Category: 8. Judicial cooperation

EU Internal Security strategy: towards a EU-USA common path?

The traditional meeting between the justice and home affairs ministerial representatives of the United States of America (USA) and of the European Union (EU) took place the 8th and 9th December 2010. Ms Janet Napolitano, from the Department of Homeland Security and Mr Eric Holder, General Attorney of the Department of Justice have discussed with the European Union presidency and the Commissioners Ms Cecilia Malmström and Ms Viviane Reding the transatlantic initiatives, both planned and underway- aimed at preventing and combating terrorism and organised crime.

The meeting confirmed the hegemonic and inspiring role that the American administration has towards the European Union when it comes to defining and implementing the European Internal Security Strategy (ISS).

This is true when it come to the synchronisation of the EU’ activities, since the Justice and Home Affairs Council which took place in Toledo in February 2010 adopted the strategy while the US administration approved the Fourth revision of its own internal security strategy.

It is also true in relation to the increasing concurrence of the objectives underpinning it. After all this is not so surprising for two allies which cooperate on a daily basis in all different domains, going from intelligence, money laundering, to the fight against drugs.

Therefore, the European ISS includes the fight against cyber crime, measures aimed at the protection of commercial flights and cargo safety, use of financial personal data and airplanes passengers. These objectives have been recalled by the Commission in its recent Communication entitled “The EU Internal Security Strategy in Action: Five steps towards a more secure Europe”.

The crucial element here is that while these objectives correspond to what the Congress requested, this is not the case for the European Union, where the position of the European Parliament – which should ensure the legislative transposition of some of these objectives- is much more cautious than the one of the Congress. This is even more striking  if one take into consideration the fact that the Congress is considered even more demanding than both the Bush and Obama Administration, for instance, concerning borders control with the creation of an entry-exit system and limits to visa liberalisation.

The opposition of the Strasbourg Assembly to the indiscriminate collection and systematic storage of personal data of millions of air passengers (PNR) for several years is renowned. Especially, because these data includes also those of individuals which are not wanted nor suspects and that, even after the controls, are not considered a danger for the flights safety.

That is why the Council of the European Union adopted the 3rd December 2010 a negotiation mandate to the Commission which should allow revising in a more restrictive manner the data protection provisions which are provisionally applied on the basis of the EU-USA agreement, since 2007.

It goes without saying that it would be rather naïve to expect the American Administration to welcome such a measure, especially because the new Republican majority in the Congress would interpret it as a lowering down of the guard. Nevertheless, it is also self-evident that the current agreement risks to be rejected by the European Parliament at any moment and this possibility would open a dangerous vacuum, also for the aviation companies.[1]

Rather, it is reasonable to expect a greater willingness from the European Parliament’s side to adopt measures concerning the fight against cyber-crime, one of the USA priority for a long time and recently recalled by the Obama Administration during the last EU-USA summit of 20th November 2010 in the Joint EU-US Statement. The summit promoted a EU-USA working group in the field of cyber security and cyber criminality, which within a year will present a report on a series of initiatives, such as those discussed in the recent EU-US-NATO summit of the 24th November. These measures includes among others,

–       the creation of Computer Emergency Response Team (CERTs) in each European country, along the lines of the corresponding American centres, with the support of the European Agency responsible for network security (ENISA)

–       – the implementation of an emergency network

–       The creation of a sort of control room at the European level, as indicated by the Commission in its proposal for an internal security strategy.

These measures should be complemented by legislative measures such as the Proposal for a Directive on attacks against information systems, currently under review by the European Parliament. This measure will probably get inspiration from the Convention on Cyber crime of the Council of Europe, ratified by the United States itself.

However, all these measures, as well as the last ministerial meeting, all share the same unresolved problem related to the different data protection standards existing in the two sides of the Atlantic, namely in relation to public security. On the one hand, in the United States the protection of privacy and personal data is not considered a fundamental right (at most a penumbral right, subordinated to the safeguard of the right of expression foreseen by the first amendment and to the right of residence foreseen by the fourth amendment). On the other hand, in the EU, these rights are recognised as fundamental by art. 8 of the European Convention on Human Rights as well articles 7 and 8 of the Charter of Fundamental Rights.

Indeed, the European Parliament has requested, especially after 9/11 a transatlantic binding agreement in this field. This could eventually take place on the basis of negotiation mandate which the Council conferred to the Commission on the 3rd December and that Vice-President Reding has already presented to the Parliament.

Theoretically, the US authorities should not oppose it given that the mandate recalls the recommendations made by a common working group which has elaborated a series of common principles. However, the American authorities fear that the new agreement will make more difficult the transfer of data that is already taking place under the EU-USA agreement in the field of judicial cooperation in criminal matters, the agreements with Europol and Eurojust and more importantly the various bilateral agreements negotiated in the last decades between the USA and the EU Member States, in the field of security and fight against crime.[2]

The next months look quite challenging and it will be interesting to follow not only the negotiations but also the tone of the dialogue that will be established between the Congress and the European Parliament, i.e. whether  they will be able to share to a greater extent the perception of a threat and therefore the need to a common answer.

If this will take place, it could be possible to open the way to a Transatlantic Schengen-like space which ahs already been announced in the  EU-US Joint Statement on “Enhancing transatlantic cooperation in the area of Justice, Freedom and Security”

EDC

[1] The same issue is true for those measures which are considered too invasive for the individual privacy, such as the installation of body scanners (1300 are foreseen to be installed in the USA and a few tens in the European Union). It remains to be seen what the European Union will do to implement the new international strategy in the field of aviation security adopted by the 37th ICAO Assembly which took place on 8th October 2010 (Comprehensive Aviation Security Strategy) (ICASS).

[2] See Prüm-like agreements on the basis of which the EU Member States committed themselves to transfer information, , to the United States. These transfer include sensitive information, such as DNA codes, in exchange of looser conditions to obtain visa for their citizens.

 

SWIFT and PNR resolutions adopted by the European Parliament

The European Parliament adopted on the 5th May 2010 the two resolutions on SWIFT and PNR:

European Parliament resolution of 5 May 2010 on the Recommendation from the Commission to the Council to authorise the opening of negotiations for an agreement between the European Union and the United States of America to make available to the United States Treasury Department financial messaging data to prevent and combat terrorism and terrorist financing

European Parliament resolutionof 5 May 2010 on the launch of negotiations for Passenger Name Record (PNR) agreements with the United States, Australia and Canada

The European Parliament to vote on PNR

The European Parliament will vote the resolution on the PNR agreement during the mini-plenary that will take place in Brussels on Thursday 6 May 2010.

This after the LIBE Committee announced in April the intention to postpone the vote on the EU-USA PNR agreement, calling the Commission to put forward a more comprehensive measure defining common data protection terms.

The European Commission is therefore going to put forward a more coherent “package” which will include:

a) a Communication listing general standards that should apply to any PNR agreement (regulate external aspects)

b) a PNR directive which will be a “lisbonisation” of the current agreement and

c) a recommendation for a negotiating mandate with the USA, CANADA and Australia on PNR.

There are several loopholes that have been identified by experts, academics as well as Members of the Parliament which refer to other on-going negotiations as well, namely the so-called SWIFT Agreement and the Framework Agreement on data protection and data sharing.

Different understanding of privacy and data protection

Privacy and data protection are two different albeit interlinked principles and this distinction needs to be applied in the internal and external dimension of the EU.

The right to privacy is not absolute. In fact most of the emphasis is on the conditions under which restriction could be imposed. The right to data protection always applies when personal data are processed. Indeed, the European Court of Human Rights has emphasised that in applying data protection principles also article 8 of the European Convention on Human Rights must be respected.

This interlink becomes increasingly important in relation with data sharing measures and even more when they entails international agreements with third countries, such as in the case of Passenger Name Record (PNR).

In the transatlantic arena, for example, the different understanding of data protection and privacy further complicate the issue, since the U.S. approach to privacy protection relies on industry-specific legislation, regulation and self-regulation whereas the European Union relies on a comprehensive privacy legislation.

Negotiators need to bridge these two approaches ensuring general adequate principles, which can then be applied to all specific agreements.

However, the transfer of personal data is already taking place without the existence of such an overarching agreement via the agreement provisionally implemented on PNR.

This approach is highly objectionable.  It is necessary to make sure that the broad agreement is compatible with the EU-US general agreement on data protection and not the other way around, as highlighted by the European Data Protection Supervisor. Otherwise the risk of inconsistency between the general principles and their application to specific agreements becomes more than likely.

This risk is already a reality with the PNR Agreement, which currently entails a series of measures at risk of violation of human rights as enshrined in the European legislation and case law:

Computerised Reservation Systems (CRS) as the “brokers” between the airlines the customers and the security authorities

As Mr Edward Hasbrouck explained, PNR data are entered by travel agencies, travel websites and tour operators in a third-party “Computerised Reservation System” (CSR.

The CSR then send the PNR data to the Department of Homeland Security (DHS) and since three out of four servers are based in the USA (including an office of the major EU sever), DHS and others in the USA can have access to EU data, even when they refer to intra-Europe flights.

The current PNR agreement covers transfers of PNR data from the EU to the DHS, it does not cover DHS relations with CSR. Hence, as Mr Hasbrouck correctly pointed out, standard airlines business completely overpass EU-US PNR agreement.

As far as the CRS are concerned the legal situation in the EU has been recently updated (February 4th, 2009) by Regulation (EC) No 80/2009 of the European Parliament and of the Council of 14 January 2009 on a Code of Conduct for computerised reservation systems and repealing Council Regulation (EEC) No 2299/89.

Art. 11 to which recital 21 refers states:

1. Personal data collected in the course of the activities of a CRS for the purpose of making reservations or issuing tickets for transport products shall only be processed in a way compatible with these purposes. With regard to the processing of such data, a system vendor shall be considered as a data controller in accordance with Article 2(d) of Directive 95/46/EC.

2. Personal data shall only be processed in so far as processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract.

3. Where special categories of data referred to under Article 8 of Directive 95/46/EC are involved, such data shall only be processed where the data subject has given his or her explicit consent to the processing of those data on an informed basis.

4. Information under the control of the system vendor concerning identifiable individual bookings shall be stored offline within seventy-two hours of the completion of the last element in the individual booking and destroyed within three years. Access to such data shall be allowed only for billing-dispute reasons.

5. Marketing, booking and sales data made available by a system vendor shall include no identification, either directly or indirectly, of natural persons or, where applicable, of the organisations or companies on whose behalf they are acting.

6. Upon request, a subscriber shall inform the consumer of the name and address of the system vendor, the purposes of the processing, the duration of the retention of personal data and the means available to the data subject of exercising his or her access rights.

7. A data subject shall be entitled to have access free of charge to data relating to him or her regardless of whether the data are stored by the system vendor or by the subscriber.

8. The rights recognised in this Article are complementary to and shall exist in addition to the data subject rights laid down by Directive 95/46/EC, by the national provisions adopted pursuant thereto and by the provisions of international agreements to which the Community is party.

9. The provisions of this Regulation particularise and complement Directive 95/46/EC for the purposes mentioned in Article 1.Save as otherwise provided, the definitions in that Directive shall apply. Where the specific provisions with regard to the processing of personal data in the context of the activities of a CRS laid down in this Article do not apply, this Regulation shall be without prejudice to the provisions of that Directive, the national provisions adopted pursuant thereto and the provisions of international agreements to which the Community is party.

10. Where a system vendor operates databases in different capacities such as, as a CRS, or as a host for airlines, technical and organisational measures shall be taken to prevent the circumvention of data protection rules through the interconnection between the databases, and to ensure that personal data are only accessible for the specific purpose for which they were collected.”

It is worth noting that according to art. 14 of the Regulation the activity of the CRS on the EU territory falls under the European Commission oversight and the Commission has the appropriate powers of control and will accept appeals against any infringement of the code of conduct:

“In order to carry out the duties assigned to it by this Regulation, the

Commission may, by simple request or decision, require undertakings or associations of undertakings to provide all necessary information, including the provision of specific audits notably on issues covered by Articles 4, 7, 10 and 11.”

But the extent to which this oversight power can actually be enforced is questionable. This is because the Directorate General (DG) of the European Commission in charge of the CRS is DG Transport (DG TRAN) whereas the DG responsible for PNR is Justice, Liberty and Security (DG JLS). Hence, if the two DG do not coordinate effectively, it is very difficult for the Commission to carry on the investigative tasks mentioned in article 14 and ensure that no infringement of the code of conduct takes place.

The proportionality principle governing the processing of personal data

According to Directive 95/46, Member States must respect the following principles in the processing of personal data: the purpose limitation, the data quality and proportionality principle, and the transparency principle.

Hence, proportionality is also one the criteria that allows for limitation of privacy. In order to deliver proportionality in practice it is necessary to provide answers to the following questions:

–       What does “narrowly tailored request” mean?

–       What does “case by case request” means?

–       Does case refer to a specific individual or more, or rather any data of all individual falling under a specific criteria?

The proportionality principle may only function against evidence. However, the evidence of the necessity of such measure has not been demonstrated yet. On the contrary, using the words of the Director General of DG JLS, Jonathan Faull, during the LIBE Committee on 24 March 2010, any evidence must remain secret as a matter of national security.

The balance between the limitation of privacy and data protection rights and the implementation of security measures can be reached only if such measures are assessed against the actual and not the perceived or presumed impact that they have on security. Otherwise, the very principle of proportionality fails and with it the respect of individuals’ fundamental rights.

The purpose limitation and the question of re-use

The question of proportionality is directly linked to the purpose of data sharing. The recital of the 2004 Agreement states that its purpose is “to prevent and combat terrorism and transnational crime”. Hence, it is necessary to guarantee that when investigations demonstrate that someone is not a terrorist but has committed other unlawful acts, (such as overstay or copyrights infringement) the data collected will not be used to trigger another procedure.

However, as Dr Patrick Breyer pointed out, the High Level Contact Group (HLGC) report of May 2008 “does not provide for restrictive and specific purpose limitation in that sense and thus fails to satisfy human rights requirements to the disclosure of personal information to foreign agents and states”.

Exchange of data between private and public sectors

Furthermore, by allowing the exchange of data between the private and public sectors the risk of breaching the purpose limitation is a given and extra specific legitimacy -in addition to that already required- should be provided in order to guarantee the full respect of data protection and privacy.

In addition to this, another issues related to the private/public transfer of data entails the question of profiling.

Profiling

Currently, no common definition of profiling exists mainly because there are many profiling activities (In this regard, the Council of Europe is preparing a report which, according to Ms Vassiliadou, will provide the guiding principle for the Commission’s future work).

Data profiling consists in using key words to generate new data so as to progress in data analysis. Hence, by using normal data there is the risk of generating sensitive data.

This “practice” has become increasingly popular among private companies in order to create a more tailored service to their clients. Indeed, this commercial purpose may meet the interest of an individual, especially if the result is a better service provided. However, if these profiles are used for law enforcement purposes by public authorities, the same individual may be against it.

That is why, according to Prof. Paul de Hert the principles of data minimisation and purpose limitations should be included when dealing with data protection and privacy legislation.

However, this might not be enough especially when faced with the risks represented by the automated machine data selection, although the European Commission reassured the audience stating that there should always be a person to take the final decision rather then a machine and this should avoid that profiling will lead to a direct effect to a person

Purpose limitation and profiling are even more delicate aspects once analysed together with the right to redress foreseen in the PNR agreement as well as in the work of the HLCG.

Right to redress and effective remedy

Everyone whose right to data protection and privacy have been violated must have the right to an effective remedy before and independent tribunal as guaranteed in Article 13 ECHR and Art. 47 of the Charter of Fundamental Rights of the European Union.

However, the judicial system of the United States does not provide effective remedy and the Annex to the HLCG report of October 2009 only provides for administrative redress which cannot be defined an effective remedy.

Despite these unresolved issued, the Commission and the Council of the EU are determined to carry on negotiations concerning the SWIFT agreement as well as the PNR agreement.

Undisclosed sources referred that during the EU-US JHA meeting which took place at Ministerial level on 8-9 April 2010 in Madrid, the European Commission is looking for solutions on the aspects where divergences between the EU and the USA exist such as the bulk data transfer, redress principle, purpose limitation and push/pull techniques.

It is regrettable that despite all the aforementioned loopholes, to use an euphemism, the Commission did not supported the approach by which first a general framework agreement on data protection and data sharing with the USA should be concluded and only afterwards – if considered necessary on the basis of evidence- specific agreements such as PNR and SWIFT should be negotiated. Even though the current proposal for a general agreement falls way short of being acceptable.

The European Commission argued that it considers that the SWIFT agreement will be reinforced by the conclusion of the EU US data protection agreement.

During the meeting, the USA not only denied the existence of differences on the understanding of principles related to data protection and privacy on the basis of the OECD guidelines (which the EU thinks is not the right basis), but also considered that the issues raised by the European side in relation to the SWIFT agreement are based on pure misconceptions on how the system works.

If the European Parliament will back up such an agreement it will cover only a minimal part of the exchange of information, since it has no power o regulate the flows of data, for example between the US and third countries. The only aspect that the European Parliament can try to regulate, a fundamental aspect, is the flows of information between the federal and the national authorities in the United States.  On the 6 May will see if at least this aspect will be covered.

LB

Action Plan on the Stockholm Programme released by Statewatch

European Commission: Stockholm Programme: Statewatch Analysis: Action Plan on the Stockholm Programme: A bit more freedom and justice and a lot more security (pdf) by Tony Bunyan: “The “harnessing of the digital tsunami” as advocated by the EU Future Group and the surveillance society, spelt out in Statewatch’s “The Shape of Things to Come” is embedded in the Commission’s Action Plan as it is in the Stockholm Programme….There is no mention of the European Security Research Programme (ESRP). Much of the technological development is being funded under the 1.4 billion euro security research programme. See: Statewatch/TNI report: Neoconopticon: EU security-industrial complex.”

– Statewatch Briefing: European Commission: Action Plan on the Stockholm Programme (pdf) Comments by Professor Steve Peers, University of Essex – Full-text: Communication from the Commission: Delivering an area of freedom, security and justice for Europe’s citizens Action Plan Implementing the Stockholm Programme (COM 171/2010, pdf)

http://www.statewatch.org/


LIBE Committee resume the works on the future SWIFT long term agreement

The LIBE Committee discussed on 7 April 2010 the re-launch of negotiations on a SWIFT long term agreement.

It has to be recalled that following the European Parliament refusal to provide its consent on the US-EU SWIFT Interim Agreement last February a new draft-negotiating mandate has been indeed submitted by the College of Commissioners on 24 March 2010 to the Council, which in turn is expected to approve it on 22/23 April. According to the Commission the new agreement might be concluded at the beginning of June of this year.

Will the new agreement be founded on Judicial cooperation in penal matters or ….?

According to the Commission statement and the legal basis chosen for the new mandate (art. 82 of the TFUE) the future agreement will comply with the EP request  expressed already in September 2009 to build the EU US cooperation in this domain in a framework which could be consistent with the new EU Treaty the art. 8 of the European Charter of Fundamental rights and the request of some Constitutional Courts such as the German Court. To do so the draft mandate has foreseen the creation of  an European “Authority of  judicial nature” which could check the necessity and proportionality of the US request of SWIFT data .

Therefore during the debate Rapporteur Ms Jeanine Hennis Plasschaert (ALDE) enquired the European Commission on whether it would be possible to explore alternative legal frameworks from judicial cooperation in penal matters .

Mr Faull underlined that the Commission could not see any feasible short term alternative system to the mutual legal assistance framework, however this will not prevent the Commission to explore also other possibilities, following the requests from the Spanish Presidency and by taking in account the question posed by the Rapporteur. On the same logic to find alternative solution to judicial cooperation Ms Carmen Romero López (S&D) suggested to work within the framework of an anti-money laundering directive revised to include banking messaging companies.

Therefore according to Jan Philipp Albrecht (Greens/EFA) these “alternative” approaches would go against the European Charter on Fundamental Rights, the European Convention on Human Rights as well as the German Court (see recent judgment on data retention) with the risk, as pointed out “that Germany will feel impelled to reject this mandate on constitutional grounds”. To avoid possible “clashes” with European or national constitutional courts Mr Albrecht has then suggested then to request for the opinion of the EU Court of Justice on the compatibility of the draft agreement with the EU legislation, as foreseen by Article 218 §11 of the Treaty on the Functioning of the European Union.

The new draft negotiating mandate

The new draft negotiating mandate as agreed upon by the College of Commissioners on 24 March 2010 and upon approval of the Council foresees  -among others- the following elements:

  • Safeguards to ensure the respect of the fundamental right to the protection of personal data;
  • Transfer to third countries of only information derived from terrorism investigations (“lead information”);
  • A judicial public authority in the EU with the responsibility to receive requests from the United States Department of the Treasury, verify if  the substantiated  request meets the requirements of the Agreement and if appropriate require the provider to transfer the data on the basis of a “push” system;
  • Retention of personal data extracted from the TFTP database for no longer than necessary for the specific investigation or prosecution and non-extracted data retained for five years;
  • Onward transfer of information obtained through the TFTP under the Agreement shall be limited to law enforcement, public security, or counter terrorism authorities of US government agencies or of EU Member States and third countries or Europol or Eurojust as well as Interpol.
  • The Agreement shall provide for:

1) the right of individuals to information relating to the processing of personal data;

2) the right to access his/her personal data;

3) to the rectification, and

4) as appropriate erasure thereof.

Hence, it appears that the College of Commissioners has tried to address some of the past concerns addressed by the MEPs.

However, while demonstrating the willingness to explore grounds for a new agreement on the SWIFT data-sharing, some of the Members of the LIBE Committee, expressed a variety of concerns, most of which were already raised in the previous report of the European Parliament and that can be summarised as follows:

Proportionality

Members of Parliament still have concerns that the transfer of bulk data will not be addressed properly. According to Ms Sophie In’t Veld (ALDE) filtering should be done in the EU for financial data, PNR and telecommunications. Also Ms  Birgit Sippel (S&D) stressed that SWIFT should be able to individualise data ahead of a transfer.

In this regard it remains to be seen whether SWIFT has the technical ability but not the willingness to bare the costs derived from selecting and transferring  individual data instead of ‘data in bulk’.

According to Mr Faull it will not be possible to reduce the quantity of data transferred however he will work to reduce their size by removing the presumably non-useful data.

Data storage period

MEPs expressed concerned over the five years data storage as foreseen by the new text despite the attempts of Mr Faull to reassure the Committee stating that five years was not “unreasonable” given data’s useful lifespan in counter-terrorism.

Access, rectification, compensation and redress outside the EU

Mr Stavros Lambrinidis (S&D) enquired whether there was no other way for the bulk transfer of data and if it was not possible to impose some prior European check when the US wants to transfer the data to third countries.

Furthermore MEPs expressed the need to ensure the right to appeal to European citizens in front of American authorities in case of personal data abuse/misuse.

In this respect Mr Busutill asked to ensure equal rights between US and EU citizens and Mr Faull replied that the Privacy Act is indeed discriminatory and therefore does not guarantee the same rights to EU and US citizens.  However the Privacy Act does not apply to the TFTP , hence asking to apply the same right of US citizens to the European ones means not having any rights at all.

No evidence on the effectiveness

There still is no evidence that cases of terrorism have been prevented or prosecuted based exclusively on the financial data.

Procedural concerns

The fact that the EU is planning to conclude an executive agreement on exchanges of data before negotiating the general agreements on rules governing the data protection raise additional concerns. Indeed, the acceleration of the envisaged SWIFT II agreement will limit the margin of maneuver for negotiators on the overarching transatlantic agreement on data sharing and data protection. In other words, it will force the latter to simply accept praxis established before the development of the general principles governing data protection.

Also the Commission -using the words of the Director General of DG JLS Mr Jonathan Faull- is of the opinion that “in an ideal world” general norms should be established before specific ones. However, no sufficient reasons have been provided to explain why the European Union is accelerating the negotiations on the SWIFT agreement instead of giving precedence to the establishment of overarching general framework on EU-US data protection and exchange.

In conclusion, the European Union is engaging in a delicate exercise trying to define at the same time internal, external, specific and general data protection norms. This would have been possible -in theory- if the European Union had clear objectives and points of reference. However, following the LIBE Committee debate on 7 April this seems far from being the case.

L.B.

Rights to interpretation and translation in criminal proceedings: LIBE amendments and new Commission proposal

As anticipated in a previous post in this blog the Committee on Civil Liberties, Justice and Home affairs (LIBE) discussed the draft report on the directive of the European Parliament and of the Council on the rights to interpretation and to translation in criminal proceedings presented by rapporteur Sarah Ludford on 17 March 2010, based on the initiative put forward by 13 Member states.

But this was not the only initiative discussed on this matter, also that of the European Commission presented on 9 March 2010 was discussed.

Therefore, after a brief introduction of the aim of the directive, the amendments of the LIBE on the MSs’ initiative will be analysed and then, few observations on the Commission proposal will be made on the basis of the debate that took place in the LIBE committee.

Continue reading “Rights to interpretation and translation in criminal proceedings: LIBE amendments and new Commission proposal”

On the BVG ruling on Data Retention: “So lange” – here it goes again…

As mentioned a couple of weeks ago in the blog (10 January 2010 – Directive on data retention: now the floor goes to the German Constitutional Court) the German Constitutional Court was preparing to make a decision about the German internal application of the controversial Data Retention Directive (2006/24/EC), demanding telecommunication data retention from 6 months till 2 years. Some historical background is provided in the above mentioned blog. On March 2 the decision has arrived (1 BvR 256/08 , 1 BvR 263/08 , 1 BvR 586/08). And what a decision it is. It is of the same work as the famous decision in Marbury v. Madison presided over by John Marshall. The German Federal Constitutional Court (Bundesverfassungsgericht) avoided a direct conflict with the ECJ but showed once again that it will take its prerogatives very seriously regarding the protection of human rights and annulled the German provisions applying the Directive.

Continue reading “On the BVG ruling on Data Retention: “So lange” – here it goes again…”

The first EU steps towards the accession to the European Convention of Human rights

The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) debated on February 23rd the state of the play of the EU accession to the European Convention of Human Rights (ECHR).

The accession is imposed by Article 6 TEU and its main impact will be the creation of an additional layer of protection of fundamental rights in the EU legal order. This entails the possibility to challenge before the European Court of Human Rights (ECtHR) also EU acts if they breach the fundamental rights of an individual (see my previous post here).

Continue reading “The first EU steps towards the accession to the European Convention of Human rights”

Interlaken declaration and Action plan to reform the European Court of Human Rights

The text below have been taken from the official Council of Europe Press release presenting the result of the Interlaken Conference (19.02.2010)
It is worth noting that on Thursday, just before the opening of the Ministerial Conference, the Russian Minister of Justice Alexander Konovalov deposited the ratification instrument of Protocol 14 which will therefore enter into force on 1 June 2010.

Interlaken Declaration
19. February 2010

The High Level Conference meeting at Interlaken on 18 and 19 February 2010 at the initiative of the Swiss Chairmanship of the Committee of Ministers of the Council of Europe (“the Conference”):
1 Expressing the strong commitment of the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the European Court of Human Rights (“the Court”);
2 Recognising the extraordinary contribution of the Court to the protection of human rights in Europe;
3 Recalling the interdependence between the supervisory mechanism of the Convention and the other activities of the Council of Europe in the field of human rights, the rule of law and democracy;
4 Welcoming the entry into force of Protocol No. 14 to the Convention on 1 June 2010;
5 Noting with satisfaction the entry into force of the Treaty of Lisbon, which provides for the accession of the European Union to the Convention;
6 Stressing the subsidiary nature of the supervisory mechanism established by the Convention and notably the fundamental role which national authorities, i.e. governments, courts and parliaments, must play in guaranteeing and protecting human rights at the national level;
7 Noting with deep concern that the number of applications brought before the Court and the deficit between applications introduced and applications disposed of continues to grow;
8 Considering that this situation causes damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represents a threat to the quality and the consistency of the case-law and the authority of the Court;
9 Convinced that over and above the improvements already carried out or envisaged additional measures are indispensable and urgently required in order to:
i. achieve a balance between the number of judgments and decisions delivered by the Court and the number of incoming applications;
ii. enable the Court to reduce the backlog of cases and to adjudicate new cases within a reasonable time, particularly those concerning serious violations of human rights;
iii. ensure the full and rapid execution of judgments of the Court and the effectiveness of its supervision by the Committee of Ministers;
10 Considering that the present Declaration seeks to establish a roadmap for the reform process towards long-term effectiveness of the Convention system;

The Conference

(1) Reaffirms the commitment of the States Parties to the Convention to the right of individual petition;

(2) Reiterates the obligation of the States Parties to ensure that the rights and freedoms set forth in the Convention are fully secured at the national level and calls for a strengthening of the principle of subsidiarity;

(3) Stresses that this principle implies a shared responsibility between the States Parties and the Court;

(4) Stresses the importance of ensuring the clarity and consistency of the Court’s case-law and calls, in particular, for a uniform and rigorous application of the criteria concerning admissibility and the Court’s jurisdiction;

(5) Invites the Court to make maximum use of the procedural tools and the resources at its disposal;

(6) Stresses the need for effective measures to reduce the number of clearly inadmissible applications, the need for effective filtering of these applications and the need to find solutions for dealing with repetitive applications;

(7) Stresses that full, effective and rapid execution of the final judgments of the Court is indispensable;

(8) Reaffirms the need for maintaining the independence of the judges and preserving the impartiality and quality of the Court;

(9) Calls for enhancing the efficiency of the system to supervise the execution of the Court’s judgments;

(10) Stresses the need to simplify the procedure for amending Convention provisions of an organisational nature;

(11) Adopts the following Action Plan as an instrument to provide political guidance for the process towards long-term effectiveness of the Convention system.

ACTION PLAN:

A. Right of individual petition
1. The Conference reaffirms the fundamental importance of the right of individual petition as a cornerstone of the Convention system which guarantees that alleged violations that have not been effectively dealt with by national authorities can be brought before the Court.
2. With regard to the high number of inadmissible applications, the Conference invites the Committee of Ministers to consider measures that would enable the Court to concentrate on its essential role of guarantor of human rights and to adjudicate well-founded cases with the necessary speed, in particular those alleging serious violations of human rights.
3. With regard to access to the Court, the Conference calls upon the Committee of Ministers to consider any additional measure which might contribute to a sound administration of justice and to examine in particular under what conditions new procedural rules or practices could be envisaged, without deterring well-founded applications.

B. Implementation of the Convention at the national level
4. The Conference recalls that it is first and foremost the responsibility of the States Parties to guarantee the application and implementation of the Convention and consequently calls upon the States Parties to commit themselves to:
a) continuing to increase, where appropriate in co-operation with national human rights institutions or other relevant bodies, the awareness of national authorities of the Convention standards and to ensure their application;
b) fully executing the Court’s judgments, ensuring that the necessary measures are taken to prevent further similar violations;
c) taking into account the Court’s developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system;
d) ensuring, if necessary by introducing new legal remedies, whether they be of a specific nature or a general domestic remedy, that any person with an arguable claim that their rights and freedoms as set forth in the Convention have been violated has available to them an effective remedy before a national authority providing adequate redress where appropriate;
e) considering the possibility of seconding national judges and, where appropriate, other high-level independent lawyers, to the Registry of the Court;
f) ensuring review of the implementation of the recommendations adopted by the Committee of Ministers to help States Parties to fulfil their obligations.
5. The Conference stresses the need to enhance and improve the targeting and coordination of other existing mechanisms, activities and programmes of the Council of Europe, including recourse by the Secretary General to Article 52 of the Convention.

C. Filtering
6. The Conference:
a) calls upon States Parties and the Court to ensure that comprehensive and objective information is provided to potential applicants on the Convention and the Court’s case-law, in particular on the application procedures and admissibility criteria. To this end, the role of the Council of Europe information offices could be examined by the Committee of Ministers;
b) stresses the interest for a thorough analysis of the Court’s practice relating to applications declared inadmissible;
c) recommends, with regard to filtering mechanisms,
i. to the Court to put in place, in the short term, a mechanism within the existing bench likely to ensure effective filtering;
ii. to the Committee of Ministers to examine the setting up of a filtering mechanism within the Court going beyond the single judge procedure and the procedure provided for in i).

D. Repetitive applications
7. The Conference:
a) calls upon States Parties to:
i. facilitate, where appropriate, within the guarantees provided for by the Court and, as necessary, with the support of the Court, the adoption of friendly settlements and unilateral declarations;
ii. cooperate with the Committee of Ministers, after a final pilot judgment, in order to adopt and implement general measures capable of remedying effectively the structural problems at the origin of repetitive cases.
b) stresses the need for the Court to develop clear and predictable standards for the “pilot judgment” procedure as regards selection of applications, the procedure to be followed and the treatment of adjourned cases, and to evaluate the effects of applying such and similar procedures;
c) calls upon the Committee of Ministers to:
i. consider whether repetitive cases could be handled by judges responsible for filtering (see above Section C);
ii. bring about a cooperative approach including all relevant parts of the Council of Europe in order to present possible options to a State Party required to remedy a structural problem revealed by a judgment.

E. The Court
8. Stressing the importance of maintaining the independence of the judges and of preserving the impartiality and quality of the Court, the Conference calls upon States Parties and the Council of Europe to:
a) ensure, if necessary by improving the transparency and quality of the selection procedure at both national and European levels, full satisfaction of the Convention’s criteria for office as a judge of the Court, including knowledge of public international law and of the national legal systems as well as proficiency in at least one official language. In addition, the Court’s composition should comprise the necessary practical legal experience;
b) grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe.
9. The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to:
a) avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case-law according to which it is not a fourth instance court;
b) apply uniformly and rigorously the criteria concerning admissibility and jurisdiction and take fully into account its subsidiary role in the interpretation and application of the Convention;
c) give full effect to the new admissibility criterion provided for in Protocol No. 14 and to consider other possibilities of applying the principle de minimis non curat praetor.
10. With a view to increasing its efficiency, the Conference invites the Court to continue improving its internal structure and working methods and making maximum use of the procedural tools and the resources at its disposal. In this context, it encourages the Court in particular to:
a) make use of the possibility to request the Committee of Ministers to reduce to five members the number of judges of the Chambers, as provided by Protocol No. 14;
b) pursue its policy of identifying priorities for dealing with cases and continue to identify in its judgments any structural problem capable of generating a significant number of repetitive applications.

F. Supervision of execution of judgments
11. The Conference stresses the urgent need for the Committee of Ministers to:
a) develop the means which will render its supervision of the execution of the Court’s judgments more effective and transparent. In this regard, it invites the Committee of Ministers to strengthen this supervision by giving increased priority and visibility not only to cases requiring urgent individual measures, but also to cases disclosing major structural problems, attaching particular importance to the need to establish effective domestic remedies;
b) review its working methods and its rules to ensure that they are better adapted to present-day realities and more effective for dealing with the variety of questions that arise.

G. Simplified Procedure for Amending the Convention
12. The Conference calls upon the Committee of Ministers to examine the possibility of introducing by means of an amending Protocol a simplified procedure for any future amendment of certain provisions of the Convention relating to organisational issues. This simplified procedure may be introduced through, for example:
a) a Statute for the Court;
b) a new provision in the Convention similar to that found in Article 41(d) of the Statute of the Council of Europe.

Implementation

In order to implement the Action Plan, the Conference:
(1) calls upon the States Parties, the Committee of Ministers, the Court and the Secretary General to give full effect to the Action Plan;
(2) calls in particular upon the Committee of Ministers and the States Parties to consult with civil society on effective means to implement the Action Plan;
(3) calls upon the States Parties to inform the Committee of Ministers, before the end of 2011, of the measures taken to implement the relevant parts of this Declaration;
(4) invites the Committee of Ministers to follow-up and implement by June 2011, where appropriate in co-operation with the Court and giving the necessary terms of reference to the competent bodies, the measures set out in this Declaration that do not require amendment of the Convention;
(5) invites the Committee of Ministers to issue terms of reference to the competent bodies with a view to preparing, by June 2012, specific proposals for measures requiring amendment of the Convention; these terms of reference should include proposals for a filtering mechanism within the Court and the study of measures making it possible to simplify the amendment of the Convention;
(6) invites the Committee of Ministers to evaluate, during the years 2012 to 2015, to what extent the implementation of Protocol No. 14 and of the Interlaken Action Plan has improved the situation of the Court. On the basis of this evaluation, the Committee of Ministers should decide, before the end of 2015, on whether there is a need for further action. Before the end of 2019, the Committee of Ministers should decide on whether the measures adopted have proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention or whether more profound changes are necessary;
(7) asks the Swiss Chairmanship to transmit the present Declaration and the Proceedings of the Interlaken Conference to the Committee of Ministers;
(8) invites the future Chairmanships of the Committee of Ministers to follow-up on the implementation of the present Declaration.

European Parliament approves Barroso II

The European Parliament has approved by a very large majority, 488 votes in favour, 137 against and 72 abstentions, the Barroso II team on Tuesday 9 February, in Strasbourg.

The new Commission begins to work today, Wednesday the 10 February and its mandate will expire on 31 October 2014.

The major political groups (the EPP, the Socialist Group (S&D) and the Liberal Group (ALDE)) supported the new Commission, the Greens/EFA, the GUE/NGL, the Europe Freedom and Democracy Group (EFD) and non-attached members voted against and the Conservative Group (ECR) abstained.

Barroso asserted in front of the plenary that the main priorities of the new Commission (already presented to the EP in September 2009) will be to tackle the current economic and social situation in the EU, the fight against climate change, developing social cohesion, the creation of the freedom and security area, and strengthening Europe’s place in the world.

As part of the new framework agreement between the EP and the Commission, in which the main elements were approved by MEPs on Tuesday Barroso committed to carry on social impact analysis when there is a new legislative proposal.

According to the resolution in order to place the Parliament on an equal footing with the Council where the ordinary legislative procedure applies the Commission should:

1) Provide to the EP similar access to information than that guaranteed to the Council on legislative and budgetary matters

2) Provide full documentation to the EP on the Council’s meetings with national experts on the preparation and implementation of EU legislation

3) React to the EP’s legislative initiative within three months and present a proposal within one year or in case of refusal by the executive explain to the plenary the reasons that led to such a decision

4) Recognise the EP’s enhanced role in international negotiations (following the entry into force of the Lisbon Treaty) by providing it with “immediate and full” information at “every stage of negotiations” and by giving it observer status at international conferences.

5) Defend the EP’s position during the negotiation of the European External Action Service and involve it in the revision of the better legislation’ interinstitutional agreement.

6) through its President hold regular dialogue with the EP president .

Despite, President Barroso promised to abide by it during the second phase of negotiations on procedural matters that will get under way, the Parliament did not obtain everything it wanted. First of all, the Commission did not accept to allow the European Parliament to hold hearings of future EU ambassadors. Secondly, although Barroso chose to set a deadline for Parliament’s power of initiative, he did not agree to systematically respond to EP requests, to keep from hindering the Commission’s right of initiative. Finally, It also remains to be seen how far the Commission will agree to go on delivering information upstream to Parliament on certain aspects of EU external policy.

Now that the Barroso II has been approved by the European Parliament it is interesting to look back at what the newly elected commissioners responsible for the area of freedom, security and justice presented during the auditions held in January in front of the legislative assembly.

The Commissioners related to the area of freedom, security and justice Ms Viviane Reding will be the Vice-President of the European Commission and the Commissioner for European Justice, Fundamental Rights, Citizenship and Equal Opportunities. During her hearing, held in January, Ms Reding stated that her main objective will be to create a single justice area and enhancing equal opportunities policies, ending any forms of discrimination and, above all strengthening the legal instruments against violence towards women. In specific the three priorities presented to the Parliament in the field of Justice are:

(1) guaranteeing accused persons and suspects clear rights in the EU

(2) ensuring strong fairness rules in trials and prisons, and

(3) enhancing victims’ rights.

Ms Reding also highlighted the importance of “free circulation of administrative documents and European authentic acts” and therefore announced the publication, at the start of the year, of a Green Paper on the free movement of civil and political rights, expected at the beginning of 2010. Always in this domain, the newly elected Commissioner aims to turn Eurojust, into “a European public prosecutor’s office”. Concerning the promotion and respect of fundamental rights the Commissioner explained back in January that there will be a very specific impact evaluation on our fundamental rights. Ms Reding specified that equal opportunities should be fully integrated into employment and this would be a priority of the Belgian presidency of the Union. Finally Ms Reding stated that together with the Commissioner for Internal Affairs, Cecilia Malmström they will bring forward 169 initiatives under the Stockholm Programme.

Concerning her part, Cecilia Malmström during her hearing held on 19 January, presented immigration and the review of security legislation as the main priorities for the Commission. In relation to immigration three directives will be presented in 2010, namely: seasonal work, internal changes within multilateral companies and payment to trainees. Always in January, the newly elected Commissioner indicated that she propose a strengthening of Frontex at the beginning of 2010. The other main objective is the implementation of an internal security strategy in the EU, although little legislation will be put forward in this domain. Ms Malmström announced a review of the data retention measure at the beginning of 2011 which together the setting up of the Second Generation Information System (SIS II) she will tackle as soon as possible. She also affirmed that she supported the creation of the post of European coordinator of fighting human trafficking. The Commissioner stated that she will also present a communication on the fight against corruption and that she is keen in cooperating with Ms Reding in this domain.

LB