” that is supposed to lead to “an EU area of internal security where individuals are protected in full compliance with fundamental rights.”

On the basis of the Commission’s communication and ongoing political and legal developments, it is doubtful – to say the least – whether the proposed “full compliance with fundamental rights” will be achieved.
Instead, the Agenda looks likely to legitimise more repressive laws and policies at EU and national level.
What’s the Agenda? The Agenda will improve:

“information exchange”, including of personal data;
“increased operational cooperation” between policing, security, border guard and customs agencies, prosecutors, companies, etc.; and
“mutual trust [between different national authorities], drawing on the full range of EU policies and tools.”

The three main priorities are “terrorism, organised crime and cybercrime”, although the Commission is “remaining vigilant to other emerging threats [to security] that might also require a coordinated EU response.” The Commission’s broad concerns are that:
“In recent years new and complex threats [to security] have emerged highlighting the need for further synergies and closer cooperation at all levels [of state and industry]. Many of today’s security concerns originate from instability in the EU’s immediate neighbourhood and changing forms of radicalisation, violence and terrorism. Threats are becoming more varied and more international, as well as increasingly cross-border and cross-sectorial in nature.”
There are undoubtedly a number of serious ongoing crises within the EU’s “immediate neighbourhood”. Nevertheless, this rather vague statement also to some extent encourages fear of the unknown. In any case, it provides significant leeway for developing new laws, policies and activities.

The key principles The Agenda has five: Continue reading “The EU’s new (internal) security agenda”

The surveillance society (4): a further study for the European Parliament

Following the so called “Snowden revelations” at the end of the last legislature the European Parliament adopted a wide ranging resolution addressing the main problems arising from an emerging surveillance society. The resolution adopted inter alia “A European Digital Habeas Corpus” deemed to protect fundamental rights in a digital age.

Work on this sensitive issue is continuing also in this legislature as the European Parliament has to play a pivotal role in the establishment of the European Digital Agenda, the reform of data protection and to approve an “umbrella” agreement with the United States which is deemed to cover also the access to personal data for security purposes.

To support this Parliamentary strategy several studies have been done the last of them being a study done by the EP “Scientific and Technology Options Assessment “(STOA) which was presented in the responsible Parliamentary Committee (LIBE) Meeting on 23 April 2015.

The aim of the study is to propose measures to reduce the risks identified with the current generation of networks and services and to identify long-term technology oriented policy options for a better, more secure and more privacy friendly internet, whilst at the same time allowing governmental law enforcement and security agencies to perform their duties, and obtain quickly and legally all the information needed to fight crime and to protect national security interests.

The first part of the study concludes with a list of security solutions to help citizens protect themselves from illicit mass surveillance activities. In its Conclusions it recognise that “Mass surveillance is a reality today and has been applied for years by national intelligence agencies of a number of countries, namely those allied in the Five Eyes coalition, but also including EU members and other countries. The agencies involved in mass surveillance practices justify these methods with the doctrine of pre-emptive prevention of crime and terrorism and adopt the principle of omniscience as its core purpose. This objective of intercepting all communication taking place over Internet or telephone networks is in many cases pursued by applying questionable, if not outright illegal intrusions in IT and Telecommunication systems.This strategy accumulates an amount of information that can only be processed and analysed by systems of artificial intelligence, able to discern patterns which indicate illegal, criminal, or terrorist activities. While warranted and lawful interception of data on targeted suspects is a required and undisputed tool for law enforcement to access evidence, the generalised approach of information gathering through mass surveillance is violating the right to privacy and freedom of speech. The delegation of decisions on suspicious data patterns or behaviour of citizens to intelligent computer systems is furthermore preventing accountability and creating the menace of an Orwellian surveillance society. Many citizens are not aware of the threats they may be subject to when using the Internet or telecommunication devices. As of today, the only way for citizens to counteract surveillance and prevent breach of privacy consists in guaranteeing uncorrupted end-to-end encryption of content and transport channel in all their communications. Due to the amount/complexity/heterogeneity of tools this is however a task too complex to achieve for most of technically unexperienced user. This situation calls for both, awareness creation and the provision of integrated, user friendly and easy to use solutions that guarantee privacy and security of their communications. But policy makers must understand that the problem of mass surveillance can not be solved on a technical terrain, but needs to be addressed on a political level. An adequate balance between civil liberties and legitimate national security interests has to be found, based on a public discussion that empowers citizens to decide upon their civil rights affected and the societal values at stake”.

The second part of the study concludes with the proposal of several policy options with different levels of public intervention and technological disruption.

A STOA options brief below provides an overview of all the policy options and Two short Video-Clips have been published on YouTube to raise the awareness of the public.

Further information

Will the EU Migration Agenda (at last) propose to update the EU legislation on smuggling ?

By Isabella MERCONE (FREE Group trainee)

It appears that after the recent tragedies in the Mediterranean, the European Union could finally take action against deaths in the sea, and focus its efforts on the fight against trafficking of human beings. Indeed, in its special meeting on the 23th April, the European Council promised to ‘undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers’, while the High Representative was invited ‘to immediately begin preparations for a possible CSDP operation to this effect’.[1]

This statement has been perceived by some scholars as ‘a disproportionate measure’ as it mixes up different legal situation by covering smugglers, traffickers and even pirates in the same legal basket where the legal definition of these crimes is not the same so that this EU strategy looks too hasty and quite ‘an outrage to human rights and even to the rule of law.’[2] It has still to be seen if such a repressive approach will be endorsed at UN level (as it recently happened with the EU pressure for criminalizing the so-called “Foreign Fighters” phenomenon). The EU High Representative Federica Mogherini will brief the UN Security Council on the issue on Monday (11 May), and for the time being both the Russian and Chinese representatives and the UN Secretary General Ban-Ki-Moon have already expressed their contrary opinion, by saying that “Apprehending human traffickers and arresting these vessels is one thing, but destroying them would be going too far.”[3]

Smuggling an trafficking look similar but are legally different..

One can then guess if by proposing a bold action such as the destruction of smugglers boats, the European Union is not taking the wrong direction by using military means without a clear legal basis, outside its territory, when the issue should be more framed by criminal law measures be they linked to smugglers or to traffickers. Under this perspective it is worth recalling that, according to international law [4],
– ‘human smuggling’ is recognized as ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’, while
– ‘human trafficking’ is ‘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.’[5]

This is to say that the difference between the two phenomena could be often very subtle, because both of them usually concern the transport of persons from one country to another. However, the different purpose is clear: while the smuggler simply aims at receiving the benefit for the assistance provided for the illegal entry in another country, human trafficking requires evidence of the intent to exploit the trafficked person.
This is why human trafficking and human smuggling differ, although in the real life they can often overlap [6]: because, even if many desperate people are looking for the services provided by smugglers, not all of them are (fortunately) victims of trafficking, and they deserve different kind of support. Regrettably,these days the public debate and the press present these two different legal situations as if they were the same.
On his side, the European Union, even if it has established a broad legal framework concerning trafficking in human beings[7], has regrettably “forgot” to update its legislation on human smuggling, to effectively tackle this growing phenomenon.

An outdated EU legal framework for smuggling

It is worth recalling that the EU legal framework on smuggling (so-called “facilitators package”) dates back to 2002 and is composed by two [8]measures:

– Council Directive 2002/90/EC, that provides a common definition of the offence and requires Member States to adopt effective sanctions upon any person who intentionally assists a third-country national ‘to enter or transit across’ a Member State ‘in breach of the laws of the State concerned on the entry or transit’ of foreigners, and any person ‘who, for financial gain, intentionally assists’ a third-country national to ‘reside within’ a Member State in breach of its national laws on residence. Identical sanctions must also be applied to instigators or accomplices and those who attempt to commit the activities in question.There is a ‘humanitarian’ exemption, applying ‘where the aim of the behaviour is to provide humanitarian assistance to the person concerned’. But this exception is optional, and only applies to the first category of offence.[9]

– Framework Decision 2002/946/JHA, requires Member States to punish ail the conduct defined in the Directive by ‘effective, proportionate and dissuasive criminal penalties, which may entail extradition’, accompanied if appropriate by confiscation of transport, prohibition of practice of an occupation, or deportation. In cases of unauthorized entry or transit, there must be a maximum sentence of at least eight years if the activity was committed by a criminal organization or if committed while endangering a would-be migrant’s life.

These two measures were adopted as a partial implementation of the UN “Palermo” Convention and clearly only focus on the criminalization of smugglers. As such, they lack in addressing any other aspect of the problem, like prevention or protection of smuggled persons even if in particular there is still no EU requirement to criminalize (or to decriminalize) migrants who have breached immigration law as such.[10]
Instead of providing support and assistance to smuggled persons, who are often in difficult conditions before their departure, suffer great harm during the journey, and eventually find themselves “lost” in a foreign country, trying to build a new life, after having paid a great amount of money for a journey where they risk their life, the European Union decided to insist on the ‘need to combat illegal immigration’, reaffirming the importance of protecting State (EU) sovereignty, rather than providing legal forms of migration to people looking for a better life.

An issue for the EU Commission Migration agenda…

The humanitarian crisis in the Mediterranean is now apparently wakening up the EU and raising the awareness on the growing scale of the migration phenomenon. Moreover, after the Lisbon Treaty it could be possible for the same political majority [11] to adopt a comprehensive migration policy and frame in the same legal framework humanitarian and security aspects by creating a binding burden sharing between the EU MS.
Now it could be the right time for the EU to change its approach by taking the individual at the core of the EU policies, as required by the Charter of fundamental rights and by dealing with smuggling in a more comprehensive and consistent framework. To do do, in its “holistic” Migration agenda, the Commission should also take into account the European Parliament recommendations :

On the humanitarian side : to provide alternative and safer channels of legal migration by associating in the definition of the new EU strategy and legal acts.Notably, the ministers for social affairs as the Ministers of Interiors, who are currently in charge of these issues, still have a partial distorted view of the human mobility dynamics. In the same perspective, the EU and its MS should engage in information and awareness-raising campaigns to make would-be-migrants aware about the risks they might face in their irregular journeys towards Europe, and inform them about the existence of alternative, safer but affordable forms of migration. It would also be helpful to improve the support to ‘victims’ of smuggling (not only as it is currently the case when the victims cooperate in the criminal investigation, prosecution and trial of a smugglers), both at the moment of arrival and for an appropriate period after.

On the security side : to improve the cooperation among MS in the investigation and conduction of joint operations (supported by EU agencies such as Frontex, Europol and Eurojust) by strengthening in a consistent operational framework the exchange of information dealing with people which can be considered a “threat” for the EU such as smugglers[12], Traffickers and foreign fighters[13].

…or for the UN Security Council ?

EU institutions before launching military operations should take into account what in recent forum between Prosecutors of EU member states has emerged eg that most of the current prosecutions relate to the criminal activity committed by those who provide the transport of migrants in boats, whereas only a few of them address the leaders of the organised crime groups behind this phenomenon. The limited exchange of information through Europol and the lack of coordination between EU Member States should be considered the main obstacles in identifying these organised crime groups. Moreover, effective legislation is considered essential to address this phenomenon and to clearly distinguish between smuggling and trafficking activities, by extending law enforcement’s powers to enter adjacent territorial waters when in hot pursuit of vessels suspected of trafficking.

Last but not least, in the medium and long term perspective, given the trans-border nature of smuggling and human trafficking, consideration should be given to the need to ensure prosecution at EU level of THB and smuggling of migrants crimes, as well as the opportunity to extend the competence of the European Public Prosecutor’s Office (EPPO) also to this kind of crimes. However, it is less than likely that this straight but more legally ambitious solution would be chosen, instead of the slippery shortcut of military intervention.

Further Reading :

Steve PEERS “EU Justice and Home Affairs Law” (Third Edition) published on Oxford European Union Law Library (Chapter 7 Irregular Migration)
Shelley L., “Human Smuggling and Trafficking into Europe: a comparative prospective”, Washington DC, Migration Policy Institute, 2014.
Gallagher A.T., “Trafficking, Smuggling and human rights: tricks and treaties”, Forced Migration Review, 12 (2003), 25-28. NOTES
[1] European Council, ‘Special meeting of the European Council, 23 April 2015 – statement’, 23/04/2015, available at: http://www.consilium.europa.eu/en/press/press-releases/2015/04/23-special-euco-statement/
[2]See, for instance, Gabriella Carella, ‘Tratta degli esseri umani, uso della forza internazionale e prevenzione dei naufragi ( … dello stato di diritto)’, available at: http://www.sidi-isil.org/sidiblog/?p=1417
[3] EUObserver, ‘Russia to oppose EU sinking of migrant smuggler boats’, https://euobserver.com/foreign/128597
[4] Article 3(a) of the UNDOC Smuggling Protocol (‘Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime’, GA Res. 55/25, Annex III, UN GAR, 55th Sess., Supp. No. 49, at 53, UN Doc. A/45/49 (Vol.1) (2001), done Nov.15, 2000, entered into force Dec. 25, 2003)., available at: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
[5] Article 3(a) of the UNDOC Trafficking Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, GA Res. 55/25, Annex II, UN GAR, 55th Sess., Supp. No. 49, at 53, UN Doc. A/45/49 (Vol.1) (2001), done Nov.15, 2000, entered into force Dec. 25, 2003), available at: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
[6] It is not unusual that a victim of smuggling later on also falls into the hand of a trafficker, in order to pay off his debt for the journey (traffickers ad smugglers often know each other and cooperate).
[7] See primarily the Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA and the EU Strategy toward the eradication of trafficking in human beings 2012-2016.
[8] In the pre-Lisbon the legal basis for criminal sanctions was in the intergovernamental regime framing the judicial cooperation in criminal matters (so called “ third pillar”).
[9] See Steve PEERS “EU Justice and Home Affairs Law” (Third Edition) published on Oxford European Union Law Library (Chapter 7 Irregular Migration)
[10] It should not be forgotten, however, that Article 31 of the Geneva Convention on refugee status exempts refugees who have entered or stayed irregularly from penalties under certain circumstances.
[11] Before the Lisbon Treaty legislation on Legal migration required the unanimity in Council.
[12] Actually, a provision concerning Communication of information between the Member States is already established by article 7 of Directive 2002/90/EC, but so far it is not clear if the MS have adequately implemented this provision.
[13] It is worth recalling that Europol has recently established a “Focal Point (FP) Travellers” which is mainly focused on so called “foreign fighters” and which is opened to all the EU Member States as well as to third countries such as Australia, Norway, Switzerland and the US Custom and Border Protection Service (CBP). Eurojust has also asked to be associated.

The surveillance society (3) by David COLE

Original published on TIME

NSA Ruling Is a Victory for Privacy

By David COLE (*)

Renew the NSA’s authority — but only if it is significantly reined in

In a major victory for privacy and democracy, the U.S. Court of Appeals for the Second Circuit ruled today that the National Security Agency has been illegally collecting information about Americans’ phone calls—all Americans’ phone calls—for at least nine years. In the name of fighting terror, the agency has been collecting records on all of us—who we call, when we call, and how long we talk, although not the contents of the calls—without regard to whether we are connected to terrorism. The court unanimously ruled that the NSA’s massive “phone metadata” program, first revealed by Edward Snowden in June 2013, is not authorized by the statute the NSA has long relied on to conduct the program. Congress is currently considering whether to renew, reform, or let the provision expire. Today’s ruling should inform Congress’s debate, and supports renewing the NSA’s authority only if it is significantly reined in.

The court’s decision turned on the meaning of Section 215 of the USA Patriot Act, passed shortly after 9/11. It authorizes the government to obtain records from businesses if they are “relevant” to an “authorized investigation … of international terrorism.” This language would plainly enable the NSA to obtain the phone calling records, for example, of a suspected terrorist, or of persons closely connected to him. But in a secret interpretation allowed by a secret intelligence court in 2006, the NSA asserted that this provision empowered it to obtain the phone records of every American, regardless of whether they were in any way connected to terrorism. It’s that interpretation that the U.S. Court of Appeals wisely rejected today.

The NSA argued that every American’s records were “relevant” and therefore subject to collection because at some point in the future they might come in handy to a terrorism investigation. But as the court of appeals reasoned, that theory is limitless. It would authorize the NSA to collect all business records about everyone—including financial records, medical records, and email and internet search records—without any showing of an actual tie to terrorism.

The court of appeals is not the first to find the NSA’s interpretation a stretch. When Representative Jim Sensenbrenner, a Wisconsin Republican who drafted the Patriot Act provision in question, learned of the NSA’s interpretation, he said that he never intended it to authorize such “dragnet collection” of information on innocent Americans. The Privacy and Civil Liberties Oversight Board, a government oversight body created by Congress and appointed by the president, concluded in January 2014 that Section 215 did not authorize the NSA’s program.

But the unanimous decision of the federal court of appeals has the force of law. More important, its opinion makes eminent sense, underscoring that when Congress gives the executive authority to obtain information only where it is relevant to a specific investigation, the NSA should not secretly expand that to collect records on us all.

The court’s timely decision comes as Congress is considering what to do about Section 215. A bipartisan group of members, including Senators Pat Leahy and Mike Lee, and Representatives Sensenbrenner and John Conyers, has introduced the USA Freedom Act, which would end the NSA’s bulk collection authority, and allow it to seek phone records only when reasonably connected to specific identifiers or “selectors” tied to terrorism. Senator Mitch McConnell, by contrast, has proposed a bill that would reauthorize Section 215 with no reforms whatsoever.

Congress should be guided by the federal appeals court’s careful reasoning. As the court found, the authority asserted and exercised by the NSA was entirely unprecedented. It goes far beyond any preexisting authority to obtain records in any other investigative context. Digital technology makes this possible; the government can now track us in ways that until very recently were simply impossible. But just because it can do so doesn’t make it right to do so. If we are to preserve our privacy in the digital age, we must confront that reality and insist that the government’s new spying technologies be appropriately constrained.

Congress should pass the USA Freedom Act. But doing so will by no means be sufficient. Snowden revealed a wide range of NSA spy programs that intrude on the privacy rights of innocent Americans and non-Americans alike. The USA Freedom Act deals only with one such program. But the court of appeals, and the USA Freedom Act, point the way forward in a more general way. If we are to rein in the NSA, we must insist first that there be public debate before the government institutes sweeping new surveillance programs, and we must demand, second, that surveillance be targeted at individuals as to whom there is suspicion of wrongdoing, and not applied indiscriminately to us all.

(*) George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center.

The Surveillance Society (1) by Emilio Mordini

Original published HERE

By Emilio MORDINI

Today (May 7) a US federal appeals court has ruled the phone metadata program of the National Security Agency’s (NSA) is illegal. Metadata is ancillary details generated by a piece of information. Telephone metadata includes details such as the length of a call, the phone number from which the call was made, the phone number called, the telephone devices used, the location of the call, and so. Telephone metadata do not include voice recording and call contents. In 2014 Stanford computer scientist and lawyer, Jonathan Mayer, demonstrated that from phone metadata it is possible to draw very sensitive inferences, such as details about an individual’s familial, political, professional, religious, and sexual life. Mayer demonstrated that metadata are highly meaningful even in a small population and over a short time period.

The NSA’s telephone metadata program, which started seven months before the September 11, 2001, collected metadata of hundreds of billions of telephone calls made along several years through the largest telephone carriers in the United States. In 2006, the existence of the NSA program was brought to the light by USA TODAY. However, it was only on June 5, 2013 that The Guardian published a top-secret document, which provided the conclusive evidence that the NSA collected phone metadata from hundreds of millions of phone subscribers. Such a document was included in NSA classified files leaked by Edward Snowden.

On June 11, 2013, the American Civil Liberties Union (ACLU) filed a lawsuit against the NSA, challenging the legality and constitutionality of the phone metadata program. On Dec 16, 2013 the District Court for Southern District of New York ruled the phone metadata program was legal and does not violate the Fourth Amendment (on August 29, 2013, the Foreign Intelligence Surveillance Court had already stated that phone metadata: “is not protected by the Fourth Amendment, since the content of the calls is not accessed”). The ACLU appealed against this decision. Now the court of appeals has definitely ruled that phone metadata program is illegal, because it “exceeds the scope of what Congress has authorized and therefore violates § 215” of the Patriot Act. Ruling the illegality of the program, the court avoided taking a stance about its constitutionality. However, what is interesting is the court’s main argument, say, the Patriot Act § 215 provides the legal framework for investigation, but not for a generic threat assessment. Investigation – argues the court – is an activity that entails “both a reason to conduct the inquiry and an articulable connection between the particular inquiry being made and the information being sought. The telephone metadata program, by contrast, seeks to compile data in advance of the need to conduct any inquiry (or even to examine the data), and is based on no evidence of any current connection between the data being sought and any existing inquiry”. Why is this argument intriguing? Because it implies a counter-intuitive explanation of surveillance policies.

Why so many governments and rulers are passionate of surveillance technologies? Because they want to know everything about us, the standard account goes. No, the court tells us; they spy because they do not have any inquiry to do, any explanation to test, any investigation to carry out. Briefly, because they do not know, are not able to know, and do not want to know. They do not understand the world and its conflicts, they do not have interpretation grids, they cannot figure out the future. They are just “walking shadows, poor players that strut and fret their hour upon the stage”. They spy just for spying, because of their political emptiness, because of their intellectual laziness. Surveillance is for them the obscene surrogate for knowledge. Understanding is precluded by their shortsighted view; modern, sophisticated, technologies become a surrogate for intelligence.

Today, privacy advocates are celebrating, yet this sentence makes justice also of some of their paranoid fantasies. The surveillance society is not ruled by the big brother, rather by an idiot Peeping Tom.

CHEERLEADING OR JUDGING? THE CJEU UPHOLDS THE EU’S UNITARY PATENT SYSTEM

ORIGINAL PUBLISHED IN EU LAW ANALYSIS

by Steve Peers

Two new CJEU judgments (here and here) have today upheld the legality of the EU rules on the unitary patent. To what extent are the Court’s reasons convincing and coherent?

Background

The background to today’s rulings was summarised in my previous blog post, on the Advocate-General’s opinion. Suffice it to say that: the EU has tried for decades to agree on patent rules, and the Treaty of Lisbon created a specific legal base for the adoption of EU intellectual property rules (Article 118 TFEU). The main rules are to be adopted by the ordinary legislative procedure (qualified majority voting in Council, joint power for the European Parliament), but the languages rules, which apply in this case to translations of the patent (or patent claims), must still be agreed by unanimity.

Since Member States could not reach the required unanimity on the patent translation rules, most Member States agreed to apply the process of ‘enhanced cooperation’, ie adopting EU legislation that applied to some Member States, but not others. This entailed a two-step procedure: authorisation of enhanced cooperation by the Council (by a qualified majority vote of all Member States), and then the adoption of the legislation to implement enhanced cooperation, with only the participating Member States voting. Spain and Italy challenged the initial authorisation (adopted in 2011) regarding patents, but the CJEU ruled against them in 2013. The two Regulations implementing enhanced cooperation in this area were adopted, in the meantime, at the end of 2012, concerning the substantive rules governing a ‘unitary patent’ and thelanguage rules. Spain (this time without Italy) challenged these measures in turn; those two challenges are the subject of today’s judgment.

The EU legislation on this issue is closely linked to two international treaties. First of all, the European Patent Convention, agreed in 1973, which binds all EU Member States and a number of non-Member States, and which sets up a legal framework for registering a patent in a number of European countries, by means of an application to the European Patent Office which it established. This results in a ‘European patent’, but the legal title concerned is not genuinely uniform, but depends on the national law of each of the countries where the patent is registered. The point of the EU legislation is to create a form of European patent that will have uniform existence in all of the participating Member States, also reducing the costs of translation that would otherwise apply.

The second treaty concerned is a treaty among Member States creating a Unified Patent Court, in order to reduce the costs of litigation concerning European patents and the planned unitary patent. (Although the CJEU had objected to aspects of these plans in its Opinion 1/09, Member States believe that they have addressed the Court’s concerns). That treaty will come into force once thirteen Member States, including France, Germany and the UK, have ratified it. So far six Member States have, including France. The application of the EU’s unitary patent law is dependent upon this treaty coming into force, and the unitary patents will only be valid in Member States which have ratified the treaty (all Member States except Spain, Poland and Croatia have signed it; all Member States except Spain, Italy and Croatia participate in the Regulations).

The judgments

Spain’s legal arguments against the two EU Regulations differed somewhat. As regards the main Regulation, Spain argued that it was invalid because it created a unitary patent dependent upon the acts of the European Patent Office, whose acts are not subject to judicial review. Secondly, the Regulation did not create ‘uniform protection’ within the meaning of Article 118 TFEU. Thirdly, there is a ‘misuse of power’, ie enhanced cooperation was used for a purpose other than the Treaties allow for. Next, the Regulation breached the rules concerning the conferral of implementing power upon the Commission, because it gives power to the Member States to decide on issues such as renewal fees.

As regards the languages Regulation, Spain argued that the special status of the French, English and German languages set out in that Regulation was discriminatory. Also, it argues that there is no legal power for the EU to regulate language issues in the event of a dispute, as the Regulation does, and that the Regulation violates the principle of legal certainty.

In both cases, Spain argued that the rules on adopting implementing measures were invalid, since powers to implement EU law were granted to a non-EU body, the European Patent Office. Also, it argued that making the application of the Regulations dependent upon the ratification of the treaty creating the unified patent court breached the principle of the autonomy of EU law.

The CJEU has rejected all of these arguments. In its view, the main Regulation doesn’t violate the rule of law, since it simply takes the form of a ‘special agreement’ as provided for in the EPC. Secondly, the Court said that Article 118 TFEU was the correct legal base for the legislation, since it established a system of uniform protection for unitary patents. It did not matter that it referred to national law as regards some issues, since Article 118 does not require the EU to fully harmonise the particular intellectual property right at issue, and at least this provided for more harmonisation than the EPC, which is in effect a bundle of national patents. Thirdly, there was no ‘misuse of power’, since the Regulation did not secretly aim at a purpose other than its purported end. Next, it was acceptable for the Regulation to confer upon Member States the power (acting via their participation in the EPO) to implement its rules, since the EU Treaties only require implementing powers to be conferred upon the conditions where ‘uniform’ implementing measures were required. Nor did the Regulation violate the ‘Meroni principle’ of an impermissible delegation of discretionary powers. Finally, the Spanish government’s challenges relating to the unified patent court treaty were inadmissible, and its challenge to the rules on the timing of the application of the Regulation were rejected on the merits. The Court ruled that the EU is free to defer application of EU legislation until preparatory steps have been taken, and that limiting the application of the Regulation to those Member States which have ratified the unified patent court treaty was acceptable, since it only affected a few provisions of the Regulation.

As for the languages Regulation, the CJEU ruled that while it was discriminatory in principle to confine translations to three languages only, there was no rule of EU law that all EU languages have to be equally valid as regards all issues linked to EU law. The discrimination as regards languages could be justified by the need for reducing costs and therefore encouraging innovation. It was appropriate to use the three languages already used by the EPO, in light of the link between the EPO and the EU system, and the EU law was not disproportionate, in light of the rules in the Regulation designed to address the concerns of patent holders using other languages. The Court also ruled that the entire Regulation fell within the scope of the ‘legal base’ relating to languages issues, and that there was no breach of the principle of legal certainty.

Comments

The CJEU did not really rule on any of the many interesting questions about thesubstantive grounds governing the implementation of enhanced cooperation, simply because Spain did not raise them. However, the argument relating to discrimination touches indirectly upon those issues.

Parts of the Court’s ruling are convincing, particularly as regards the possibility of delaying the entry into force of EU laws to wait for other developments, the ‘legal certainty’ issues relating to the languages Regulation and the legal base issue regarding the same Regulation. However, with respect, some of its reasoning was only partially convincing. The Court’s case for using a limited number of languages is sensible only if one accepts its underlying premise that the unitary patent system will have the overall impact of enhancing innovation. Many critics of the patent system argue that it does the reverse, by giving an overly lengthy monopoly to the patent-holders. To be fair, though, it would be too much to expect the Court to enter into this argument, particularly since Spain did not raise it.

Similarly, the Court’s argument that the Meroni principle was not infringed is sensible enough – if one accepts its separate conclusion that the main Regulation validly conferred implementing powers upon Member States. But that conclusion brings us to the chain of contradictions in the Court’s reasoning. For the powers that Member States will exercise when implementing the unitary patent Regulations will not result in divergent approaches in each country’s individual national laws, as is normally the case when Member States are left with the powers to implement EU law in practice. Rather, they must exercise their powers collectively, to adopt uniform rules regarding the unitary patent, within the context of the EPO. Indeed, the Court’s other conclusionsinsist upon the uniform nature of that patent. This points us inexorably toward the conclusion that uniform rules to implement the Regulations were necessary – which means (according to the Treaties) that such powers ought to have been conferred upon the Commission.

For the same reasons, the Court’s dismissal of the argument against limiting the application of the main Regulation to those Member States which have ratified the unified patent court treaty is unconvincing. The Court is indeed right to say that this limitation affects only a few provisions of the Regulation – but these are the provisions relating to the uniform nature of the patent, which the Court relied on so heavily when it defended the legal base of this Regulation.

This stress on the uniform nature of the patent also contradicts the first part of the Court’s reasoning on the main Regulation, which deferred to the EPC system and argued rather that EU law did not alter that system at all. The Court did not adequately answer the argument that the EU lacked power to do this, and entirely side-stepped the important argument that the EPO should be subject to judicial review. This contrasts with the Court’s famous insistence in Kadi upon the need for adequate review of international bodies whose acts impact upon the EU legal order.

In the Court’s view, the unitary patent system is valid because it largely refers back to the EPO system, and also because it does not. With respect, the Court is trying to have its cake and eat it too. A better argument would have been to embrace the hybrid nature of the system rather than run away from it. After all, the drafters of the Treaty of Lisbon were well aware of the existence of the EPO. In light of the discussions on a possible EU patent which were underway when that Treaty’s predecessor (the Constitutional Treaty) was drawn up, a hybrid solution based on a combination of the EPO and EU law was presumably exactly what the Treaty drafters were aiming to facilitate when they added Article 118 TFEU to the Treaties.

Whether the Treaty drafters ought to have intended this is, of course, another question. But the best place for a debate about the fundamental merits of intellectual property protection is the political arena, not the courts. While today’s judgments confirm the legal validity of the EU’s unitary patent system, and enable it to go forward in the near future (after several more ratifications of the patent court treaty), their circular and contradictory reasoning suggests that the Court simply wanted to approve the patent system regardless of the legal arguments against. But this approach to judicial analysis could ultimately hinder, rather than bolster, the broader legitimacy of the unitary patent system.

Terrorisme : La France n’est pas seule concernée mais la France doit aussi se sentir en cause ..

OPINION (ORIGINAL PUBLISHED HERE)

par Simone GABORIAU
Présidente de chambre honoraire de la cour d’appel de Paris (Membre du Conseil d’administration de M.ED.E.L).

Apres les attentats des 7, 8, 9 janvier, les plus meurtriers qu’ait connus la France depuis plus de 50 ans (1), après la stupeur, l’émotion et l’union, le temps de la réflexion rationnelle s’impose. Il faut le faire en France et au sein de l’Europe des droits de l’homme mais aussi dans le contexte de l’environnement humanitaire mondial.
Les actes terroristes ne sont pas nouveaux dans l’histoire du monde
Contrairement a bien des idées reçues, le terrorisme n’est pas le fruit du malheur de notre temps mais appartient a une histoire ancienne.
« L’histoire mondial du terrorisme concerne la totalité du monde et ne fait pas de distinction entre continents, aires culturelles et religieuses (2) ».
Du terrorisme interne au terrorisme international, les origines en ont été multiples ; y ont été représentées : toutes les religions, divers courants de pensée, des mouvements irrédentistes, ou de résistance à l’oppression ou de conquête d’indépendance face au colonisateur… Certains groupements ont été héroïses d’autres diabolisés. Certains ont été vaincus par la force ou la répression, d’autres se sont finalement assis a des tables de négociations. Sans oublier de citer le « terrorisme d’Etat » dont l’origine est notamment à « la terreur » de la Révolution française, reprise par la Révolution russe et qui peut s’appliquer à bien des situations de terreur d’Etat qui ont sévi ou sévissent encore dans le monde.

Un terrorisme devenu global

Les attentats du 11 septembre 2001, ont révélé que l’on doit, de plus en plus, faire face à un terrorisme global, en ce qu’il emprunte les moyens de la globalisation technologique et financière pour relier des individus, ou groupes, terroristes, indépendamment de leur base territoriale.
Cette nouvelle dimension a facilité la montée en puissance du terrorisme se revendiquant du radicalisme islamique lequel, actuellement, serait responsable de la majorité du nombre de victimes (3).
Mais il faut se garder, d’interpréter cette situation comme une manifestation du « choc guerrier des civilisations » car ce serait tomber dans le piège tendu par ce terrorisme.

La reconnaissance d’une communauté mondiale de valeurs (4) ?

Ce caractère global a plus que jamais motive la volonté de coopération internationale. Apres l’échec de la SDN, l’ONU peine a l’établir de façon compatible avec la sauvegarde des droits fondamentaux comme l’illustre le système des « listes noires » finalement annulé par la Cour de justice des communautés européennes (5).
Cette communauté de valeurs parait avoir été mieux sauvegardée au niveau européen, a tout le moins, par le rôle des juridictions Cour Européenne des droits de l’homme et Cour de justice des communautés européennes.

La montée en puissance de la reconnaissance des victimes

Dans cette communauté de valeurs, la personne de la victime a pris une place grandissante. L’acte terroriste qui trouvait jusque dans les années 1970-80, bien des gens pour l’excuser ou le légitimer est devenu d’autant plus insupportable qu’il visait des civils définis des lors comme des victimes par excellence (6).
Le discours public en France, et sans doute dans bien des pays, est particulièrement sensible a la prise en compte des victimes. C’est, au reste, un des progrès récent de nos sociétés démocratiques.

Brève, et non exhaustive, analyse de la situation Française Continue reading “Terrorisme : La France n’est pas seule concernée mais la France doit aussi se sentir en cause ..”

The revision of the EU Anti-Money Laundering legal framework is fast approaching..

By Dalila DELORENZI (Free Group trainee)

1.Foreword

Broadly speaking Money laundering means the conversion of the proceeds of criminal activity into apparently clean funds, usually via the financial system by disguising the sources of the money, changing its form, or moving the funds to a place where they are less likely to attract attention. Terrorist financing is the provision or collection of funds, by any means, directly or indirectly, with the intention that they should be used or in the knowledge that they are to be used in order to carry out terrorist offences. At EU level since 1991 at EU level legislation has been introduced to limit these activities and to protect the integrity and stability of the financial sector and, more in general, of the Internal Market. The EU rules are to a large extent based on Recommendations adopted by the Financial Action Task Force (FATF) which is an intergovernmental body with 36 members, and with the participation of over 180 countries in the world.

The directive currently into force is the Third Anti-Money Laundering (AML) Directive which applies to the financial sector (credit institutions, financial institutions) as well as to professionals such as lawyers, notaries, accountants, real estate agents, casinos and company service providers. Its scope also encompasses all providers of goods, when payments are made in cash in excess of EUR 15.000. All these addressees are considered “obliged entities”. The Directive requires these obliged entities to identify and verify the identity of customers (so-called customer due diligence, hereinafter ‘CDD’) and beneficial owners, and to monitor the financial transactions of the customers. It then includes obligations to report suspicions of money laundering or terrorist financing to the relevant Financial Intelligence Units (FIUs), as well as other accompanying obligations. The Directive also introduces additional requirements and safeguards (such as the requirement to conduct enhanced customer due diligence) for situations of higher risk.

In force since 2005 the third Money Laundering Directive required a revision against the backdrop of the constantly changing nature of money laundering and terrorist financing threats, facilitated by a constant evolution of technology and of the means at the disposal of criminals. In particular, the recent terrorist attacks in Paris have increased the necessity of decisive actions against terrorist financing and further efforts need to be made in adapting the current framework to a different reality. Therefore in accordance with this purpose, at the international level measures have been taken by the Financial Action Task Force (FATF): a fundamental review of the international standards has been undertaken and a new set of Recommendations have been adopted in February 2012.

In parallel to the international process, the European Commission with a view to complying with the international standards has undertaken its own review of the European Anti-Money Laundering framework. This revision consisted in an external study (the so called Deloitte study) on the application of the Third AMLD (Directive 2005/60/EC) and in extensive contacts and consultations with private stakeholders and civil society organisations, as well as with representatives of EU Member State regulatory and supervisory authorities and Financial Intelligence Units (FIUs).

The results of the Commission’s review were set out in a Report , addressed to EU Parliament and Council, where it was analysed how the different elements of the existing framework have been applied and how it may need to be changed, highlighting the necessity to introduce clarifications or refinements in a number of areas.

More specifically, the main problems in the current EU anti-money laundering/combating terrorist financing legislative framework are: (i) inconsistency with the recently revised international standards; (ii) different interpretation and application of rules across EU Member States; and (iii) inadequacies and loopholes with respect to the new money laundering and terrorist financing risks.

2. The EU Commission’s proposals Continue reading “The revision of the EU Anti-Money Laundering legal framework is fast approaching..”

(EPPO) European Public Prosecutor: also the European Parliament wants a say…

by Giuseppe RIZZO (Free Group Trainee)

How a simple “yes or no” could be complemented by a political dialogue

After almost two years since the European Commission’s Proposal for a Regulation on the establishment of a European Public Prosecutor’s Office (EPPO), the Council of the European Union is still negotiating the rules concerning the institution and the action of the EPPO (see preparatory documents here).

According to art. 86 of the TFEU, this new body could be established with unanimity within the Council of the EU or with an enhanced cooperation by at least nine Member States. It is worth noting that unlike the ordinary legislative procedure in the EU, art. 86 of the TFEU establishes a special legislative procedure where the Council has to take the final decision even if the European Parliament can approve or reject the Council’s text.. This institutional model which can be sensible when international agreements are at stake (as the EP like the national parliaments can only ratify or reject them) , when applied at legislative level is not consistent with the general rule according to which EU legislation should result from an agreement between the Council which represent the national governments and the European Parliament as direct representative of EU Citizens.

To overcome this political and institutional imbalance the EP in the cases of legislation to be adopted by simple consent ,has established a practice through which it try to influence the position of the Council by adopting interim reports with recommendations. The latter even if not legally binding could have a political weight and should be taken in account by the Council if it wants avoid the risk of rejection of its text and the need to re-start from scratch a new procedure (as it already happened after the rejection of some international agreements).

The EP Interim reports

On the EPPO proposal the European Parliament already adopted on 12^th March 2014 in the previous legislature an interim resolution which was focused on issues such as the jurisdiction of the future Institution, if and how decisions taken by the prosecution could be appealable, the relations between the EPPO and other already existing Agencies and bodies such as Eurojust and OLAF. The 2014 EP LIBE resolution highlighted, the relation between the Member States notably in case of adoption of the EPPO regulation following the “enhanced cooperation” procedure (by so trying to frame the relation between participating and non-participating Member States).

One year after the LIBE Committee has drawn up another Interim Report that will be discussed next week by the plenary in Strasbourg.

In this new report the LIBE Committee takes stock of the current state of negotiations in the Council, and focus on the most important characteristics of the future EPPO. Notwithstanding the reservations of several national parliaments LIBE confirms the necessity and urgency of building up the new body also to overcome the Member States persistent unwillingness to follow the recommendations for prosecution issued by OLAF (followed only in 31% of the cases from 2006 to 2013).

LIBE also agree that for the time being that the competence of the future EPPO should be limited to offences relating to fraud against the financial interests of the Union, even if the spreading of the terrorist threat in the EU could had suggested a wider EPPO competence taking stock of the limits of Europol and Eurojust in this sensitive domain. But even if limited to the protection of financial interests the new competence should be further defined as nowadays there is not yet a uniform definition of what constitutes illegal activities “affecting the EU’s financial interests”. In principle this legal gap will be soon overcome by another legislative text currently negotiated between the EP and the Council [1], the so-called “PIF” Directive (from the French acronym: protection des intérêts financiers) which will also define the scope of the material competence of the future EPPO which will be the subject of an incoming post of this blog.

Structure and competence of the EPPO Continue reading “(EPPO) European Public Prosecutor: also the European Parliament wants a say…”