8. Judicial cooperation – Page 4 – European Area of Freedom Security & Justice

OPINION 1/15: AG MENGOZZI LOOKING FOR A NEW BALANCE IN DATA PROTECTION

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG (OCTOBER 18, 2016)

By Maxime Lassalle

On 8 September 2016, Advocate General (AG) Mengozzi delivered his much awaited opinion on the agreement between Canada and the European Union on the transfer and processing of Passenger Name Record (PNR). It follows the European Parliament’s resolution seeking an Opinion from the Court of Justice of the European Union (CJEU) on the compatibility of the agreement with the Treaties. Even though the opinion concludes that the agreement has many loopholes, it could disappoint those who were expecting a strong condemnation of PNR schemes as such.

This blogpost intends to present the context of this procedure and the main elements of the AG’s opinion before analysing them. The question of the appropriate legal basis for the agreement, also raised by the Parliament, will not be addressed. However, before turning to the AG’s opinion, we need to briefly sketch the background of the proposed agreement.

The context

Today, in the absence of a PNR agreement with the EU, Canadian authorities apply their own PNR system unilaterally to air carriers established in the European Union (EU) which provide flights to Canada. This means that air carriers have to transfer PNR data (para. 7 of the AG’s opinion) to the extent that it is collected and contained in their automated reservation systems and departure control systems (para. 19). According to the Commission, the adoption of PNR systems is necessary to balance the legitimacy of the requests for PNR data in the fight against terrorism and the need to protect personal data of EU citizens from abusive access. As a result of the Lisbon Treaty, the adoption of PNR agreements now also requires the consent of the European Parliament (EP) (Article 218(6)(a)(v) of the Treaty on the Functioning of the European Union (TFEU)), and it is no secret that the EP is quite reluctant to adopt data retention schemes.

For a long time the EP has been requesting the Commission to provide for evidence that PNR schemes are necessary and in particular that the processing of Advance Passenger Information (API) would not be sufficient to reach the same objective of fighting terrorism and serious crime (for example here andhere). API are one of the 19 categories of PNR data and are limited to the identification of the travelers (name, date of birth, gender, citizenship, and travel document data) while PNR data encompass a much broader range of information (food habits, seating information etc.).

Nevertheless, the Commission ignored this request for evidence and proposed in 2013 a Council decision on the conclusion of a PNR agreement with Canada. This proposal was seriously criticized by the European Data Protection Supervisor (EDPS), also questioning the necessity of PNR schemes. Even though in the past, the Parliament had, albeit reluctantly, given its consent to similar PNR agreements (see the EU-US Agreement and the EU-Australia Agreement), this time it persisted and on 25 November 2014 it decided to refer the proposal on the agreement with Canada to the CJEU for it to assess the compatibility of this proposed agreement with the provisions of the TFEU and the Charter. Clearly, this move of the Parliament was inspired by the activism of the CJEU which had proved to be extremely demanding on the protection of personal data in the framework of the fight against terrorism in its famous Digital Rights Ireland case (DRI, commented on this blog).

The AG’s general considerations on PNR schemes

Let us now have a closer look at the (lengthy) opinion of the AG. Before analyzing the agreement, the AG assesses the intrusiveness of the PNR schemes as such, in relation to the right to data protection and the right to privacy. PNR data consist of 19 categories of personal data including data which ‘might provide information concerning, in particular, the health of one or more passengers, their ethnic origin or their religious beliefs’ (para. 169). The processing of these data therefore constitutes an interference which is of a ‘considerable size’ and ‘a not insignificant gravity’ (para. 176). This system is ‘capable of giving the unfortunate impression that all the passengers concerned are transformed into potential suspects’ (para. 176). However, the interference does not reach a level where the essence of the fundamental rights is harmed, because the PNR data do not permit to draw precise conclusions concerning ‘the essence of the private life of the persons concerned’ (para. 186). To justify the interference caused by the processing of PNR data, PNR schemes, should be properly provided for by law, such as an EU agreement adopted by the Council and approved by the EP (paras. 191-192), and meet an objective of general interest, namely the objective of combating terrorism and serious transnational crime (para. 194).

The AG’s general considerations on the standard to be applied to this unprecedented case

Following a classical reasoning on the assessment of the proportionality of the interference (see for example Schwarz, C‑291/12, para. 53), the AG explains that the proposed agreement ‘must also consist of the measures least harmful […] while making an effective contribution to the public security objective pursued by the agreement envisaged’. Provided that there are alternative measures which would be less intrusive, ‘those alternative measures must also be sufficiently effective’ in order to be considered as serious alternatives (para. 208). However, the definition of what is “sufficiently effective” is not given by the previous case law, neither that of the European Court of Human Rights (ECtHR) nor that of the CJEU. For the AG, the effectiveness of these alternative measures must ‘be comparable […] in order to attain the public security objective pursued by that agreement’ (para. 208). This standard of comparability is set by the AG himself. This was not evident as he could also have considered that less effective measures are still sufficiently effective. Requesting comparable effectiveness is a first. Usually in the reasoning, it is easy to decide whether there alternative measures are sufficiently effective or not (see for example Saint-Paul Luxembourg S.A. v. Luxembourg, para. 44). For measures of secret surveillance, it seems more difficult. The comparability criteria may be a way not to address a difficult question.

The AG acknowledges the ability of the interference to achieve the public security objective based on statistics communicated by the United Kingdom Government and the Commission concerning the Canadian authorities’ best practices (para. 205). Between April 2014 and March 2015, thanks to PNR data, 9,500 targets were identified, among them 1,765 persons were subjected to more thorough checks and 178 were arrested for a serious transnational criminal offence, connected in particular with drug trafficking (para. 262). However, the AG does not take into account that the statistics which were presented to the Court do not indicate the amount of data which was necessary to identify these targets. Moreover, one could note that according to the statistics no terrorist was identified, which is quite surprising for a scheme whose main purpose is precisely to identify people related to terrorism. The AG was obviously satisfied with the fact that PNR schemes are effective against organized crime.

The AG goes on addressing the specificity of PNR schemes, namely that it is their very nature to be based on profiling methods, by a comparison of the PNR data with scenarios or predetermined assessment criteria and that PNR data processing can lead to ‘false positive “targets” being identified’ (para. 255). This specificity of PNR schemes, which have never been assessed by the CJEU, made it necessary for the AG to detail the conditions under which PNR schemes could be considered as proportionate. In order to do so, he suggests to adapt a standard used by the ECtHR in Zakharov v. Russia, namely the standard of ‘reasonable suspicion’. For the AG, these procedures should manage to target ‘individuals who might be under a ‘reasonable suspicion’ of participating in terrorism or serious transnational crime’ (para. 256). The application of this standard is ambitious. Indeed, Judge Pinto de Albuquerque, in his dissenting opinion in Szabò and Vissy v. Hungary, had feared that this standard would be replaced by an ‘individual suspicion’, a lower standard, for surveillance measures whose purpose is to fight terrorism. However, this standard is used to limit the access to personal data by law enforcement authorities (an idea also present in the DRI case, para. 60-62). And yet the purpose of PNR schemes is not to create a pool of information available under strict conditions to law enforcement authorities, but to allow the Canadian competent authority, namely the Canada Border Services Agency, to use data mining procedures in order to discover new persons who were not previously suspected. Hence, the application of the standard of the ‘reasonable suspicion’ seems impossible as such: the limitation of the access to the data is not compatible with the idea, accepted by the AG, that PNR schemes need to process all the data that are available. The AG nevertheless tries to adapt the standard by proposing three principles.

The first principle is that the assessment criteria used to analyse the PNR data should not ‘be based on an individual’s racial or ethnic origin, his political opinions, his religion or philosophical beliefs, his membership of a trade union, his health or his sexual orientation’ (para. 258). The AG obviously fears discriminatory measures based on the processing of PNR data. The second principle, which is in line with the new principles proposed by Directive 2016/680 (i.e., the new Directive on data protection for police and criminal justice sector) is that the result of the automatic processing of data must be examined by non-automatic means (para. 259). The third principle is that the functioning of the automatic means should be checked regularly by an independent public authority (para. 259).

The AG’s proportionality test

After these general considerations, the AG starts his proportionality test. In the opinion nine points are considered separately (para. 210). From this analysis, three main elements deserve to be emphasized.

The first important point is that the AG accepts PNR schemes as a matter of principles. He considers that, excluding sensitive data, all categories of PNR data are considered relevant for the purpose of the envisaged agreement. Sensitive data are defined in Article 2 (e) of the envisaged agreement as ‘information that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, or information about a person’s health or sex life’. The processing of sensitive data is allowed by the envisaged agreement but, for the AG, this is not acceptable as it creates a risk of stigmatization (para. 222). What is more, the fact that these data are excluded from the PNR agreement with Australia shows that the transfer of sensitive data is not necessary to pursue the objective of the scheme (para. 222). This appreciation of the AG is a direct consequence of the first of the three principles he established.

Still on the categories of data, the opinion brushes away the criticism of both the EP and the Article 29 data protection Working Party requesting evidence that the transfer of less data, for example only of API, is not sufficient to meet the objective of the proposed agreement. According to the AG, ‘data of that type does not reveal information about the booking methods, payment methods used and travel habits, the cross-checking of which can be useful for the purposes of combating terrorism and other serious transnational criminal activities. Independently of the methods used to process that data, the API data […] are therefore not sufficient to attain with comparable effectiveness the public security objective pursued by the agreement envisaged’ (para. 214).

Even though all these data are transferred to the Canadian authority irrespective of any indication that the persons concerned may have a connection with terrorism or serious transnational crime (para. 215), the purpose of PNR schemes is to identify persons who were ‘not known to the law enforcement services who may nonetheless present an ‘interest’ or a risk to public security’ (para. 216). For the AG, bulk transfers of data are then necessary. However, he considers the definition of certain categories of data as too vague. For example, heading 17 of the annex, on ‘general remarks’, covers all ‘supplementary information apart from that listed elsewhere in the annex to the agreement envisaged’ (para. 217). Consequently, it is likely that air carriers will transfer all the data that they own, and not only the data that are necessary for Canadian authorities (para. 220).

In addition, the AG’s opinion considers that the scope ratione personae of the agreement envisaged is not too broad and that the massive and indiscriminate transfer of personal data is necessary. If, in theory, it could be possible to imagine a PNR data transfer system which distinguishes passengers according to specific criteria, these systems would never be as effective as PNR data schemes in combating terrorism and serious transnational crime (para. 243). The AG also underlines that consumers of commercial flights voluntarily use a mode of transportation ‘which is itself, repeatedly, unfortunately, a vehicle or a victim of terrorism or serious transnational crime, which requires the adoption of measures ensuring a high level of security for all passengers’ (para. 242).

These first considerations are very important as they show that in principle, for the AG, massive transfer and processing of PNR data is not disproportionate as such. If the undifferentiated and general nature of the retention of the data of any person using electronic communications in the Union was one of the main reasons why Directive 2006/24/EC was considered as going beyond what was strictly necessary (para. 59 of the DRI case), such data retention schemes are possible as long as they respect strict conditions (see the opinion of AG Saugmandsgaard Øe on the joined cases Tele2 Sverige AB and Secretary of State for the Home Department, commented on this blog). The fact that AG Mengozzi accepts the principle of large scale transfer of PNR data is thus not so surprising.

Once this step was made and given the specificity of the case, he needed to create specific conditions under which PNR schemes are proportionate. In addition to the loopholes already explained, these conditions are further elaborated in the two remaining important points of the opinion.

The second important point is that the agreement envisaged should justify the duration of data retention. The AG regrets that the agreement envisaged ‘does not indicate the objective reasons that led the contracting parties to increase the PNR data retention period to a maximum of five years’ (para. 279). He adds that such a long period of retention of the data exceeds what is necessary, particularly because all the data are retained for the same duration (para. 284) and because the masking procedure is incomplete and does not fully ensure the depersonalization of the data (para. 287).

This point is significant as this is the only element in the AG’s opinion which is very critical of PNR schemes in general and which puts the PNR directive at risk. This question was also a key issue in the DRI case. In Directive 2006/24/EC the data retention period of a maximum of two years without distinguishing categories of data on the basis of their usefulness was not based on objective criteria and was therefore excessive (para. 64 of the DRI case). This threatens the validity of the PNR Directive. Indeed, Article 12 (1) of this Directive provides for a duration of five years, without distinguishing categories of data and explaining the reasons for such a long retention. Noticeably, its depersonalisation procedure seems more in line with the assessment of the AG, particularly because more data elements are masked (Article 12 (2) of the Directive, para. 287 of the AG opinion).

The last important point relates to the serious doubt of the AG concerning the level of protection granted by Canada. The opinion is indeed the most critical when it comes to the international nature of the agreement. This is not that surprising given that the Court recently adopted a very demanding position on bulk transfers of data to third countries (in the case Schrems, commented on this blog here). The AG acknowledges that the Court ‘cannot express a view on the legislation or the practice of a third country’ (para. 163). However, the terms of the agreement themselves should have been formulated in such a way that no discretion would be left to Canadian authorities as for the applicable level of protection (para. 164).

For the AG, the access to the data and the use of the transferred data by Canadian authorities is not sufficiently regulated in the envisaged agreement. It leaves to Canada the entire discretion to determine what officials and what competent authorities are allowed to access the data (paras. 250 and 267). Similarly, the envisaged agreement does not stick to a strict principle of purpose limitation as the processing of PNR data is not strictly limited to the fight against terrorism and serious crime (paras 236-237). This is aggravated by the fact that the offences which belong to the categories of terrorism and serious crime are not exhaustively listed (para. 235). Concerning the use of the data, the AG considers that the possibilities of disclosure and subsequent transfer of the PNR data is not sufficiently framed. Indeed, Articles 18 and 19 of the agreement envisaged allow the disclosure and subsequent transfer of the PNR data to other government authorities in Canada and could be used to circumvent the level of protection afforded in the EU (para. 296). As a matter of fact, no independent authority or judge would check the appreciation of the Canadian competent authority that the authority to which the data are transferred can afford an equivalent level of protection (para. 300). The AG concludes that all these points need to be more detailed in the agreement in order to make sure that the level of protection of data ensured in Canada is equivalent to the level of protection ensured in the European Union. Following the previous case law of the Court, particularly the DRI case, the level of protection ensured in the EU is quite demanding and the respect of same level of protection has to be ensured before transferring personal data to third countries (see in particular para. 96 in Schrems).

Finally, the AG points out that the mechanism for detection and review of any violations of the rules of the agreement envisaged affording protection of passengers’ privacy and personal data is not effective because it does not belong to a fully independent and impartial supervisory authority (para. 315). This last point reminds the Commission that the mechanisms of control in the third country must be insured by a sufficiently independent body. This reminder is interesting as the new ‘privacy shield’ replacing the safe harbor is criticized for providing a right to review only through an ombudsman whose independence and powers are questionable.

Some comments

In his reasoning, the AG addresses issues linked to the very nature of PNR schemes and the solutions he proposes do not threaten the principle of PNR schemes. Even though this opinion could seem at first disappointing for those who were expecting the AG to condemn PNR schemes, it appears that this ‘implicit acceptance’ of PNR schemes follows the general principles created by the Court but simply innovates and addresses the new issues that had not been addressed so far with more consideration for the necessity to provide for effective tools to fight terrorism and serious crime.

Even though a lot of questions had to be addressed by the AG, there is one which is of paramount importance. Ever since its DRI case, the Court has developed a strong focus on the guarantees concerning the access to personal data by law enforcement authorities and the AG had to adapt the requirements of the Court to PNR schemes. The attempt of the AG to adapt the standard of the ‘reasonable suspicion’ shows that the applicability of guarantees to law enforcement authorities’ access to data from different data retention schemes is a question which would deserve more attention. Generally speaking, the ECtHR considers that to assess the existence of a reasonable suspicion, it is necessary to check ‘whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security’ (para. 260 of the case Zakharov v. Russia). The problem with PNR schemes is that the suspicion is not prior to the collection and processing of PNR data but discovered as a result of this collection and processing.

This question differs from the ones the Court has previously addressed in its case law, in particular in the DRI case. However, such an issue also exists in other areas. For instance, based on the European system of prevention of money laundering and terrorist financing, financial institutions have to monitor the transactions of all their clients and have the duty to report suspicious transactions. The control of suspicious transactions by these financial institutions also relies on mechanisms of data mining. The processing of personal data is made by private parties, namely financial institutions. Law enforcement authorities can in theory only obtain these data once financial institutions have reported a suspicion (this is, however, something that the Commission would like to change in order to facilitate the access to the data for the Financial Intelligence Units, see its proposal). Consequently, only the financial institutions, which collect anyways these data for the purpose of their economic activities and are subjected to the data protection framework provided for by Directive 95/46/EC, can access these data. This appears to be a safeguard against abusive access from law enforcement authorities. As a matter of fact, when law enforcement authorities access the personal data, after a report from a financial institution, there is already a degree of suspicion. This is probably more in line with the standard of ‘reasonable suspicion’. However, in this field, too, there is a massive collection of personal data which are analysed mainly through data mining procedures in order to discover suspicious transactions.

For PNR data, according to the agreement with Canada as well as for the new PNR Directive, air carriers companies do not have to analyse the data by themselves, but have to transfer all the data respectively to the Canada Border Services Agency or to the new ‘Passenger Information Units’ which will analyse all these data, through data mining procedures. From this data processing suspicions will then emerge which will be further analysed by law enforcement authorities.

Those two examples show that personal data are not only used a posteriori, once criminal investigations are open when a suspicion already exists but are also used for data mining processes with the purpose of discovering new suspicions. It might be that there is a difference based on whether private parties or public authorities are in charge of the data mining procedures. However, in both cases there is no previous ‘reasonable suspicion’; suspicions emerge following a massive monitoring of personal data.

At the end of the day, once the principle of massive surveillance schemes based on data mining mechanisms is considered to be acceptable as such, the standard of the ‘reasonable suspicion’ is overrun and has to be replaced by principles and other guarantees preventing any abuse, provided that this is possible. Are the three principles proposed by the AG sufficient? Hopefully the Court will address this key issue in a clear and detailed way.

Continue reading “OPINION 1/15: AG MENGOZZI LOOKING FOR A NEW BALANCE IN DATA PROTECTION”

Un commissaire britannique à la sécurité de l’Union européenne : le bon endroit, au bon moment, pour la bonne personne ?

PUBLISHED ALSO ON GDR – English version will follow

par Henri Labayle, CDRE, et Emilio De Capitani, Free Group

La semaine dernière, la procédure de nomination de Sir Julian King en tant que nouveau commissaire en charge de la « sécurité de l’Union » a franchi l’obstacle de l’audition au Parlement européen. Par une large majorité de 394 membres pour contre 161 voix, le Parlement, qui est consulté en cas de démission d’un commissaire en vertu de l’article 246 TFUE, a donné son aval. Le 19 septembre 2016, le Conseil, en accord avec le président de la Commission, a donc nommé Sir Julian King, en remplacement de Jonathan Hill qui avait démissionné le 25 juin, ce pour la durée du mandat de la Commission restant à courir, c’est-à-dire jusqu’au 31 octobre 2019.

Auparavant, le 12 septembre, les trois heures d’audition du futur commissaire devant la Commission Libe ont été l’occasion de réfléchir à la nature et à la signification de ce choix pour le bon fonctionnement de l’Espace de liberté, sécurité et justice de l’Union européenne.

1. L’audition devant la Commission Libe

« A vaincre sans péril, on triomphe sans gloire », la citation du Cid vaut particulièrement en matière européenne. Il était facile de deviner que l’avis des coordinateurs politiques de la Commission Libe serait positif. Les échanges par écrit de questions/réponses diverses recoupaient en effet l’attitude largement positive des principaux groupes politiques du Parlement. Le détail de l’audition permet cependant de comprendre le climat dans lequel elle s’est déroulée (pour les documents de référence et la webstream de l’audience, voir ici et ici ).

L’habileté du candidat, d’abord, toute diplomatique, a été saluée par tous. Ambassadeur en poste à Paris, ayant travaillé à la représentation permanente britannique et dirigé un cabinet de commissaire, sa connaissance des dossiers de l’Union est évidente et incontestable. Il a donc eu beau jeu de séduire, en esquivant les questions délicates relatives au Brexit ou à l’accord PNR avec le Canada tout en assumant ses convictions pro-européennes : « j’ai plaidé résolument en faveur de la position du gouvernement britannique durant la campagne référendaire. J’ai toujours été fier d’être britannique et fier d’être européen, et je n’y vois aucune contradiction. Mais le 23 juin, une majorité de mes compatriotes ont décidé qu’ils voulaient quitter l’Union et nous devons respecter ce choix ».

Sur le fond et sans surprise ici non plus, dans sa déclaration d’ouverture à l’audition Sir Julian King a présenté huit points qui sont en fait un mantra récurrent des diverses communications de la Commission relatives à la sécurité intérieure, des positions du Conseil européen et des rapports du coordinateur de la lutte antiterroriste.

Donc, peu de choses nouvelles en définitive si ce n’est une référence intéressante à l’article 4 du traité sur l’Union, qui fut modifié à la dernière minute pour prendre en compte une ligne rouge du gouvernement britannique dans la négociation sur le traité. Pour Julian King, « in today’s world, security of one Member State is the security of all. Article 4 of the Treaty is clear: national security remains the sole responsibility of Member States. But they cannot address alone threats which are transnational ». Implicitement, l’intervention de l’Union en matière sécuritaire est ici légitimée …

Approfondir ce débat aurait sans aucun doute été instructif afin de mieux cerner le contenu réel de la déclaration du futur commissaire, de deviner sa vision de la « sécurité nationale » et dans quelles conditions une menace peut donc être considéré comme « transnationale», légitimant éventuellement une intervention de l’UE. On sait à cet égard que le coordinateur de la lutte antiterroriste a souvent insisté pour distinguer ce qui relève du « national » et de « l’interne », qui ne sont pas synonymes. D’un côté, la « sécurité intérieure » pourrait être un domaine de « compétence partagée » qui, en cas de menace transnationale, peut justifier et même exiger une intervention de l’Union « dans les domaines de criminalité particulièrement grave ayant une dimension transfrontière résultant du caractère ou des incidences de ces infractions ou d’un besoin particulier de les combattre sur une base commune » visés par l’article 83 TFUE. De l’autre côté, la « sécurité nationale » est plutôt jusqu’à présent un concept beaucoup plus limité, axé sur la protection de l’Etat lui-même et justifiant de ses services de renseignement.

La commission LIBE connaît bien ces concepts, le Royaume Uni n’ayant pas hésité à invoquer la « sécurité nationale » (et non sa « sécurité intérieure ») pour justifier dans les années 2000 sa participation à Echelon ou, plus récemment, l’activité de la NSA au Royaume-Uni comme dénoncé par Edward Snowden.

Au delà, le propos du candidat ne s’est guère écarté des orientations dessinées dans la Communication de la Commission relative à la mise en œuvre du programme européen de sécurité (COM (2016) 230) et il demeure donc très convenu, à quelques remarques près. On notera cependant, à propos du PNR, l’opinion ouvertement critique du futur commissaire faisant état de la capacité de seulement 2 ou 3 Etats membres à établir les PIU (Passenger Information Unit) indispensables au fonctionnement du système …

Sur ces bases, prendre du recul par rapport à l’aspect procédural de cette nomination conduit à s’interroger sur la portée d’une telle nomination.

2. La nomination d’un commissaire britannique à la Sécurité intérieure de l’Union

Deux questions surgissent immédiatement à l’esprit : existe-t-il aujourd’hui une nécessité de procéder à une telle nomination et, si oui et de façon un plus malicieuse, le choix d’un ressortissant britannique était-il le plus adapté, dans le contexte actuel ?

1. L’encombrement du domaine institutionnel de la sécurité

Les questions de sécurité intérieure sont déjà largement couverts au plan institutionnel dans l’Union, comme l’audition de Sir Julian King le démontre aisément.

Au sein de la Commission, tout d’abord, puisque, malgré le découpage actuel discutable des porte-feuilles en deux grands domaines, Justice /Affaires intérieures qui amalgame malheureusement les questions migratoires et sécuritaires, le président a jugé utile d’en consacrer un troisième, largement entendu et sans que sa lettre de mission clarifie beaucoup les choses .

Aujourd’hui, on peut ainsi recenser sur ce champ : le premier vice-président Timmermans (en charge de la coordination des politiques sécuritaires européennes au regard des droits fondamentaux), le Haut Représentant et vice présidente de la Commission, Federica Mogherini ( en charge de la sécurité extérieure et de la défense), le commissaire Avramopoulos titulaire du portefeuille « Affaires intérieures » comportant notamment la lutte contre le terrorisme et la coopération policière) et, last but not least, la commissaire Jourová en charge de la coopération judiciaire en matière pénale dont nul ne semble beaucoup se préoccuper aujourd’hui …

Comme si l’embouteillage n’était pas suffisant, il faut ajouter à ce constat la place prépondérante des ConseilsJAI et, dans une moindre mesure Affaires étrangères, ainsi que, surtout, le rôle particulier réservé aucoordinateur de l’UE pour la lutte contre le terrorisme depuis les attentats de Madrid. A n’en pas douter, le mandat du nouveau commissaire recoupe le champ d’activité de ce coordinateur, rattaché à l’autre branche de l’exécutif. Pour faire un compte exact de l’encombrement, on mesurera la schizophrénie du système en rappelant le rôle d’impulsion dévolu au Conseil européen et les prétentions de son Président actuel à exercer cette fonction d’initiative.

Dans ces conditions, il aurait pu être judicieux de s’interroger sur la valeur ajoutée réelle d’une telle superposition de responsabilités. On aurait ainsi pu imaginer de confier aux parlements, européen et nationaux, le soin d’évaluer l’intérêt d’une nouvelle figure institutionnelle, sur la base de l’expérience et d’une analyse des faiblesses de la politique anti-terroriste de l’UE sur le terrain. Si, récemment, EUROPOL s’était avancé à soutenir une telle évaluation, aucune voix en revanche ne s’est élevée dans l’Union ou les Etats membres pour la réclamer. Le bilan de l’Union en matière de lutte anti-terroriste ne justifierait-il pas qu’elle se livre à un exercice que le Congrès des États-Unis a immédiatement lancé, dans des circonstances similaires, après le 11 Septembre ? Est-il vraiment inutile de vouloir tirer les leçons des échecs du passé immédiat ?

L’articulation de l’intervention des différents protagonistes en matière de sécurité intérieure demeure donc une question posée ouvertement. Elle pourrait se focaliser autour de la place que les Etats membres et le Haut représentant accepteront ou pas de consentir à Sir Julian King dans le train de la lutte contre le crime, celle de la locomotive ou du wagon de queue. En particulier sur le front extérieur où l’on sait que l’essentiel des enjeux de la sécurité intérieure de l’Union se dessine et se joue en pratique. La lecture de la lettre de mission adressée par le président de la Commission n’aide guère à y répondre pas davantage que le site, toujours exclusivement anglophone, du portefeuille Home Affairs de la Commission : Sir King y figure désormais en médaillon avec l’actuel titulaire Dimitris Avramopoulos…

Un défi de taille attend pourtant le nouveau commissaire à « la sécurité de l’Union », celui de la gestion des « l’agenciarisation » des politiques sécuritaires, dont les composantes interviennent à des titres divers, d’Europol et Eurojust à Eurosur et Frontex nouvelle version. Ce n’est un secret pour personne que le succès croissant de ces organismes repose en partie sur le fait que, grâce à eux, les États membres ont été en mesure de construire des circuits administratifs parallèles, sans contrainte excessive ni contrôle réel par le Comite pour la Sécurite intérieure (COSI) ou les parlements européens et nationaux, sans parler de leurs propres ministres.

L’absence de leadership fort de la Commission l’explique largement, dans le contexte d’une « lisbonnisation » de ces outils encore particulièrement en retard. On sait aussi que l’argument classique de l ‘ « indépendance » de ces agences masque en réalité l’omniprésence des Etats membres dans leurs conseils d’administration. D’où une forte tendance dans ces agences JAI à développer avec succès la « décision politique » dont la Commission se désintéresse au lieu d’en rester à un rôle, plus simple mais correspondant aux traités, de « mise en œuvre de la politique », comme il se doit dans une Union européenne régie par la primauté du droit et par les principes démocratiques.

Quoi qu’il en soit, au total, il ne sera pas facile pour ce nouvel acteur de trouver son chemin au cœur de ce paysage encombré même si l’histoire récente nous a malheureusement enseigné que, en cas d’attentat terroriste, la scène se vide et que personne ne se précipite plus devant les caméras ou dans les enceintes parlementaires pour expliquer que rien n’avait été prévu et pour quelles raisons nul ne s’en sent responsable…

2. Un commissaire britannique à la sécurité

Quoi que l’on enseigne dans les Facultés de droit sur l’indépendance des commissaires et la rupture de leurs liens avec leurs Etats d’origine comme avec le monde socio-professionnel, les choses sont un peu plus complexes que les affirmations de principe. L’actualité le démontre aujourd’hui amèrement à la Commission. Le contexte du Brexit autorise donc à s’interroger sur l’opportunité de confier ce nouveau porte-feuille à un ressortissant britannique, notamment parce que la durée indispensable à l’installation d’un tel poste lui fera inévitablement défaut, dans la perspective d’un départ britannique futur.

La question ne touche en rien, évidemment, aux compétences personnelles du nouveau titulaire qui sont aussi manifestes que ses qualités humaines, ce dont témoigne la lecture de son audition. Pas davantage que ne se pose celle de la légitimité de la présence d’un commissaire britannique au sein de l’exécutif communautaire, jusqu’au retrait effectif du Royaume Uni. Bien au contraire. Elle repose simplement sur un constat objectif, relevant de la science administrative et trop éclatant pour s’expliquer uniquement par une coïncidence : l’espace de liberté, sécurité et justice a une forte, le mot est faible, tradition de présence et d’influence des hauts fonctionnaires britanniques, aussi inexplicable soit-elle quant on sait l’opposition résolue de leur Etat d’origine à la construction de cet espace. Qui plus est à des moments clés de cette construction.

De Sir Fortescue à la fin des années quatre vingt dix à Jonathan Faull au début des années 2000, de la direction d’Eurojust à celle d’Europol, le moins que l’on puisse en dire est que, pour un Etat en situation d’opt-out répété, son influence a été omniprésente … Sûrement faut-il d’ailleurs voir là une coïncidence regrettable dans le fait que, Europol mis à part, ce ne sont pas les années où le dynamisme et la clarté ont caractérisé l’action de l’Union … En d’autres termes, la réticence devant l’action législative et les schémas d’intégration n’était pas simplement une question de culture, donnant la priorité à l’action opérationnelle pour éviter de s’engager au plan européen. Elle marquait aussi une préférence à peine dissimulée pour l’intergouvernementalisme et, en fin de compte, les Etats étant incapables de décider efficacement, pour l’immobilisme. Il est permis de s’étonner que la Commission ait été contaminée par ce virus.

Trop visible pour être innocente, cette stratégie va buter dans les prochains mois sur un double obstacle. Juridique d’abord, avec l’obligation, enfin, d’assumer la pleine entrée en vigueur du traité et de sa Charte des droits fondamentaux et l’expiration en 2015 d’une période de transition qui a d’ailleurs vu le Royaume Uni exercer un « opt-in/opt-out » préfigurant la situation actuelle… Factuel ensuite, la vague terroriste et la crainte grandissante des opinions publiques interdisant que cette politique de l’encéphalogramme plat à la Commission puisse durer.

Le défi du nouveau commissaire devrait donc être d’élever l’ambition de l’Union dans ce domaine. Deux dossiers permettront de tester sa réelle détermination.

Celui de l’évaluation, d’abord, qui fait cruellement défaut aujourd’hui, évaluation de ce qui n’a pas fonctionné dans la politique de lutte contre le terrorisme, non seulement au niveau européen mais au niveau national. Ce n’est qu’après une analyse sérieuse, totalement absente de la directive antiterroriste actuellement sur la table des institutions, qu’il sera possible de crédibiliser et de renouveler le cadre législatif de la coopération judiciaire en matière pénale et policière. Y compris en s’aventurant sur le terrain de la mise en cause des Etats membres défaillants.

Celui d’une proposition emblématique, ensuite, celle du futur Parquet européen. Le nouveau commissaire sera-t-il plus allant que son Etat d’origine à ce propos, par exemple en s’inscrivant dans la lettre et l’esprit de l’article 86 TFUE, c’est-à-dire en poussant à élargir le champ des compétences de ce Parquet à la criminalité transnationale, à donner sa véritable place à Eurojust et à accepter que le rôle d’Europe en subisse les conséquences ?

Wait and see …

WORTH READING : the final text of the EUROPEAN BORDER AND COAST GUARD REGULATION

The text below is the final version of the EU Regulation on the European Border and Coast Guard as revised by the Jurist Linguists of the EU institutions. Formally adopted this week as a “corrigendum” by the European Parliament and by written procedure by the Council it will be published on the Official Journal in the coming weeks. Presented, negotiated and adopted in extremely short time (^[1]) under the pressure of the European Council the new EU Regulation on the European Border and Coast Guard could be seen at the same time a main evolutionary step and a revolutionary one in the relation between the EU and its Member States in the freedom security and justice area.

Even if the main subject of the text is the border management it covers also directly and indirectly other EU policies such as refugee law, international protection, migration and even internal and external security. Not surprisingly such an ambitious objective was difficult if not impossible to achieve in such a short time and several commentators and representatives of the civil society have already considered (see Peers , Carrera [1], Rijpma [2], and, more recently, De Bruycker [3]) that the text on one side does not deliver what it announces and on the other side is still rooted in an old intergovernamental model. Maybe from a legistic point of view instead of bringing all these objectives in a single legislative text it would had been more elegant to focus its content only on the organisational and operational aspect of the “new” Frontex and deal with the general framework of the integrated EU border management in the Schengen Border Code where general rules on the definition, negotiation adoption and implementation would had been better placed together with the rules on its evaluation and on the adoption of extraordinary measures in case of emergency. However these have probably been considered by the Commission legal niceties to be dealt with in times with less political pressure..

With so many objectives it is not surprising that the final result is far from the expectations and the text is somewhere still elusive and somewhere too detailed. It can then be interesting to compare the negotiation position of the three institutions as it result from a very interesting Multicolumn document leaked by Statewatch during the “confidential” legislative trilogies. It shows that the European Parliament has tried to improve the original Commission proposal and has obtained some concessions from the Council but regrettably, it had lost the main targets such as the definition in codecision of the European Border Strategy (instead of a simple decision of the Agency’s Management Board) and even on the procedure to appoint of the Agency Director where its position will be to express an opinion …which can be disregarded.

Further comments will follow. EDC

[1] See the CEPS study of Sergio Carrera and Leonhard den Hertog “A European Border and Coast Guard: What’s in a name?”

[2] See Jorrit RIJPMA study for the Civil Liberties Committee of the EP “The proposal for a European Border and Coast Guard: evolution or revolution in external border management?”

[3] See Philippe DE BRUYCKER “The European Border and Coast Guard: A New Model Built on an Old Logic”

It is the latest (and quite likely not the last) of a chain of legal texts by which the EU has tried in the recent years to legally frame the issue of human mobility and human security in the EU by taking in account the new legal framework after the entry into force of the Lisbon Treaty and of the EU Charter of fundamental rights.

[1] A rather detailed and updated collection of the legislative preparatory works can be found here : https://free-group.eu/2016/06/10/wiki-lex-the-new-eu-border-guard-proposal/

[2] As as verified by the Jurist Linguist and endorsed by the EP according to art 231 of its Rules of procedure)

————————————————–

REGULATION (EU) 2016/…OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of … on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 77(2)(b) and (d) and Article 79(2)(c) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee1,

Acting in accordance with the ordinary legislative procedure2,

Whereas: Continue reading “WORTH READING : the final text of the EUROPEAN BORDER AND COAST GUARD REGULATION”

Extradition to non-EU countries: the limits imposed by EU citizenship

ORIGINAL PUBLISHED ON EU LAW ANALYSYS

Steve Peers

One of the best-known EU laws created the European Arrest Warrant (EAW), which replaced the prior rules governing extradition between Member States. But on the other hand, in principle EU law has nothing to do with extradition to non-EU countries, except where the EU has agreed a treaty on this issue (as it has with the USA and Norway and Iceland), or as regards asylum-seekers (the EU’s asylum procedures law limits their extradition to their country of origin, because it’s necessary to determine first if the country which seeks to prosecute them is in fact persecuting them).

Yesterday’s CJEU judgment in Petruhhin altered this legal position. EU law does apply to such issues, and the Court clarified some relevant issues while leaving others open. Furthermore, the judgment raises the question of future UK/EU relations on extradition following Brexit.

Background

Extradition between the EU and non-EU countries is governed by a combination of national law and bilateral and multilateral treaties – most notably the Council of Europe Convention on Extradition, which has been ratified by all 47 European countries plus three non-EU countries. There are four further Protocols to this Convention, which have been ratified by fewer States.

A key feature of extradition law is that in principle most States will not extradite their own citizens, although within the EU, the EAW law has overruled any absolute ban on surrendering nationals as between Member States. While the refusal to extradite citizens could run a risk of impunity if those citizens commit criminal offences in another country, most States avoid that risk by extending their criminal jurisdiction to cover acts of their citizens committed outside their territory. In fact many EU laws and international treaties require States to assert such extraterritorial jurisdiction as regards specific transnational crimes.

The EAW law says a little about possible conflict between EAWs and extradition requests from third countries. It states simply that in the case of such a conflict, the national authority should decide which takes priority ‘with due consideration of all the circumstances’, including the relevant treaty and ‘the relative seriousness and place of the offences’, the relevant dates of the requests and whether the extradition request or EAW aims to obtain custody of a fugitive for trial or to serve a sentence already imposed.

This compares with the original proposal for the EAW law, which always gave priority to an EAW if the extradition request came from a country which was not party to the Council of Europe Convention. That clause was dropped following intensive lobbying from the US government, while the law was being negotiated in autumn 2001 (the EAW law was largely motivated by the 9/11 terrorist attacks, although it is not limited to terrorist offences).

Judgment

The Petruhhin case concerned an Estonian citizen sought by the Russian government for prosecution for organised crime offences. He was safe from extradition to Russia as long as he stayed in Estonia, since that country will not extradite its nationals outside the EU. But at one point he was arrested in Latvia, which decided to implement the Russian request. While Latvia also refuses to extradite its own citizens outside the EU, an Estonian citizen prima facie obviously cannot rely on that protection.

So Mr Petruhhin tried to rely on his transnational form of citizenship instead, arguing that since he was an EU citizen in another Member State, he was entitled to equal treatment with Latvians – therefore protecting him from extradition from Latvia to Russia, just like them. (Logically if his argument had worked, he would also be protected from extradition from any other Member State which refuses to extradite its own citizens to Russia).

The CJEU ruled first of all that the despite the absence of EU law on this issue, the dispute fell within the scope of EU free movement law, since Mr Petruhhin was exercising free movement rights. Therefore he had a right to equal treatment with nationals of Latvia in principle. However, a breach of that equality right could be justified on the grounds of avoiding impunity from prosecution for alleged criminal offences: Latvia, like most States, extends its criminal jurisdiction to cover acts of its own citizens abroad, but not the acts of citizens of other countries abroad. This distinction between the position of Latvians and citizens of other Member States can justify different treatment as regards protection from an extradition request.

Having said that, the Court added a crucial rider. To limit the effect of its ruling upon free movement rights (the proportionality principle), it ruled that Latvia has to contact the Estonian authorities first, to see if they wish to prosecute him there on the basis of theirextraterritorial jurisdiction, before handing him over to Russia. That’s an important proviso, as many people believe they are more likely to be treated fairly in the courts of their own State. At any rate, this likely means they will have access to defence and court proceedings in their own language, with any pre-trial detention closer to friends and family.

Finally, the Court stated that any extradition to Russia was subject to the ban on torture or other inhuman or degrading treatment set out in Article 4 of the EU Charter of Fundamental Rights, which transposes the standards set out in Article 3 ECHR and the relevant case-law of the European Court of Human Rights on this issue. That means that if there’s a real risk of such treatment in Russia, the fugitive cannot be extradited there in any case. It should be noted that the Charter equally bans extradition to face the death penalty.

Comments

First of all, the Court was correct to assert the link between EU free movement law and extradition to third States, although its rather abstract reasoning could be improved upon. The best argument supporting this part of the ruling is rather that Mr Petruhhin would have been deterred from leaving Estonia for another Member State if he ran a risk of being extradited to Russia every time he left the country.

Next, would EU law also apply to cases where a Member State considers extraditing itsown citizen to a non-EU country? The question may not arise often, since as noted already, many Member States don’t do this at all. But where they do, logically the case law on citizenship of the European Union (as distinct from free movement applies). As developed since the Zambrano judgment, this prevents citizens of their own Member State from being forced outside the EU in principle, as they are thereby deprived of EU citizenship. But logically the same limits apply by analogy: extradition of citizens can be justified on grounds of preventing immunity, but that is qualified if the extraditing State subjects its own citizens to prosecution for acts committed abroad (most do, as noted already).

Third, could there be other grounds justifying extradition to a non-EU state, besides preventing impunity? This isn’t clear from the judgment. But logically the judgment would apply by analogy to cases where a fugitive has already been sentenced to a term of imprisonment. In such cases, Latvia (say) would contact Estonia to see if the latter country could take over the punishment imposed by Russia, pursuant to the Council of Europe treaty on the transfer of prisoners or another relevant international treaty.

Could there be further grounds preventing extradition to a non-EU state, besides the Charter ban on the death penalty and torture et al, and the priority for EAWs? For instance, what if the person concerned has already been tried in a Member State, or in a third State? The EU has a cross-border ban on double jeopardy, but it only applies to Member States and Schengen associates, not to countries like Russia and the USA. Extradition treaties sometimes address this issue, but don’t always cover every double jeopardy scenario. A pending case before the CJEU should clarify this issue.

Next, logically the ruling would also apply by analogy if a third Member State could apply its jurisdiction: say an Estonian in Latvia was wanted by Russia but could potentially be prosecuted or serve a sentence in France, due to an [alleged] assault against a Russian citizen in France, or a French citizen in Russia. (Some countries assert criminal jurisdiction where one of their citizens was a victim of crime).

This brings us to the issue of conflict between an EAW and an extradition request from a non-EU state. The CJEU didn’t have to comment on this issue in its judgment, because no EAW had been issued yet. But the Court’s judgment necessarily means that there is more likely to be such a conflict in future, if Estonia indeed issues an EAW. And if that happens, the new judgment implies that the open-ended conflict rule in the EAW has to give way to the primary law of the Treaties: so the Estonian EAW has to take precedence over the Russian extradition request. The Court has in effect enshrined priority for EAWs over (almost) all non-EU extradition requests, whereas the original Commission proposal, as noted above, would have given such priority only over extradition requests from non-Council of Europe states. Perhaps the Americans should also have lobbied the Court of Justice.

But then, the USA has its own extradition deal already with the EU, as noted at the outset. (The deal with Norway and Iceland has not been ratified yet). The Court says several times in its judgment that the general rules it elaborates here are without prejudice to extradition treaties concluded between the EU and third countries. Presumably it can interpret the EU/USA treaty, since it can interpret any treaties which the EU signs with non-EU states. In fact, there’s a pending case before the CJEU which asks the Court to interpret this very treaty.

Brexit?

This judgment is probably relevant for Brexit. The UK government has recently hintedthat it will seek some continuation of criminal law cooperation with the EU. There will be transitional issues with EAWs pending on Brexit Day, which the EU/UK withdrawal treaty concluded under Article 50 TEU will hopefully address. In fact there are already possible complications arising from Brexit in this area, as there are several challenges in Irelandto the execution of UK EAWs on the grounds that Brexit is coming. The CJEU may well be called on to address these issues even before Brexit Day.

For the position after Brexit, it’s undoubtedly possible for the EU to conclude an extradition arrangement with the UK, as the Court’s judgment actively encourages the EU to sign such treaties. In fact, the judgment might arguably be the basis of an argument for EU exclusive competence over extradition treaties with non-EU countries, on the basis that any Member State agreements would affect the operation of the EAW law, at least as regards EU citizens. That would mean that the UK could no longer sign extradition deals with individual EU countries, but only with the EU as a whole.

If no deal were reached, the UK and EU could fall back on the Council of Europe extradition Convention. But as I have noted before, this would mean far less extradition (and much slower extradition) as compared to the EAW.

If there were a UK/EU deal, Member States may still want to refuse to extradite their own citizens to the UK, as they have under the treaty with Norway and Iceland. But even if they are willing to extradite them to the UK, on whatever treaty basis, it may be arguable on the basis of the new judgment that they can’t, as long as the fugitive can be tried or serve her sentence in the remaining EU. And although the UK can still assist an EU Member State in prosecuting its own citizens, that will be far more expensive for the UK authorities than trying the person in the UK.

EU Referendum Brief 5: How would Brexit impact the UK’s involvement in EU policing and criminal law?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

What impact does EU membership have on policing and criminal law in the UK – and what would be the impact of Brexit? I’ll give the shorter summary version of the answer to those questions first, followed by a longer more detailed version.

Summary

The UK had a veto over EU laws in this area adopted before the Treaty of Lisbon came into force (1 December 2009). Since then, it has had two opt-outs instead: a) it can opt in (or out) of any new EU law in this field adopted after that Treaty; and b) it could go back and opt out of any old EU laws which were adopted before that Treaty. The UK used the latter power to opt out of the majority of pre-Lisbon laws.

There are five main areas of EU criminal law and policing. One area is the definition of crime, where the UK has opted into a small number of EU laws on issues such as child abuse. A second area is criminal procedure, where the UK has opted into some EU laws on suspects’ rights and crime victims’ rights. These are basically domestic areas of law, and there’s no reason to think the UK would change its rules after Brexit.

However, the other three areas concern international cooperation, where it is impossible for any individual country to act alone. Those areas are: a) recognition of criminal decisions (on arrest warrants or gathering evidence, for instance); b) the exchange of police information; and c) EU agencies like Europol, the EU police intelligence agency.

On criminal law mutual recognition, there are other international rules on some of these issues – such as extradition – but they do not go as far as the EU rules. In some cases, there are no alternative international rules on the same issue. The UK could seek to negotiate a treaty with the EU on these issues, but the past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws.

On EU agencies, non-EU countries can participate as associates, but this means a more limited involvement in each agency than they would have as EU Member States.

The UK’s involvement in police information exchange with the EU would also be subject to renegotiation if the UK left the EU. Again, past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws. And if the UK did not continue to sign up to EU data protection laws fully, there would be difficult legal disputes that could limit the transfer of policing data to the UK’s law enforcement authorities from the EU.

It cannot be seriously argued that the UK has ‘lost control’ over its law enforcement and intelligence agency operations to the EU, given the UK’s opt-out, the focus of EU law on cross-border issues, and the lack of any EU law on intelligence issues.

Overall, a Brexit is very likely to lead to a significant reduction on cooperation in criminal and policing matters between the UK and the EU.

The details

First and foremost, while the EU has adopted a number of laws in this area, the UK only participates in some of those laws, and has an opt-out over future laws in this area too. This blog post will in turn: (a) describe the basics of EU law in this area, including the UK opt-out; (b) summarise the main EU laws in which the UK does (or does not) participate in; and (c) indicate what could happen in the event of ‘Brexit’. For a full academic treatment of these issues, see the fourth edition of my EU Justice and Home Affairs Law book (volume 2).

(a) The basics of EU policing and criminal law

Before the entry into force of the Treaty of Lisbon (on 1 December 2009) police and criminal law matters were subject to a different legal framework from ordinary EU (or European Community) law. The powers of the EU institutions (Commission, European Parliament, EU Court) were more limited, and each Member State, including the UK, had a veto over all laws.

The Treaty of Lisbon repealed these special rules, bringing EU criminal and policing law into the general framework of EU law. From this point on, the usual rules of EU law have applied to this field, with a few exceptions. However, the key point for the UK is that in place of a veto, it got not just one but twoopt outs from EU law in this field.

First, the UK can opt out of (or into) any individual EU laws on criminal law or policing proposed after the entry into force of the Treaty of Lisbon.

Secondly, the UK got the power to opt out of EU criminal laws which it had already agreed to before the entry into force of the Treaty of Lisbon. It could invoke this power as of 1 December 2014. The UK government used this to opt out of all but 35 of the EU criminal laws adopted before the Treaty of Lisbon. (See the discussion of that process here).

(b) Which EU criminal and policing laws does the UK apply?

EU criminal and policing law touches on five main issues:

(a)    substantive criminal law (ie the definition of crimes);
(b)   mutual recognition in criminal matters (ie applying another EU Member States’ criminal law decision, where there is a cross-border issue like gathering evidence in another EU country, or asking another country to hand over a fugitive to face a trial or serve a sentence);
(c)    harmonisation of criminal procedure;
(d)   exchange of police information; and
(e)   EU agencies.

The effect of the two sets of opt-outs is that the UK has been highly selective about the EU law in this area which it wishes to apply. Taking the five areas of law in turn, first of all the UK has opted out of almost all EU substantive criminal law. It is covered by the EU Directives adopted since the Lisbon Treaty defining offences relating to trafficking in persons, sexual abuse of children and attacks on information systems (a form of cyber-crime), but not by EU laws defining offences relating to terrorism, organised crime, fraud, drugs, market abuse by bankers, racism, or currency counterfeiting.

Secondly, the UK is far more engaged in mutual recognition in criminal matters, in particular the flagship law on the European Arrest Warrant (EAW), which is a fast-track extradition system. The UK has also signed up to EU laws on:

(a)    mutual recognition of investigation orders (gathering physical evidence, or interviewing witnesses, in another EU country);
(b)   victim protection orders (where the victim of domestic violence moves to another EU country and wants a restraining order against her abuser to be transferred to that country when she moves there);
(c)    pre-trial supervision (so a criminal suspect can be released on bail to await trial on less serious offences back in Britain, rather than spend a long time in pre-trial detention in a foreign prison);
(d)   confiscation of assets and freezing orders (to ensure that the proceeds of crime held by alleged or convicted criminals in another EU country can be frozen pending trial, and seized if the suspect is convicted);
(e)   the effect of prior sentences or other judgments (so that previous criminal offences committed in another EU country are counted when assessing whether someone is a repeat offender); and
(f)     the transfer of prisoners and criminal sentences (simplifying the movement of foreign prisoners to jails in their EU country of origin, and recognizing fines imposed by a criminal court too – including any penalties imposed against companies for breach of criminal law).

Conversely, the UK has opted out of only one measure in this field, concerning the mutual recognition of probation and parole orders.

Thirdly, as regards the harmonisation of criminal procedure, the UK participates in the EU Directiveon crime victims’ rights. However, the UK has only opted in to two of the six EU laws which set out criminal suspects’ procedural rights. In particular, it has opted into the laws on translation and interpretation, and giving suspectsinformationon their rights; but it has opted out of laws on access to a lawyer,presumption of innocence, child suspects’ rights, and a proposed law on legal aid(not yet agreed).

Fourthly, the UK is particularly keen to participate in the exchange of police information. It participates in every significant measure in the field:

(a)    the Schengen Information System (information on wanted persons and stolen objects, including terrorist suspects under surveillance);
(b)   the Customs Information System (used particularly in drug trafficking cases);
(c)    the ‘Prum’ decisions (which give access to other EU countries’ police databases on fingerprints, licence plates and DNA); and
(d)   the laws on exchange of criminal records.

Finally, as regards EU agencies, the UK participates in Europol(the EU police intelligence agency) and Eurojust (the agency which coordinates work of prosecutors in cross-border cases) at present. However, it has opted out of a new law concerning Europol, and a proposed new EU law concerning Eurojust, which set out (or would set out) revised rules for those agencies following the entry into force of the Treaty of Lisbon, although it might decide to opt in to those Regulations after they are adopted. The UK used to host the European Police College (a training agency), but refusedto continue hosting it and opted out of a new version of the relevant law.

There has been some concern particularly about the prospect of the UK participating in a law to create a European Public Prosecutor. While the EU Commission proposeda law to create a European Public Prosecutor in 2013, the UK has opted out of that proposal. Indeed, the UK would have to hold another referendum before it opted in to that law, according to the European Union Act 2011.

(c) What would the impact of ‘Brexit’ be?

It’s sometimes argued that EU laws on policing and criminal law are irrelevant to the UK’s membership of the EU, because the UK can simply do everything it wishes to do in this field in its domestic law. That’s a valid argument for two of the five areas of law described above: substantive criminal law and harmonisation of procedure. But it doesn’t work for the three other areas – mutual recognition, exchange of information and participation in EU agencies – which necessarily require some cooperation with other states. Put simply, a British Act of Parliament cannot regulate how France or Germany issue extradition requests.

What would happen if the UK left the EU? In each case, as with other areas of EU law and policy, it would depend on what the UK and EU negotiated afterward. But it is possible to give some general indication of the consequences.

In the area of mutual recognition, the UK can fall back on Council of Europe treaties, which address some of the same issues (note that the Council of Europe is a separate body from the EU, which includes non-EU European countries like Turkey and Russia; some of its treaties can be signed also by non-European states like the USA).

However, the relevant treaties do not go into as much detail as the EU laws, and are often less effective. As an indication of this, see the UK governmentinformationabout the application of EU law in this area. Extradition from the UK has gone from 60 people a year (to all countries) before 2004 to 7000 since 2004 on the basis of the European Arrest Warrant. Over 95% of those sent to other Member States are not British.

Moreover, in some cases the UK and/or some other Member States have not ratified the relevant treaties. For instance, fewer than half of all Member States have ratified the Council of Europe Convention on validity of criminal judgments; the UK has not ratified it either. But the EU law on mutual recognition of criminal penalties sets out rules on one of the key issues in that Council of Europe treaty: the recognition of criminal financial penalties imposed by another Member State’s court. Some issues have not been the subject of Council of Europe treaties at all, such as the pre-trial supervision rules set out in EU law. In these cases, the EU law is the only means of ensuring the cooperation in question.

Another alternative is to negotiate treaties with the EU on these issues. The EU has been willing in practice to negotiate access to some aspects of its criminal law measures: a form of the EAW for Norway and Iceland, an extradition treaty with theUSA, and mutual assistance (exchange of evidence) with Norway and Iceland, theUSAand Japan. But the extradition treaty with Norway and Iceland took years to negotiate, is still not in force at time of writing, and does not oblige States to extradite their own citizens – meaning that the UK would not be able to ask Germany to extradite Germans, for example. That restriction cannot easily be negotiated away in the event of Brexit, because some EU countries have constitutional problems which prevent them extraditing their own citizens outside the EU. (On these sorts of issues, see E Guild, ed, Constitutional challenges to the European Arrest Warrant).

Overall, there are no such treaties agreed with any non-EU countries on the large majority of EU criminal law mutual recognition measures. Of the treaties which are agreed, not a single one goes as far as the relevant EU legislation in force.

A particular concern of critics of the EU rules on extradition is the ‘sufficient evidence’ (‘prima facie’) test which was traditionally applied by the UK before accepting an extradition request. While it is sometimes argued that the EAW abolished the ‘prima facie’ test as regards EU countries, this is not correct. In fact, the UK waived the right to apply this test to European countries when it signed up to the Council of Europe extradition treaty back in 1990, over a decade before it signed up to the EU’s EAW: see the Extradition Act 1989, section 9(4), which was implemented by the European Convention on Extradition Order 1990 (SI 1990 No. 1507). In other words, the test was not abolished because of EU law, but was already abolished well before the EU had any involvement in extradition law.

Why did the UK abolish the prima facie test? As noted in the 2011 Baker review of UK extradition law, the decision was made because of the difficulties it posed for extradition in practice: a White Paper of 1986 stated that it ‘did not offer a necessary safeguard for the person sought by the requesting State but was a formidable impediment to entirely proper and legitimate extradition requests’. Ultimately the Baker review recommended that there was ‘no good reason to re-introduce the prima facie case requirement’ where it had been abolished, and that ‘No evidence was presented to us to suggest that European arrest warrants are being issued in cases where there is insufficient evidence’.

The prima facie test is sometimes described as an aspect of the ‘presumption of innocence’, although in fact a fugitive who is extradited pursuant to this test still either has to be convicted pursuant to a trial in the requesting State, or has already been convicted but fled the country. In other words, the presumption of innocencestill applieswhen the substantive criminal trial takes place (or took place).

As regards the EU agencies, the UK can enter into agreements to cooperate with Europol and Eurojust, like other non-EU countries. However, as the Director of Europol points out, such agreements don’t allow the UK to have direct access to databases, to lead investigation teams, or to take part in the management of those agencies: both Europol and Eurojust have had British Directors.

Finally, as regards policing, the EU has given some non-EU states access to theSchengen Information System, and to the ‘Prum’ rules on access to each Member State’s national policing databases. But this was linked to those countries fully joining the Schengen system. The UK would obviously not do that after a Brexit.

The EU has also signed treaties on the exchange of passenger name records with non-EU countries (the USA, Canada and Australia), as well as a treaty on the exchange of financial information (concerning alleged terrorists) with the USA, so might be willing to sign similar treaties with the UK. It has also recently agreed an ‘umbrella’ treaty on general exchange of police information with the USA, although this is not yet in force.

However, the EU has not extended access to its system on exchange of criminal records to any non-EU countries. While there is a Council of Europe treaty on mutual assistance in criminal matters (which the UK and all other Member States are party to) that provides for some exchange of information of such records, it results in far less information exchange. The exchange of criminal records is particularly important for the UK: the government has reportedthat the UK is one of the biggest users of the EU system, and that criminal records checks of foreign nationals in the criminal justice system have increased 1,650% since 2010.

However, there is a particular issue that has complicated the exchange of personal data between the EU and with non-EU countries, particularly as regards policing data. Are their data protection standards sufficient as compared to the standards maintained by the EU? If not, then the European Parliament may be reluctant to approve the deal, or it might be challenged in the EU Court. This isn’t a hypothetical possibility – it has happened several times already.

I have discussed this issue in more detail in a recent blog post for The Conversation, but I will summarise the main points there again.

As regards deals between non-EU countries and the EU itself, the EU Court of Justice has struck down a Commission decision on the transfer of personal data to the USA, because there was insufficient examination of the data protection standards applied by US intelligence agencies as regards access to personal data on social media. A replacement deal is planned, but will also be challenged in court. A further case is pending, where the EU Court has been asked to rule on the legality of the most recent EU/Canada treaty on the exchange of passenger records data, to ascertain if it meets EU standards for data protection.

If the UK left the EU, any UK/EU agreement on the transfer of personal data would have to meet the same requirements. Those requirements cannot simply be negotiated away, since they stem from the EU Charter of Rights – part of the primary law of the EU. The Charter can be amended, but to have legal effect the EU Treaties would also have to be amended to refer to that revised text. It is hard to believe this could happen at the behest of a country which has just left the EU.

Would UK legislation meet the test of being sufficiently similar to EU standards? The Court of Justice has been asked in the pending Davis and Watson case whether the rules on police access to personal data comply with the EU law that binds the UK as a Member State. Another Bill on this issue is pending before the UK Parliament, and would likely become an Act of Parliament before Brexit. Since many privacy campaigners are critical the draft Bill, there would almost certainly be similar legal challenges to transfers of personal data to and from the UK after Brexit, unless the UK agrees to continue fully applying EU data protection law.

(d) Arguments by the referendum campaigns

The official leaflet summarising the position of the two sides in the referendum campaign contains a number of relevant claims from each side. For the Remain side, the pamphlet says that the EAW ‘allows us to deport criminals from the UK and catch those fleeing justice across Europe’, and that EU membership helps to tackle ‘global threats like terrorism’. For the Leave side, the pamphlet says that the EU ‘will continue to control…vital security policies such as counter-terrorism’ and the EU Court ‘will keep taking powers over how our intelligence services fight terrorism’.

Are these claims valid? As for the first Remain claim, as noted above the statistics show that the number of persons extradited to and from the UK have indeed increased since the EAW has been applied – although some extradition would still take place even if the UK did not apply the EAW.

In light of the official UK government information referred to above, other operational cooperation via Europol and other forms of EU police and criminal law cooperation presumably has some impact on combating threats like terrorism and other serious crimes in practice. However, it is not possible to estimate their impact compared to purely national actions and other forms of international cooperation.

As for the arguments by the Leave side, it is clear from the description of the laws which the UK applies that the EU does not ‘control…vital security policies’. The functioning of the UK law enforcement authorities is up to the UK, and there is no EU regulation of intelligence agencies. EU law impacts only cross-border issues.

As we have seen, the only EU case law to date impacting intelligence agencies concerns non-EUintelligence agencies. The ruling restricts transfers of data gathered by social networks to those non-EU countries in that context, unless those countries apply EU data protection law. If the UK left the EU, it would therefore be subject to the same restrictions on obtaining personal data in criminal cases from the EU. Leaving the EU is therefore more likely to impede UK intelligence agencies’ work, than it is to facilitate it.

Conclusion

The UK’s participation in EU criminal and policing law has led to an increase in cooperation in areas such as extradition and the exchange of police information. In these cases, there are question marks about what would happen after Brexit – mainly political but to some extent legal too. In the event of Brexit, there is a very high likelihood that cooperation between the UK and the remaining EU would be reduced (although not to zero). And in light of the UK’s opt-outs and the limited effect of EU law on purely domestic matters, it cannot seriously be argued that UK law enforcement and intelligence agencies are ‘controlled by’ the EU.

Meijers comments on the proposed reforms of Dublin, Eurodac and of the new Asylum Agency

ORIGINAL PUBLISHED ON THE MEIJERS COMMITTEE SITE (*)

Comments on the Dublin recast proposal (COM (2016) 197)

General observations

The Meijers Committee would like to take this opportunity to comment on the proposed reform of the Dublin Regulation, as set forth in the 6 April 2016 EC communication to the EP and Council (COM (2016) 197) and the 4 May 2016 proposal for a regulation of the EP and Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (COM (2016) 270). The later proposal will be further referred to here as Dublin III recast.

On page 4 of the 6 April 2016 communication, the Commission succinctly lists the shortcomings of the Dublin regulation: “difficulties in obtaining and agreeing on evidence proving a Member State’s responsibility for examining the asylum application, leading therefore to an increase in the number of rejections of requests to accept the transfer of applicants. Even where Member States accept transfer requests, only about a quarter of such cases result in effective transfers, and, after completion of a transfer, there are frequent cases of secondary movements back to the transferring Member State. The effectiveness of the system is further undermined by the current rules which provide for a shift of responsibility between Member States after a given time. […] A further impediment to the effective functioning of the Dublin system results from the difficulty in transferring applicants to Member States with systemic flaws in critical aspects of their asylum procedure or reception conditions. The effective suspension of Dublin transfers to Greece since 2011 has proved a particularly critical weakness in the system. […] The Common European Asylum System is also characterized by differing treatments of asylum seekers, including in terms of the length of asylum procedures or reception conditions across Member States, a situation which in turn encourages secondary movements.”

The Meijers Committee wishes to add that Dublin’s ineffectiveness not only results from the difficulty of effectuating transfers but also from a general failure to initiate Dublin procedures, because asylum seekers have not been registered upon entering the EU. It is well known, not only that asylum seekers may seek to avoid registration, but that some Member States also disregard their obligation to register asylum seekers – some even on a large scale. It has been estimated, for example, that only half the persons entering Italy and applying for asylum somewhere in the EU were registered in that country¹In 2014, the proportion of physical Dublin transfers to the number of applicants for international protection in the EU was about 4 %, which suggests that Dublin is applied in far fewer cases than all those to which it is in fact applicable.²

To remedy these shortcomings, the Commission proposes two options:

Supplementing the present system with a corrective fairness mechanism, or
A new system for allocating asylum applications in the EU based on a distribution key.

Because the second option would be difficult to envisage in the short or medium term, the Commission has chosen to pursue the first one.

The Meijers Committee would first of all like to point out that none of the shortcomings listed by the Commission will be remedied by the first option, since it is essentially a continuation of the present Dublin system, which is demonstrably a failure. Why continue with a broken system instead of fixing the shortcomings, even though this may not produce significant results in the short term? Additionally, the Meijers Committee points to the fact that the Dublin regulation was only very recently recast (19 July 2013), so this recast has been undertaken within 3 years of the entry into force of the last recast regulation, while that recast came 10 years after the entry into force of the Dublin II regulation.

The Meijers Committee points out that at present there are two infringement procedures ongoing with regard to the Dublin regulation (in respect of Italy and Hungary), as well as four infringement procedures regarding the closely related Eurodac regulation (in respect of Croatia, Greece, Italy and Cyprus). Additionally, the Commission has recently sent a second supplementary letter to Greece expressing concerns over the persistence of serious deficiencies in the Greek asylum system, as well as a 10 February 2016 recommendation.

The belief that the Dublin system allocates responsibility unsustainably is widely held and is mentioned on page 3 of the explanatory memorandum to the Dublin III recast proposal. It is no coincidence that the infringement procedures mentioned above concern Member States on the EU’s external borders. These Member States have for a long time complained that they cannot process the large numbers of asylum seekers entering the EU through their territories. While the suggested corrective fairness mechanism can go some way to remedy this situation, it will not change the fact that it is these Member States who will bear the brunt of new arrivals. The corrective fairness mechanism will not be triggered until a Member State has received 150% of the maximum allocated number of applications deemed fair on the basis of that State’s GDP and population size. This only partly corrects disproportionate burden sharing, without addressing the fundamental shortcomings of the Dublin system, namely that this system wrongly presupposes that the asylum procedures are adequate and up to standard in all Member States. On the contrary, Member States still continue to display systemic deficiencies, which make Dublin transfers impossible. As has been accepted by the ECtHR in several recent judgments, there are significant national differences in the quality of reception and asylum systems, which continue to exist and which encourage secondary movements.³ Additionally, the Commission must take stock of the fact that its similar attempt of September 2015 at such a mechanism has so far not been successful: of the 160,000 asylum-seekers who should have been relocated, only 1,500 (909 from Greece and 591 from Italy) have been relocated.

The proposals under Dublin III recast do very little to address this unsustainable burden sharing, focusing instead on the risk of abuse of the rules laid down in the Dublin III regulation by individual asylum seekers, including their absconding.

Detailed observations

Continue reading “Meijers comments on the proposed reforms of Dublin, Eurodac and of the new Asylum Agency”

Casse-tête jurisprudentiel autour de l’exequatur (A propos des arrêts Meroni et Avotins)

ORIGINAL PUBLISHED ON CDRE SITE

by Maxime Barba, EDIEC

Les arrêts Avotins et Meroni, rendus coup sur coup selon un timing remarquable, l’un par la Grande Chambre de la Cour EDH, l’autre par la CJUE en formation classique, mettent aux prises la discipline européenne de l’exequatur et les exigences du procès équitable. Si le relief individuel de ces décisions est déjà remarquable, leur comparaison n’en est que plus exceptionnelle. Certains enseignements fondamentaux peuvent être retirés d’un bref exercice de confrontation.

1. Dans sa configuration, l’affaire Avotins (CEDH, 23 mai 2016, req. n°17502/07) est relativement connue et l’on renverra sur ce point à d’autres contributions (sur ce blog : -S. BERGE, Avotins ou le calme qui couve la tempête; J.-S. BERGE, Une, deux et… trois lectures : de l’avis 2/2013 (CJUE) à l’affaire Avotins (CEDH); notre contribution ; dans la littérature spécialisée, v. not. F. MARCHADIER, « Présomption d’équivalence dans la protection des droits fondamentaux », RCDIP 2014.679 ; P. DEUMIER, « Le règlement Bruxelles I, l’exequatur et la CEDH », RDC 2014.428).

Quant aux aspects factuels de l’affaire Meroni (CJUE, 25 mai 2016, C-559/14), il faut brièvement en faire état. Synthétiquement, M. Meroni s’opposait, au for polonais, à l’exequatur d’une ordonnance de gel, décidée au for anglais, destinée à un autre que lui et qui produisait malgré tout des effets indésirables à son endroit (pts. 20 et ss). Pour ce faire, il se fondait techniquement sur l’article 34§1 du règlement n°44/2001, dont nul n’ignore qu’il met en place l’exception d’ordre public international qu’il est possible d’opposer à un jugement étranger dont l’exequatur est requis. Plus précisément, il était suggéré d’avoir recours à l’ordre public international pris dans sa composante procédurale et, au regard des fondements, de lire l’article 34§1 du règlement « Bruxelles I » en conjugaison avec l’article 47 de la Charte des droits fondamentaux de l’Union européenne (CDFUE).

2. Juridiquement, la question préjudicielle posée était de savoir si « la reconnaissance et l’exécution d’une ordonnance rendue par une juridiction d’un Etat membre, qui a été prononcée sans qu’un tiers dont les droits sont susceptibles d’être affectés par cette ordonnance ait été entendu, doivent être considérées comme manifestement contraires à l’ordre public de l’Etat membre requis et au droit à un procès équitable» au sens de l’article 34§1 du règlement « Bruxelles I » lu à la lumière de l’article 47 de la CDFUE. La réponse de la Cour de Justice passe par plusieurs temps, dont certains sont classiques en matière d’ordre public international, et d’autres moins.

3. Quelques rappels sont judicieusement articulés quant à cette notion d’ordre public international à la spécificité indéniable. Tout d’abord, celle-ci est d’interprétation stricte (pt. 38). Ensuite, si la détermination de son contenu relève de la liberté des Etats membres, elle ne relève pour autant pas de leur discrétion puisqu’un contrôle de la Cour de Justice est toujours envisageable au regard de la mise en œuvre de l’exception (pts. 39 et 40). Enfin, il n’est pas question de procéder à une révision au fond sous le couvert de l’exception d’ordre public international (pt. 41). En bref, « un recours à l’exception d’ordre public […] n’est concevable que dans l’hypothèse où la reconnaissance ou l’exécution de la décision rendue dans un autre Etat membre heurterait de manière inacceptable l’ordre juridique de l’Etat membre requis, en tant qu’elle porterait atteinte à un principe fondamental» (pt. 42), atteinte qui « devrait constituer une violation manifeste d’une règle de droit considérée comme essentielle dans l’ordre juridique de l’Etat membre requis ou d’un droit connu comme fondamental dans cet ordre juridique» (idem). Ce sont là de solennels rappels mais qui demeurent classiques. L’intérêt se situe ailleurs.

4. Le passage suivant de l’arrêt Meroni est décisif : « le règlement n°44/2001 repose sur l’idée fondamentale selon laquelle les justiciables sont tenus, en principe, d’utiliser toutes les voies de recours ouvertes par le droit de l’Etat membre d’origine. Sauf circonstances particulières rendant trop difficile ou impossible l’exercice des voies de recours dans l’Etat membre d’origine, les justiciables doivent faire usage dans cet Etat membre de toutes les voies de recours disponibles afin d’empêcher en amont une violation de l’ordre public» (pt. 48, cnqs). Le cœur de l’arrêt est là. La Cour de Justice met explicitement en place un principe général de mise en œuvre préalable des voies de recours au pays d’origine avant tous recours à la clause d’ordre public international au pays requis. Ce positionnement, déjà présent dans la célèbre jurisprudence Diageo Brands (CJUE, 16 juill. 2015, C-681/13; sur ce blog : NOURISSAT, De l’ « encadrement » à la « mise sous tutelle » de l’exception d’ordre public international en matière de reconnaissance des décisions civiles ou commerciales… Nouvelle étape sous la plume de la CJUE), appelle une double analyse : l’une externe, en contemplation du très récent arrêt Avotins de la CEDH ; l’autre interne, au regard de la jurisprudence de la CJUE en matière d’ordre public international (v. billet C. NOURISSAT à paraître). On se concentrera ici sur la première de ces analyses. Si la ressemblance entre les arrêts Avotins et Meroni est palpable et incite à évoquer une certaine convergence des solutions (I), un examen plus attentif permet de parler d’une divergence fondamentale, non seulement en termes de raisonnement, mais surtout en termes de posture des juges européens sur la question du recours préalable au for d’origine en matière d’exequatur (II).

I) La convergence des solutions

5. Les affaires Avotins et Meroni présentent une parenté presque intuitive, jusqu’à l’Etat concerné, la Lettonie. La chose n’avait d’ailleurs nullement échappé à l’avocat général Kokott, chargée de conclure dans l’affaire Meroni, qui s’était abondamment référée à l’arrêt de 2014 intervenu dans l’affaire Avotins (Conclusions présentées le 25 février 2016, pts. 39 et 40). Les ressemblances entre ces deux affaires sont sensibles. Dans leur configuration d’abord : dans un cas comme dans l’autre, la personne procéduralement lésée, défendeur dans Avotins, tierce dans Meroni, n’avait pu faire valoir ses droits lors de l’instance directe au for d’origine. Et, dans un cas comme dans l’autre, la personne procéduralement lésée n’avait pas mis en œuvre les recours disponibles au for d’origine. Et, dans les deux hypothèses, la solution finalement adoptée est incontestablement à la défaveur de la partie absente, dont on attendait donc qu’elle mette en œuvre préalablement les recours au for d’origine. Ainsi, il revenait bien au requérant, dans l’affaire Avotins, de s’employer au for chypriote à recourir contre la décision de première instance l’ayant condamné. À défaut de quoi, son inertie procédurale pouvait lui être reprochée au for letton, au regard du droit européen incarné par le règlement « Bruxelles I » pris en son article 34§2, comme – mais dans une mesure moindre à notre sens – au regard du droit de la Convention, lequel interdit au requérant de se plaindre devant la Cour d’une situation qu’il aurait lui-même contribué à créer « par son inaction et son manque de diligence» (CEDH, 23 mai 2016,Avotins, §124 ; v. égal. CEDH, 6 mai 2004, Hussin c/ Belgique, req. n°70807/01 et CEDH, 29 mai 2008, McDonald c/ France, req. n°18648/04). De même, il revenait au tiers lésé dans l’affaire Meroni de procéder d’abord au for anglais d’origine avant d’exciper une éventuelle violation de l’ordre public international de procédure au for polonais requis.

6. Dans les deux cas, le message est clair : ce n’est qu’après épuisement du contentieux au for d’origine, en amont, qu’il est possible de se plaindre d’une éventuelle iniquité procédurale au for requis, en aval. La différence de fondement, articles 34§1 ou 34§2 du règlement n°44/2001, n’apparaît pas décisive : les conclusions semblent convergentes, si ce n’est similaires. Le principe du recours au pays d’origine se présente comme invariable. Cette belle cohérence vole pourtant en éclats à l’analyse car si les deux arrêts se rejoignent en termes de résultat concret, ils diffèrent radicalement dans leur cheminement théorique, voire jusque dans les positionnements sous-jacents respectivement adoptés par les juges européens. Derrière cette convergence des solutions se loge en réalité une véritable divergence de posture.

II) La divergence de posture

7. La divergence de points de vue peut être mise en exergue au travers d’une démarche progressive, en repartant des fondements. Dans l’affaire Avotins, la clause d’ordre public international n’avait pas été mobilisée devant le juge letton (CEDH, 23 mai 2016, §108). C’est d’ailleurs regrettable car la solution aurait pu être substantiellement différente sur le fondement de l’article 34§1 du règlement n°44/2001. Au regard de la technique internationaliste, tout d’abord, il demeure en effet que l’article 34§1 n’exige textuellement pas la mise en œuvre préalable des recours au pays d’origine. Et, à une époque où la jurisprudence Diageo Brands n’avait pas encore émergé, la chose a son importance. Ensuite, au regard du droit de la Convention, la notion d’ordre public international induit des différences notables. Si la présomption Bosphorus a pu être mobilisée par la Cour EDH dans cette affaire, c’est en raison de l’absence de marge de manœuvre du juge letton dans la mise en œuvre du droit de l’Union (la chose se discute d’ailleurs, CEDH, 23 mai 2016, §§105 et ss). Or, la notion d’ordre public international ne se prête pas aux mêmes conclusions, les Etats membres conservant une certaine liberté, même encadrée, en la matière (supra, n°3). Ainsi, le point d’entrée « ordre public international », bien présent dans l’arrêt Meroni, ne se retrouve techniquement pas dans l’arrêt Avotins. Et de cette différence de fondements s’induisent d’importantes différences dans le raisonnement, lesquelles laissent transparaître une véritable divergence de points de vue.

8. Le principe de recours préalable au pays d’origine est le fruit d’une construction dans l’affaire Meroni alors qu’il est le fruit d’une déduction dans l’affaire Avotins. Ce constat est essentiel. La conclusion de l’affaire Meronin’est pas mécaniquement extraite de l’article 34§2 et de son libellé explicite, mais artificiellement construite sur le fondement de l’article 34§1 – d’une façon relativement poussive qui plus est. La différence dans la lettre des deux dispositions devait ainsi être méthodiquement dépassée, le juge de Luxembourg se retrouvant forcé d’élever le principe de recours préalable au for d’origine au rang d’« idée fondamentale» (CJUE, Meroni, préc., pt. 48), expression qui mériterait d’ailleurs l’analyse. Synthétiquement, la Cour de Justice fait du recours préalable au for d’origine son cheval de bataille.

9. Dans l’affaire Avotins, c’est bien l’application de la présomption de protection équivalente, combinée à quelques observations propres à l’espèce, qui mène à la conclusion du recours préalable au pays d’origine. La solution n’émane alors pas d’une confrontation directe de la difficulté au droit de la Convention. Et d’ailleurs, là où tout s’était fait de façon mécanique et automatique en 2014, la Cour EDH exprime en 2016 ses réserves, et de la belle manière. Un extrait doit être évoqué, tout à fait représentatif : « Lorsque les juridictions des Etats qui sont à la fois parties à la Convention et membres de l’Union européenne sont appelées à appliquer un mécanisme de reconnaissance mutuelle établi par le droit de l’Union, c’est en l’absence de toute insuffisance manifeste des droits protégés par la Convention qu’elles donnent à ce mécanisme son plein effet. En revanche, s’il leur est soumis un grief sérieux et étayé dans le cadre duquel il est allégué que l’on se trouve en présence d’une insuffisance manifeste de protection d’un droit garanti par la Convention et que le droit de l’Union européenne ne permet pas de remédier à cette insuffisance, elles ne peuvent renoncer à examiner ce grief au seul motif qu’elles appliquent le droit de l’Union» (CEDH, 23 mai 2016, §116). Que dire de plus ? On le voit : la CEDH ne fait nullement du principe de recours préalable au for d’origine sa religion, à l’inverse du juge de Luxembourg. C’est la présomption Bosphorus et la réunion de circonstances factuelles, supposées accablantes pour le requérant, qui mèneront finalement à la nécessité d’un recours préalable au for d’origine et au constat de non-violation de l’article 6§1^er. Mais l’insuffisance manifeste, permettant de renverser la présomption, n’était pas loin (CEDH, 23 mai 2016, §121, faisant état d’une simple « défaillance regrettable »).

10. En conclusion, là où le juge de l’Union s’emploie en matière d’exequatur à construire et à développer un principe transversal de recours préalable au pays d’origine, le juge de la Convention paraît, quant à lui, s’ingénier à tempérer cette ardeur parfois excessive, et surtout susceptible de générer des insuffisances manifestes dans la protection des garanties fondamentales dont elle a la garde. Entre les deux postures, nul doute qu’il faudra inexorablement trancher.

Detecting foreign fighters: the reinvigoration of the Schengen Information System in the wake of terrorist attacks

ORIGINAL PUBLISHED ON “EU IMMIGRATION AND ASYLUM LAW AND POLICY”

By Niovi Vavoula, Queen Mary, University of London

Since the past two decades, the exploitation of new technologies and the emphasis on collecting and exchanging information have been key aspects of the EU counter-terrorism strategy. An array of information exchange schemes have been developed on the basis of an intelligence-led approach, according to which the more data available, the more efficient the policies may be (for an overview of EU information exchange mechanisms see here).

The aim of the present blog post is to assess the role of the Schengen Information System (SIS) in the fight against the growing phenomenon of the “Foreign Fighters”. Landmarks in this context are, apart the terrorist events of 9/11 and the Madrid bombings in 2004, the recent attacks in Paris in January and November 2015 as well as in Brussels on 22 March 2016. It is demonstrated the extent to which the functionalities and the potential of the SIS have been slowly revisited in the wake of events with limited progress up to date. Despite the growing overreliance to this system has not been accompanied by proven effectiveness, the EU legislator calls for further exploitation of the database at the expense of fundamental rights and EU citizenship. The Commission proposal amending the Schengen Borders Code regarding the control of the crossing of external borders by foreign fighters should finally make the system effective but it could violate the principle of proportionality.

The SIS II in a nutshell

At the heart of the compensatory measures for the abolition of internal border controls, the SIS was established under the Schengen Convention and came into operation in 1995. Its overarching purpose was twofold; to maintain public order and security and to apply the provisions of the Convention relating to the movement of persons in the Schengen Area. On the criminal law side, it held basic alphanumeric data categorised in the form of ‘alerts’ on people or objects wanted for criminal law and policing purposes, such as persons wanted for arrest to be surrendered/extradited or missing persons. On the immigration law side, which in practice dominated the content of the database, it stored data on third-country nationals to be refused entry to the Schengen area. The system functioned on a hit / no hit basis, but it was supplemented by the SIRENE, which provided the infrastructure for exchanging additional information between national authorities.

Since April 2013, the SIS has been substituted by the SIS II so as to accommodate the new Member States after the enlargements of 2004 and 2007 and insert new functionalities. In this context, the current legal framework of the SIS II comprises of Regulation 1987/2006 involving the immigration functions of the system, Council Decision 2007/533/JHA regarding its use for policing and criminal law purposes and Regulation 1986/2006 concerning access by vehicle registration authorities. The overarching purpose of ensuring a high level of security remains the same, albeit worded more broadly.

First round: new functionalities of the SIS after 9/11 and Madrid bombings Continue reading “Detecting foreign fighters: the reinvigoration of the Schengen Information System in the wake of terrorist attacks”

Art.19 of the EU Charter (Protection in the event of removal, expulsion or extradition). Interesting Conclusions of AG Yves BOT.

Original published here

OPINION OF ADVOCATE GENERAL Yves BOT delivered on 10 May 2016 (1)

Case C‑182/15 Aleksei Petruhhin

(Request for a preliminary ruling from the Augstākā tiesa (Supreme Court, Latvia)) (Request for a preliminary ruling — Citizenship of the European Union — First paragraph of Article 18 TFEU and Article 21(1) TFEU — Request for the extradition to Russia of a national of one Member State present on the territory of another Member State — Refusal of a Member State to extradite its own nationals — Difference in treatment on the ground of nationality — Whether justified — Combating impunity — Verification of the guarantees provided for in Article 19(2) of the Charter of Fundamental Rights of the European Union)

Extradition may be defined as an international mutual assistance enforcement procedure whereby one State asks another State to surrender to it a person on the territory of the latter State in order to be prosecuted and tried or, if he has already been convicted, in order to serve his sentence.
The present case concerns an extradition request issued by the Russian Federation to the Republic of Latvia in relation to an Estonian national who had been arrested on the territory of the Republic of Latvia.
In essence, the Court is asked to rule on whether the protection against extradition which Latvian nationals enjoy under national law and under a bilateral agreement with the Russian Federation must, under the rules of the FEU Treaty on citizenship of the Union, be extended to nationals of other Member States.
A number of Member States, including the Republic of Latvia, recognised, in their national law and also in the international conventions to which they are parties, the principle that they refuse to extradite their nationals. When an extradition request is addressed to a Member State and that request concerns a citizen of the Union who is not a national of the requested Member State, such a principle establishes a difference in treatment between the nationals of that State and the nationals of the other Member States. I am of the view, however, that such a difference in treatment does not constitute discrimination on the ground of nationality contrary to the first paragraph of Article 18 TFEU, provided that it is shown that those two categories of nationals are not in a comparable situation in the light of the objective of combating the impunity of persons suspected of having committed an offence in a third State.

I – Legal framework

A – EU law

Article 19 of the Charter of Fundamental Rights of the European Union, (2) entitled ‘Protection in the event of removal, expulsion or extradition provides, in paragraph 2:

‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’

B – Latvian law

The Latvian Constitution provides in the third sentence of Article 98:

‘A citizen of Latvia may not be extradited to a foreign country, except in the cases provided for in international agreements ratified by the Saeima (Latvian Parliament) if by the extradition the basic human rights specified in the Constitution are not violated.’

Under Article 4 of the Krimināllikums (criminal law, ‘the Latvian Criminal Law’):

‘1. Latvian citizens, Latvian non-citizens [ (3)] and foreign nationals who have a permanent residence permit for Latvia shall be held liable, in Latvian territory and in accordance with the present Law, for an offence committed in the territory of another State or outside the territory of any State, irrespective of whether it is recognised as an offence and punishable in the place in which it was committed.…

Foreign nationals who do not have a permanent residence permit for Latvia and who have committed serious or very serious offences in the territory of another State which have been directed against the interests of the Republic of Latvia or the interests of its inhabitants shall be held criminally liable in accordance with this Law irrespective of the laws of the State in whose territory the offence was committed if they have not been held criminally liable or faced criminal proceedings in application of the laws of the State in which the offence was committed.
Foreign nationals who do not have a permanent residence permit for Latvia and who have committed a criminal offence in the territory of another State or outside any national territory shall, in the cases provided for in international agreements binding on the Republic of Latvia, be held liable in accordance with this Law irrespective of the laws of the State in whose territory the offence was committed if they have not been held criminally liable for such offence or faced criminal proceedings in respect of that offence in the territory of another State.’
Chapter 66 of the Kriminālprocesa likums (code of criminal procedure, ‘the Latvian Code of Criminal Procedure’), entitled ‘Extradition of a person to a foreign State’, provides in Article 696(1) and (2):

‘(1) A person who is present in the territory of the Republic of Latvia may be extradited for the purpose of criminal proceedings, trial, or the execution of a judgment, if a request has been received from a foreign State for the temporary detention or the extradition of that person and the facts are characterised as a criminal offence under Latvian law and the law of the foreign State.

(2) A person may be extradited for the purpose of criminal proceedings or trial in respect of an offence the commission of which is punished by imprisonment for a maximum term of not less than one year or by a more severe penalty, unless an international treaty provides otherwise.’

Article 697(2) of the Latvian Code of Criminal Procedure is worded as follows:

‘Extradition shall not be granted if:

(1) the person concerned is a Latvian citizen;

(2) the request for the extradition of the person concerned has been made with the aim of commencing criminal proceedings against him or punishing him on the ground of race, religious beliefs, nationality or political views, or if there are sufficient grounds for believing that his rights may be infringed on the abovementioned grounds;…

(7) the person concerned may be tortured in the foreign State.’

The Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters provides, in articles 1 and 62:

‘Article 1: Legal protection

As regards personal and economic rights, the nationals of one of the Contracting Parties present in the territory of the other Contracting Party shall enjoy in that territory the same legal protection as the nationals of the other Contracting Party.
The nationals of one of the Contracting Parties shall be entitled to access freely and without hindrance the courts, the office of the Public Prosecutor and notarial offices … and other institutions of the other Contracting Party with competence for civil, family and criminal matters, they may bring proceedings, submit requests, lodge appeals and carry out other procedural acts before those bodies on the same terms as nationals of that other Contracting Party.…

Article 62: Refusal of extradition

Extradition shall not be granted if:

(1) the person whose extradition is requested is a national of the Contracting Party to which the request is addressed or if he has obtained refugee status in that State.…’

The Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations, signed at Tallinn on 11 November 1992, provides in Article 1(1):

‘As regards personal and economic rights, the nationals of one of the Contracting Parties present in the territory of the other Contracting Party shall enjoy in that territory the same legal protection as the nationals of the other Contracting Party.’

II – Facts of the main proceedings and questions for a preliminary ruling

Mr Aleksei Petruhhin, an Estonian national, was made the subject of a priority Red Notice on Interpol’s website on 22 July 2010.
Mr Petruhhin was arrested on 30 September 2014 in the town of Bauska (Latvia), then placed in provisional custody on 3 October 2014.
On 21 October 2014, the Latvian authorities received an extradition request from the Office of the Prosecutor-General of the Russian Federation. It is apparent from that request that criminal proceedings were initiated against Mr Petruhhin by decision of 9 February 2009 and that Mr Petruhhin ought to have been placed in custody as a security measure. According to that decision, Mr Petruhhin is accused of attempted large-scale drug-trafficking in criminal association. Under Russian law, that offence is punishable with a term of imprisonment of between 8 and 20 years.
The Public Prosecutor of the Republic of Latvia authorised Mr Petruhhin’s extradition to Russia. However, on 4 December 2014 Mr Petruhhin filed an appeal against the extradition decision, on the ground that, under Article 1 of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial assistance and Judicial Relations, he enjoyed the same rights in Latvia as a Latvian national and that, consequently, the Republic of Latvia was required to protect him against unjustified extradition.
The Augstākā tiesa (Supreme Court, Latvia) points out that neither Latvian law nor any international agreement signed by the Republic of Latvia with, in particular, the Russian Federation and with the other Baltic countries restricts the extradition of an Estonian national to Russia. Under Article 62 of the Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters, protection against such extradition is conferred only on Latvian nationals.
The referring court observes, moreover, that although Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (4) authorises the Member States to surrender their own nationals, no consultation mechanism has been established between the Member States for obtaining the consent of the Member State of which a person is a national to the extradition of that person to a third State.
According to the referring court, it follows from the foregoing considerations that the protection afforded by a Member State to its own nationals against extradition to a third State is effective only on the territory of that Member State. The referring court is of the view, however, that that is contrary to the essence of citizenship of the Union, that is to say, the right to equivalent protection. It emphasises that that situation creates uncertainty for citizens of the European Union as regards freedom of movement within the European Union.
The referring court expresses the view that, under EU law, where there is a request for the extradition of a national of a Member State to a third State, the requested Member State should ensure the same level of protection for citizens of the Union as for its own nationals.
Being uncertain, none the less, as to the interpretation to be given to EU law, the Augstākā tiesa (Supreme Court) decided on 26 March 2015, while annulling the detention of Mr Petruhhin, to stay proceedings and to submit the following questions to the Court for a preliminary ruling:

‘1. Are the first paragraph of Article 18 TFEU and Article 21(1) TFEU to be interpreted as meaning that, in the event of extradition of a citizen of any Member State of the European Union to a non-Member State under an extradition agreement concluded between a Member State and a third country, the same level of protection must be guaranteed as is guaranteed to a citizen of the Member States in question?

In those circumstances, must the court of the Member State to which the request for extradition has been made apply the conditions for extradition of the Member State of which the person concerned is a citizen or that in which he has his habitual residence?
In cases in which extradition must be carried out without taking into consideration the specific level of protection established for the citizens of the State to which the request for extradition has been made, must the Member State to which the request for extradition has been made verify compliance with the safeguards established in Article 19 of the Charter, that is, that no one may be extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment? May such verification be limited to checking that the State requesting extradition is a party to the Convention against Torture or is it necessary to check the factual situation by taking into consideration the evaluation of that State carried out by the bodies of the Council of Europe?’

III – My analysis

A – Preliminary observations

The possible application of Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations for the purpose of resolving the main proceedings
In his appeal against the decision of the Public Prosecutor of the Republic of Latvia authorising his extradition, Mr Petruhhin relies, in particular, on Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations. He claims, on the basis of that provision, that he should receive from the Republic of Latvia the same protection as that Member State affords its nationals in the event of criminal proceedings. It follows that that Member State is required to protect Mr Petruhhin against an unjustified extradition request and that he is entitled to expect that the Republic of Latvia will do its utmost to obtain evidence to establish his guilt or innocence. In his submission, however, it is apparent from the position adopted by the Public Prosecutor of the Republic of Latvia that nothing will be done to verify as much and as accurately as possible the offences which he is alleged to have committed on Russian territory.
At the hearing, the Latvian Government was asked whether Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations might be interpreted as conferring on Estonian and Lithuanian nationals the same protection against extradition as that enjoyed by Latvian nationals. The Latvian Government stated, in that regard, that thus far the Latvian case-law has not interpreted that provision as conferring additional guarantees on Estonian and Lithuanian nationals not to be extradited by the Republic of Latvia.
It is for the referring court to ascertain whether it may find a solution to the main proceedings by interpreting Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations. It is incumbent on that court, in particular, to consider whether the expression ‘personal rights’ in that provision covers the right to legal protection against extradition.
Admissibility of the request for a preliminary ruling
At the hearing, the Latvian Government revealed that Mr Petruhhin is no longer on its territory, but that, following the cancellation of his detention on 26 March 2015, he returned to Estonia. The Governments of the Member States which expressed their views at the hearing inferred that the present request for a preliminary ruling should be declared inadmissible.
In that regard, it should be recalled that, according to settled case-law, the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law which they require in order to decide the disputes before them. (5)
In the context of that cooperation, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, provided that the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. (6)
It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (7)
Thus, it should be borne in mind that, according to settled case-law, it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it, in which it is called upon to give a decision which is capable of taking account of the preliminary ruling. (8)
That is the position in the present case. The Latvian Government confirmed at the hearing that there is still a dispute pending before the referring court. Whatever the uncertainty as to Mr Petruhhin’s present whereabouts, the referring court must therefore adjudicate on the legality of the decision taken by the Public Prosecutor of the Republic of Latvia to extradite him. Under Article 707 of the Latvian Code of Criminal Procedure, the referring court may decide either that the Public Prosecutor’s decision must be upheld, or that it must be annulled and that the extradition must not be authorised, or that the extradition request must be further examined. From the aspect of the decision to be taken by the referring court, an answer from the Court to the questions submitted by the referring court is still wholly relevant. Just as in the case of a convicted person who absconds after being found guilty, such a decision may then be enforced at any time, if need be after Mr Petruhhin has been re-arrested on Latvian territory.
In the light of those factors, I therefore consider that the present request for a preliminary ruling is admissible.

B – First and second questions

By its first and second questions, which should be examined together, the referring court asks the Court, in essence, to rule on whether the first paragraph of Article 18 TFEU and Article 21(1) TFEU must be interpreted as meaning that a national of one Member State who is on the territory of another Member State and who is the subject of an extradition request by a third State must benefit from the same rule as that which protects the nationals of that other Member State against extradition.
It is appropriate first of all to ascertain whether Mr Petruhhin’s situation falls within the scope of EU law and, in particular, the provisions of the FEU Treaty on citizenship of the Union.
All the Governments which have submitted observations to the Court, with the exception of the Government of the United Kingdom, claim that the rules on extradition, in a situation in which the European Union has not concluded an agreement on extradition with a third State, falls within the competence of the Member States and is therefore not covered by EU law.
I do not share that view. On the contrary, I endorse the view position expressed by the Government of the United Kingdom at the hearing, namely that the first paragraph of Article 18 TFEU and Article 21(1) TFEU are applicable since Mr Petruhhin exercised his right to freedom of movement or his right of residence under EU law and that he is therefore, in principle, entitled to be treated in the same way as nationals of the host Member State.
It should be pointed out that, as an Estonian national, Mr Petruhhin has the status of a citizen of the Union pursuant to the first paragraph of Article 20(1) TFEU and may therefore rely, as against both his Member State of origin and the Member State to which he travels, on the rights attaching to such a status.
As the Court has held on numerous occasions, the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy, within the scope ratione materiaeof the FEU Treaty, the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard. (9)
As citizenship of the Union, established by Article 20 TFEU, is not intended to extend the material scope of the FEU Treaty to internal situations which have no link with EU law, (10) it is necessary to identify whether such links exist.
On this point, the Governments of the Member States have reiterated, in the context of these proceedings, the classic position in this type of situation, namely that in order for the FEU Treaty rules on citizenship of the Union to be applicable the facts of the main proceedings must relate to a matter governed by EU law and that it is not sufficient that the citizen of the Union concerned has exercised his freedom of movement.
However, it must be emphasised that it is settled case-law that the situations falling within the scope of EU law include those involving the exercise of the fundamental freedoms guaranteed by the FEU Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 21 TFEU. (11) Thus, in matters falling within the competence of the Member States, a relevant link with EU law may consist in the exercise by a national of one Member State of his right to move and reside on the territory of another Member State. (12) Conversely, where the Court is faced with a situation in which the matter at issue falls within the competence of the Member State and, moreover, the person relying on EU law has not made use of his right to freedom of movement provided for in Article 21 TFEU, it will declare that it has no jurisdiction to rule on the request for a preliminary ruling before it. (13)
It is common ground that Mr Petruhhin, who was arrested in Latvia, made use of his freedom to move and reside in another Member State, guaranteed by Article 21(1) TFEU.
It should also be made clear that, in the absence of rules of EU law on the extradition of nationals of the Member States to Russia, (14) the Member States retain the power to adopt such rules and to conclude agreements on such extradition with the Russian Federation.
However, the Member States are required to exercise that power in a manner consistent with EU law, and in particular with the provisions of the FEU Treaty on freedom to move and reside on the territory of the Member States, as conferred by Article 21(1) TFEU on every citizen of the Union. That constitutes the application, in matters related to extradition, of a consistent body of case-law to the effect that the Member States are required, in the exercise of their powers, to respect EU law and in particular the provisions of the FEU Treaty on freedom to move and reside on the territory of the European Union recognised to every citizen. (15)
Thus, in areas falling within the powers of the Member States, where a particular situation has a sufficiently close link with EU law, which is the case of a citizen of the Union who has exercised his right to move and reside on the territory of the Member States, those States are required to justify, by objective reasons, a difference in treatment between their nationals and the nationals of the other Member States. (16)
It is now appropriate to examine whether the rule that the Republic of Latvia does not extradite its own nationals constitutes discrimination on the ground of nationality, contrary to the first paragraph of Article 18 TFEU.
Mr Petruhhin was arrested in Latvia and held in custody there until 26 March 2015. An extradition request from the Prosecutor-General of the Russian Federation was received by the Public Prosecutor of the Republic of Latvia on 21 October 2014. It is therefore the provisions of Latvian law and those of the Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters that are to be applied.
In the context of the present case, the rule that Latvian nationals may not be extradited from Latvia to a third State is set out in the third sentence of Article 98 of the Latvian Constitution, Article 697(2)(1) of the Latvian Code of Criminal Procedure and Article 62(1)(1) of the Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters.
Since under that rule only Latvian nationals enjoy that protection against extradition, it follows that they are treated differently from nationals of other Member States who are on Latvian territory and whose extradition has been requested by a third State.
As Mr Petruhhin exercised his freedom to move and reside on Latvian territory, as conferred by Article 21(1) TFEU, it is in the light of the first paragraph of Article 18 TFEU that the compatibility of the rule that the Republic of Latvia does not extradite its own nationals to Russia with the principle prohibiting any discrimination on the ground of nationality must be examined.
It is appropriate in that regard to bear in mind that it is settled case-law that the principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. Such treatment may be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the objective being legitimately pursued. (17)
It is therefore necessary to compare, in a context such as that of the main proceedings, the situation of non-Latvian citizens of the Union residing in Latvia with that of Latvian nationals.
The principle that a State does not extradite its own nationals is a traditional principle of extradition law. Its origins lie in the sovereignty of States over their nationals, the mutual obligations between a State and its nationals and the lack of confidence in the legal systems of other States. Thus, the grounds relied upon to justify that principle include, in particular, the State’s duty to protect its nationals from the application of a foreign legal system, of whose procedures and language they are ignorant and in the context of which it may be difficult for them to mount their defence. (18)
When examined in the light of EU law and the equal treatment which it requires, the foundations of the principle of non-extradition of nationals seem relatively weak. The same applies to the duty of protection which a Member State should have towards its nationals. I do not see why such a duty should not be extended to the nationals of the other Member States. Article 20(2)(c) TFEU lends support to that view, moreover, in so far as it provides that citizens of the Union are to have ‘the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State’.
The same also applies to the argument that the principle of non-extradition of nationals is based on the States’ distrust of foreign legal systems. It has been appositely observed on that point that ‘this distrust is no doubt one of the essential foundations of what fashions the way in which extradition is practised — and in particular refused — nowadays. But while it may constitute good reason for a State not to respond favourably to an extradition request, it does not readily explain why such a request would be refused only where it involves the extradition of a national, on the ground of his nationality. If distrust justifies a refusal to extradite, it justifies a refusal with respect to everyone and not just nationals. (19)
Although the foundations of the rule that a State does not extradite its own nationals must therefore be treated with caution when they are evaluated in the light of the principle of non-discrimination on the ground of nationality, there is, however, in my view, an objective reason to distinguish the situation of the nationals of the requested Member State and that of nationals of other Member States where extradition is requested by a third State.
Thus, it is necessary to compare, in a context such as that of the main proceedings, the situation of non-Latvian citizens of the Union residing in Latvia with that of Latvian nationals by reference to the objective to which several Member States and the European Commission have drawn attention in the present proceedings, namely the objective of combating the impunity of persons suspected of having committed an offence. Such an objective is most certainly a legitimate objective in EU law. (20)
I would, on that point, observe that extradition is a procedure which enables an offence to be prosecuted or a penalty enforced. In other words, it is a procedure whose intrinsic aim is to combat the impunity of a person who is present in a territory other than that in which an offence was committed. (21)
In the light of such an objective, the situation of the two categories of citizens of the Union referred to above could be regarded as comparable only if both could be prosecuted in Latvia for offences committed in a third State.
In other words, when examining of the comparability of the situations of nationals of the requested Member State and nationals of the other Member States, it is necessary to ascertain whether, in accordance with the maxim aut dedere aut judicare(either extradite or prosecute), Union citizens who were not extradited to a third State could be prosecuted in the requested Member State for offences committed in that third State. It is therefore necessary to ascertain whether the traditional principle of international law on extradition that a requested State which refuses to extradite its nationals must be able to prosecute them is observed in the present case.
Hugo Grotius defined the principle aut dedere aut punire(either extradite or punish) as follows: ‘when appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal’. (22) The word ‘punish’ is now replaced by the word ‘prosecute’ as the second part of the alternative to extradition in order to take account of the presumption of innocence enjoyed by all those suspected of having committed an offence.
The maxim aut dedere aut judicare is also expressed in many bilateral or multilateral conventions on extradition. (23) The obligation to extradite or prosecute is expressed, for example, in the European Convention on Extradition, signed in Paris on 13 December 1957. Article 6(1)(a) of that Convention thus provides that ‘a Contracting Party shall have the right to refuse extradition of its nationals’. Article 6(2) of that Convention completes that provision in so far as it provides that ‘if the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate’.
As indicated in the United Nations Final Report of 2014, entitled ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, those conventions are based on the mutual general commitment of the States Parties to surrender any person against whom the competent authorities of the requesting State have initiated proceedings or who is being sought for the purpose of executing a sentence or a security measure. There are a number of exceptions to that obligation to extradite, however, in particular where the person whose extradition is requested is a national of the requested State. In order to avoid impunity, those conventions impose the second part of the alternative on the requested State, namely the obligation to prosecute the offender if it refuses to extradite him. (24)
Thus, under the obligation to extradite or to prosecute, if the requested State does not comply with an extradition request, it is required to prosecute (25) the suspected person in order to ensure the effectiveness of international co-operation between States and to ensure that he does not remain unpunished.
It is precisely by reference to the latter element that, in the context of the present case, Latvian nationals and nationals of other Member States are not in a comparable situation.
The risk of impunity of the person named in an extradition request may exist if the requested Member State has not made provision in its domestic law for jurisdiction allowing it to try a national of another Member State suspected of having committed an offence on the territory of a third State.
In that regard, I would observe, as the Commission has done, that under Article 4(1) of the Latvian penal law, ‘Latvian citizens, Latvian non-citizens [ (26)] and foreign nationals who have a permanent residence permit for Latvia shall be held liable, in Latvian territory and in accordance with the present Law, for an offence committed in the territory of another State or outside the territory of any State, irrespective of whether it is recognised as an offence and punishable in the place in which it was committed’.
It follows from that provision that Latvian nationals who have committed an offence in a third State may be prosecuted in Latvia. That is also the case for foreign nationals in possession of a permanent residence permit for Latvian territory.
In the case of foreign nationals not in possession of such a permit, on the other hand, the exercise by the Latvian criminal courts of their jurisdiction in respect of offences committed on the territory of another State is limited, under Article 4(3) of the Latvian criminal law, to cases of ‘serious or very serious offences which have been directed against the interests of the Republic of Latvia or the interests of its inhabitants’.
It therefore appears to follow from those provisions of the Latvian criminal law that a national of a Member State other than the Republic of Latvia, such as Mr Petruhhin, who, as the parties are agreed, does not have a permanent residence permit for Latvian territory, cannot be prosecuted in Latvia for an offence which he is suspected of having committed in Russia. It follows that, in the light of the objective of preventing the impunity of persons suspected of having committed an offence in a third State, that national is not in a situation comparable with that of Latvian nationals.
Accordingly, the difference in treatment between non-Latvian citizens of the Union residing in Latvia and Latvian nationals does not constitute discrimination prohibited by the first paragraph of Article 18 TFEU, in so far as it is justified by the objective of combating the impunity of persons suspected of having committed an offence in a third State.
Consequently, in circumstances such as those of the main proceedings, the first paragraph of Article 18 TFEU and Article 21(1) TFEU should be interpreted as meaning that they do not require that a national of a Member State present on the territory of another Member State who is the subject of an extradition request by a third State should benefit from the same rule as that which protects the nationals of that other Member State against extradition.

C – Third question

By its third question, the referring court asks the Court, in essence, to rule on whether a Member State which decides to extradite a citizen of the Union to a third State is required to verify the guarantees provided for in Article 19(2) of the Charter and on what form that verification must take.
It is apparent from the file before the Court that that question seems to originate in Mr Petruhhin’s claim that he would be threatened with torture if he were extradited to Russia.
According to Article 19(2) of the Charter, ‘no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’.
The explanations relating to the Charter of Fundamental Rights (27) state that Article 19(2) ‘incorporates the relevant case-law from the European Court of Human Rights regarding Article 3 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (28)]’. (29)
Since the situation of a national of a Member State who, like Mr Petruhhin, has exercised his freedom to move and reside in the territory of another Member State, falls, as we have seen earlier, within the scope of EU law, I am of the view that Article 19(2) of the Charter may apply in such a situation.
Thus, a court of a Member State which receives a request relating to the extradition of a national of another Member State who has exercised rights conferred by Article 21(1) TFEU is required to verify the guarantees provided for in Article 19(2) of the Charter.
As to what form that verification must take, it is appropriate, in accordance with the explanations in respect of Article 19(2) of the charter, to refer to the relevant case-law of the European Court of Human Rights on Article 3 of the ECHR.
It follows from the consistent case-law of that Court that protection against the treatment prohibited under Article 3 of the ECHR is absolute, and that, accordingly, the extradition of a person by a Contracting State can raise problems under that provision and therefore engage the responsibility of the State in question under the ECHR, where there are serious grounds to believe that if the person is extradited to the requesting country, he would run the real risk of being subjected to treatment contrary to that provision. (30) In such cases, Article 3 of the ECHR ‘implies an obligation not to remove the person in question to the said country, even if it is a non-Convention State’. (31) The European Court of Human Rights states that it ‘draws no distinction in terms of the legal basis for removal; it adopts the same approach in cases of both expulsion and extradition’. (32)
When the European Court of Human Rights examines whether an applicant would run the real risk of being subjected to ill treatment in the third country of destination, it considers ‘both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider’. (33) Beyond the general situation in the country of destination, the real risk of being subjected to treatment prohibited by Article 3 of the ECHR must therefore be assessed by reference to the individual circumstances of the person concerned.
In order to determine whether there are substantial grounds for believing the existence of a real risk of treatment contrary to Article 3 of the ECHR, the European Court of Human Rights assesses the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu. (34) As regards the general situation in a country, it has often attached importance to information in recent reports from independent international associations for the protection of human rights, such as Amnesty International or government sources. (35)
In addition to that description of the case-law of the European Court of Human Rights, and along the lines of that case-law, it is also appropriate to take note of what the Court recently held in its judgment of 5 April 2016 in Aranyosi and Căldăraru(C‑404/15 and C‑659/15 PPU, EU:C:2016:198), in the context of the application of Framework Decision 2002/584, as amended by Framework Decision 2009/299.
The Court held in that judgment, in particular, with regard to Article 4 of the Charter, that ‘in order to ensure respect for [that article] in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of [deficiencies which may be systemic or generalised, or which may affect certain groups of people] that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of [that article]’. (36)
To my mind, the methodology thus defined by the Court can be transposed to a situation in which, following a request for the extradition of a citizen of the Union issued by a third country, the judicial authority of the requested Member State ascertains whether the guarantees laid down in Article 19(2) of the Charter are respected.

IV – Conclusion

In the light of all of the foregoing consideration, I propose that the questions submitted by the Augstākā tiesa (Supreme Court, Latvia) should be answered as follows:

In circumstances such as those of the main proceedings, the first paragraph of Article 18 TFEU and Article 21(1) TFEU should be interpreted as meaning that they do not require that a national of a Member State present on the territory of another Member State who is the subject of an extradition request by a third State should benefit from the same rule as that which protects the nationals of that other Member State against extradition.

In order to ensure respect for Article 19(2) of the Charter of Fundamental Rights of the European Union in the individual circumstances of the person who is the subject of an extradition request, the judicial authority of the requested Member State, when faced with evidence of the existence of deficiencies which may be systemic or generalised, or which may affect certain groups of people that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following his extradition to the requesting third State, that citizen of the Union will run a real risk of being subject in that State to inhuman or degrading treatment, within the meaning of that provision.

1 – Original language: French.

2 – ‘The Charter’.

3 – When questioned at the hearing about the meaning of this expression, the Latvian Government explained that ‘Latvian non-citizens’ are former Soviet citizens who arrived in Latvia after that State gained independence. These citizens did not choose either Latvian nationality or Russian nationality and may become naturalised.

4 – OJ 2002 L 190, p. 1. Framework Decision as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009, L 81, p. 24).

5 – See, in particular, judgment of 6 October 2015 in Capoda Import-Export (C‑354/14, EU:C:2015:658, paragraph 23 and the case-law cited).

6 – See, in particular, judgment of 6 October 2015 in Capoda Import-Export (C‑354/14, EU:C:2015:658, paragraph 24 and the case-law cited).

7 – See, in particular, judgment of 6 October 2015 in Capoda Import-Export (C‑354/14, EU:C:2015:658, paragraph 25 and the case-law cited).

8 – See, in particular, order of 5 June 2014 in Antonio Gramsci Shipping and Others (C‑350/13, EU:C:2014:1516, paragraph 10 and the case-law cited).

9 – See, in particular, judgment of 26 February 2015 in Martens (C‑359/13, EU:C:2015:118, paragraph 21 and the case-law cited).

10 – See, in particular, judgment of 26 October 2006 in Tas-Hagen and Tas (C‑192/05, EU:C:2006:676, paragraph 23 and the case-law cited).

11 – See, in particular, judgments of 11 July 2002 in D’Hoop (C‑224/98, EU:C:2002:432, paragraph 29 and the case-law cited); of 16 December 2008 in Huber (C‑524/06, EU:C:2008:724, paragraph 71 and the case-law cited); of 4 October 2012 in Commissionv Austria (C‑75/11, EU:C:2012:605, paragraph 39 and the case-law cited); and of 26 February 2015 in Martens (C‑359/13, EU:C:2015:118, paragraph 22 and the case-law cited).

12 – See Iliopoulou, A., ‘Entrave et citoyenneté de l’Union’, L’entrave dans le droit du marché intérieur, Bruylant, Brussels, 2011, p. 191. According to the author, ‘no national rule can be excluded a priori from the classification as a barrier in the context of citizenship. The existence of a cross-border element is sufficient to bring the situation within the context of Community law and to trigger a review of compatibility with the requirements of the Treaty’ (p. 202). See also, on that point, the Opinion of Advocate General Kokott in Tas-Hagen and Tas (C‑192/05, EU:C:2006:223, points 25 to 43).

13 – See, in particular, order of 19 June 2014 in Teisseyre (C‑370/13, not published, EU:C:2014:2033, paragraphs 33 to 35).

14 – There is, on the other hand, an Agreement on extradition between the European Union and the United States (OJ 2003 L 181, p. 27) (see Council Decision 2009/820/CFSP of 23 October 2009 on the conclusion on behalf of the European Union of the Agreement on extradition between the European Union and the United States of America and the Agreement on mutual legal assistance between the European Union and the United States of America (OJ 2009 L 291, p. 40)).

15 – See, in particular, concerning national provisions on compensation for victims of assaults carried out on national territory, judgment of 2 February 1989 in Cowan (186/87, EU:C:1989:47, paragraph 19); regarding national rules on criminal matters and criminal procedure, judgment of 24 November 1998 in Bickel and Franz (C‑274/96, EU:C:1998:563, paragraph 17); on national rules governing a person’s surname, judgments of 2 October 2003 in Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 25), and of 12 May 2011 in Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 63 and the case-law cited); regarding an enforcement procedure for the recovery of debts, judgment of 29 April 2004 in Pusa (C‑224/02, EU:C:2004:273, point 22); as regards national rules on direct taxation, judgment of 12 July 2005 in Schempp (C‑403/03, EU:C:2005:446, paragraph 19); concerning national rules defining the persons entitled to vote and stand as a candidate in elections to the European Parliament, judgment of 12 September 2006 in Spain v United Kingdom (C‑145/04, EU:C:2006:543, paragraph 78); regarding the definition of the conditions for the acquisition and loss of nationality, judgment of 2 March 2010 in Rottmann (C‑135/08, EU:C:2010:104, paragraphs 39 and 41); as regards the Member States’ power to organise their social security schemes, judgments of 19 July 2012 in Reichel-Albert (C‑522/10, EU:C:2012:475, paragraph 38 and the case-law cited), and of 4 October 2012 in Commission vAustria (C‑75/11, EU:C:2012:605, paragraph 47 and the case-law cited); and, as regards the content of teaching and the organisation of the education systems of the Member States, judgment of 26 February 2015 in Martens (C‑359/13, EU:C:2015:118, paragraph 23 and the case-law cited).

16 – See Iliopoulou, A., op. cit. According to that author, ‘the right of citizenship of the Union obliges the right of national citizenship to justify itself, to demonstrate its relevance and its proportionality. The State must review in the light of European standards its relations not only with the Community “abroad” but also with its nationals’ (p. 196).

17 – See, in particular, judgment of 16 December 2008 in Huber (C‑524/06, EU:C:2008:724, paragraph 75 and the case-law cited).

18 – See Deen-Racsmány, Z., and Blekxtoon, R., ‘The Decline of the Nationality Exception in European Extradition?’, European Journal of Crime, Criminal Law and Criminal Justice, vol. 13/3, Koninklijke Brill NV, The Netherlands, 2005, p. 317.

19 – See Thouvenin, J.-M., ‘Le principe de non extradition des nationaux’, Droit international et nationalité, Colloque de Poitiers de la Société française pour le droit international, Pedone, Paris, 2012, p. 127, especially p. 133.

20 – That objective of combating impunity was taken into account by the Court, in particular, in its judgment of 27 May 2014 inSpasic (C‑129/14 PPU, EU:C:2014:586, paragraphs 58 and 72).

21 – See, in particular, Eur. Court HR, 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 117 and the case-law cited), where the European Court of Human Rights states that it ‘does not lose sight of the fundamental aid of extradition, which is to prevent fugitive offenders from evading justice, nor the beneficial purpose which it pursues for all States in a context where crime is taking on a larger international dimension’.

22 – See Grotius, H., De jure belli ac pacis, Book II, Chap. XXI, sect. IV. Le droit de la guerre et de la paix: French translation by Barbeyrac, J., Amsterdam, Pierre de Coud, 1724, vol. 1, p. 639, especially p. 640.

23 – See, for example, the multilateral conventions cited on page 14 of the United Nations Final Report 2014, entitled ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, namely the European Convention on Extradition, signed in Paris on 13 December 1957; the General Convention on Judicial Cooperation, signed in Tananarive on 12 September 1961; the Inter-American Convention on Extradition of 1981; the Economic Community of West African States Convention on Extradition, adopted in Abuha on 6 August 1994, and the London Scheme for Extradition within the Commonwealth.

24 – See p. 14 of the Final Report.

25 – Although the expression ‘obligation to prosecute’ is most often used, it would be more accurate to speak of an obligation to bring the matter before the authorities with the power to prosecute. Depending on the evidence, the fulfilment of that obligation may or may not lead to the initiation of a prosecution.

26 – As to the meaning of this expression, see footnote 3 of this Opinion.

27 – OJ 2007 C 303, p. 17.

28 – ‘The ECHR’.

29 – Reference is made to the judgments of the Eur. Court HR of 7 July 1989 in Soering v. United Kingdom (CE:ECHR:1989:0707JUD001403888) and of 17 December 1996 in Ahmed v. Austria (CE:ECHR:1996:1217JUD002596494).

30 – See, in particular, Eur. Court HR, 4 February 2005, Mamatkoulov and Askarov v. Turkey (CE:ECHR:2005:0204JUD004682799, § 67); 28 February 2008, Saadi v. Italy (CE:ECHR:2008:0228JUD003720106, § 125 and the case-law cited); and 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 116 and the case-law cited).

31 – Eur. Court HR, 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 116).

32 – Eur. Court HR, 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 116 and the case-law cited).

33 – See, in particular, Eur. Court HR, 17 January 2012, Othman (Abu Qatada) v. United Kingdom (CE:ECHR:2012:0117JUD000813909, § 187).

34 – See, in particular, Eur. Court HR, 30 October 1991, Vilvarajah and Others v. United Kingdom (CE:ECHR:1991:1030JUD001316387, § 107; 4 February 2005, Mamatkoulov and Askarov v. Turkey (CE:ECHR:2005:0204JUD004682799, § 69); and 28 February 2008 Saadi v. Italy (CE:ECHR:2008:0228JUD003720106, § 128 and the case-law cited).

35 – See, in particular, Eur. Court HR, 4 February 2005, Mamatkoulov and Askarov v. Turkey, (CE:ECHR:2005:0204JUD004682799, § 72), and 28 February 2008, Saadi v. Italy, (CE:ECHR:2008:0228JUD003720106, § 131 and the case-law cited).

36 – Judgment of 5 April 2016 in Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 94).

EU-US cooperation in Justice and Home Affairs – an overview

ORIGINAL PUBLISHED ON THE EUROPEAN PARLIAMENT RESEARCH SERVICE (EPRS) SITE

SUMMARY

The United States is the key partner of the European Union in the area of justice and home affairs (JHA), including in the fight against terrorism. While formal cooperation on JHA issues between the US and the EU goes back to the 1995 New Transatlantic Agenda, it is since 2001 in particular that cooperation has intensified. Today, and for the period up until 2020, the key areas of transatlantic efforts in the JHA field are personal data protection, counter-terrorism and countering violent extremism, migration and border controls, tracing of firearms and explosives, money laundering and terrorism financing, cybercrime, drugs and information exchange.

Regular dialogues at all levels, extensive operational cooperation and a series of legal agreements demonstrate the development of the transatlantic partnership on JHA. Assessments state that cooperation on law enforcement and counter-terrorism has led to hundreds of successful joint operations each year, and many foiled terrorist plots. Nevertheless, important challenges remain, in particular in light of the revelations of US mass surveillance activities and the resultant growth in EU concerns about US standards for data privacy.

The European Parliament is making use of its extended powers in the JHA field, by urging a high level of data protection as well as effective and non-discriminatory means of redress for EU citizens in the US over improper use of their personal data.

EU-US cooperation on JHA issues

Background

Formal EU-US cooperation on justice and home affairs (JHA) started in 1995, on the basis of the New Transatlantic Agenda and the Joint EU-US Action Plan, and was significantly reinforced after the 9/11 attacks.¹ In particular, cooperation on cross-border law enforcement and intelligence, including counter-terrorism, has been one of the EU’s key priorities since 2001; today the relationship with the USA is the EU’s most advanced in this area. In particular, EU-US cooperation has been focused on the fight against terrorism and transnational crime, law enforcement and information exchange for law enforcement, protection of personal data, border management, visa and migration policies, and cybersecurity and cybercrime.

The US has increasingly recognised the EU as an actor in its own right (rather than the Member States) in the JHA area. Regular high-level political and security dialogue, extensive contacts, inter-agency operational cooperation, as well as a series of legal agreements between the US and the EU are evidence of this recognition, and of the evolution of the transatlantic partnership on JHA matters. Nevertheless, despite the continued emphasis on shared values, significant challenges to cooperation remain due to the different EU and US approaches. The revelations of US mass surveillance programmes and intelligence collection in Europe have affected transatlantic trust, and intensified EU concerns about data privacy and information exchange on the other side of the Atlantic. Other tensions have arisen in respect of US detainee policies, differences in terrorist designation lists in the US and EU, as well as border control and security measures.

Political dialogue on JHA and operational cooperation

The political dialogue on justice and home affairs issues, including counter-terrorism, is the EU’s most advanced with any third country, considering the number and level of contacts and the extensive policy cooperation. These links between officials on both sides of the Atlantic have increased since 2001 and, today, EU-US meetings take place regularly at both ministerial and senior official level:

Biannual ministerial meetings on justice and home affairs;
Biannual JHA informal high-level meetings (normally at the start of each six-month EU Council presidency);
Biannual political dialogues on terrorism between the US State Department and the European External Action Service (EEAS); and between the Commission and the US Department of Justice;²
Biannual dialogue of legal advisers of the EU, Member States and the US State Department, on counter-terrorism and international law;
Steering committee on countering violent extremism (several times a year);
Dialogue on terrorist financing;
High-level policy dialogue on border and transport security;
EU-US Working Group on Cybercrime and Cybersecurity;
Expert-level dialogue on protection of critical infrastructure.

EU-US cooperation at operational level is also highly developed, and is now a daily event for internal security and intelligence agencies, judicial authorities, treasury and trade authorities, border security and transport authorities. Law enforcement agencies share data and intelligence, and conduct joint operations. For example, joint operations in the counter-terrorism area have been run against identified terrorist networks, including coordinated freezing of financial assets and the surveillance and disruption of their means of online communication. According to Europol, in 2014 alone, more than 600 international operations were initiated in cooperation with US federal agencies leading to many operational successes in various crime areas, including against ‘darknet’ marketplaces, large-scale violation of intellectual property rights, currency counter-feiting, cybercrime and organised crime groups involved in the distribution of child sexual exploitation material. Of a yearly average of 500 operations initiated in cooperation with the US, around 50 are considered high-impact operations.

The mutual exchange of liaison officers has also advanced inter-agency and operational cooperation: two Europol liaison officers are posted in Washington DC, while US liaison officers from 11 federal agencies are posted to Europol and a permanent liaison prosecutor works at Eurojust.

Priority areas

In October 2009, EU and US ministers adopted the Washington Statement on enhancing transatlantic cooperation in the Area of Justice, Freedom and Security, which set out the principles and main areas of EU-US cooperation, such as mobility, law enforcement, counter-terrorism, judicial cooperation, fundamental freedoms, resilience and international cooperation for the following five years. The EU and US intended to build on the progress achieved up to that point (on customs cooperation, extradition and mutual assistance, passenger name records (PNR), and operational arrangements) and also take into account the EU’s multiannual priorities in the Area of Freedom, Justice and Security under the Stockholm Programme, adopted a few months later.

In June 2015, the EU-US ministerial meeting on Justice and Home Affairs endorsed the Riga Statement which reconfirms the principles of the Washington Statement, and outlines new priority areas for transatlantic cooperation during the next five years (as well as a set of concrete actions for each area): personal data protection, counter-terrorism and countering violent extremism (CVE), migration and border control, tracing of firearms and explosives, money laundering and terrorism financing, cybercrime, drugs and information exchange. In recent years, the threats from foreign terrorist fighters and organised crime have climbed high on the transatlantic agenda, with measures such as border security, visas, and information exchange being discussed to address these threats. In addition, the current Dutch Council Presidency has set out its priorities in this area, namely migration and counter-terrorism, as well as a special focus on cybersecurity and cybercrime (as well as human trafficking, victims’ rights and cooperation on forensic science).

Counter-terrorism and countering violent extremism (CVE)

Since 2001, transatlantic cooperation in the fight against terrorism has intensified. A series of agreements aimed at increasing cooperation and information-sharing for the purpose of law enforcement, including countering terrorism (see section below), have been concluded between the US and the EU, in addition to the bilateral cooperation and arrangements in place between the US and individual Member States. Several joint Declarations and Statements on counter-terrorism have been issued over the years, including the 2010 Declaration on counter-terrorism, whereby the EU, its Member States and the US announced their resolve to combat international terrorism within the rule of law, and set out the main areas and tools for cooperation in this respect. A specific joint interest has emerged in radicalisation and countering violent extremism since 2008-2009, and this has intensified in recent years. The Steering Committee on CVE meets several times a year and discusses issues such as terrorist travel, countering terrorists’ online activities, challenging extremist narratives, deradicalisation programmes in prisons, and cooperation on CVE activities in third countries. Inter-agency cooperation in this area has also developed between Europol and the US Department for Homeland Security (DHS); the US also recently suggested placing US agents in Europol to work on counter-narratives in the online environment. Foreign terrorist fighters has become a priority issue for EU-US counter-terrorism cooperation,³as well as addressing terrorist financing. Cooperation on border security, aviation security, intelligence and information-sharing between law enforcement agencies, and counter-radicalisation efforts have become interlinked issues in the EU and US fight against terrorism.

On the other hand, several problematic topics have affected transatlantic cooperation on counter-terrorism, including differences between EU and US designated terrorist lists, data protection, and the US practices of extraordinary rendition and secret detention facilities. In addition, there have been tensions related to the US visa-free travel arrangements (Visa Waiver Program) which are not applied uniformly to all EU citizens.

Personal data protection

Despite the adoption in 2009 of common personal data protection principles by the US and the EU, personal data privacy continues to be one of the most important challenges in transatlantic cooperation, both with regard to the information-sharing agreements for law enforcement purposes – such as the EU-US Agreement on Passenger Name Records (PNR) and the TFTP/SWIFT agreement – and to the frameworks for commercial data transfers from the EU to US. Many in the EU, including the European Parliament, have raised serious concerns with regard to the protection of personal data in the US, claiming violations of EU citizens’ basic rights. The 2013 Snowden revelations of mass surveillance activities in Europe by the US National Security Agency have reinforced EU demands for stronger levels of data protection in the US, as well as for non-discrimination for EU citizens with regard to the means of redress available in the US. In this context, restoring trust in the transatlantic relationship has been underpinned by the revision of existing agreements regulating data transfers and the negotiations of new ones, such as the Umbrella Agreement.

Migration and border security

The EU and US have concluded several agreements on customs cooperation, including mutual recognition of air and maritime cargo security regimes. The US DHS also signed in 2009 a working arrangement with Frontex, the EU’s agency for border management cooperation, covering areas including risk assessment, sharing of best practices, exchange of information, training, and joint operations.

As regards passenger travel, the issue of complete visa-free travel for EU citizens to the US has been one of the sticking points in transatlantic relations. The US Visa Waiver Program (VWP) is in place for 23 EU Member States, granting their citizens short-term visa-free travel to the US.⁴ The VWP has recently been modified out of security concerns arising from the foreign fighter threat, a decision that raised serious concerns in the EU. Moreover, on a bilateral level, the US has sent official requests to five EU Member States to start negotiations on ‘pre-clearance agreements’, under which US Customs and Border Protection (CBP) officers deployed at the departure airport in the EU would determine whether passengers and their baggage or goods headed to the US may be admitted into the country. Currently, (non-Schengen area member) Ireland is the only EU Member State that has pre-clearance facilities for passengers bound for the US, and these have been in place since 2009. While the UK reportedly welcomed the US request, other EU Member States such as Sweden and the Netherlands raised concerns, principally related to whether the Schengen rules would allow such facilities, and over fundamental rights.

Moreover, the refugee crisis in the Mediterranean has pushed migration and refugee issues higher up the transatlantic agenda. Cooperation on migration issues continues in the framework of the EU-US Platform on Migration and Refugee issues, launched in 2010. The Platform’s action plan includes priority areas such as return and reintegration, biometrics, resettlement, trafficking in human beings, migration management capacity-building and labour migration. More recently, the possibility of enhancing US political and operational support to the EU was analysed, including EU cooperation with the US military in the Mediterranean.

Cybersecurity and cybercrime

In the area of cybercrime and cybersecurity, EU-US cooperation started in 2010, when the parties also established the EU-US Working Group on Cybersecurity and Cybercrime (WGCC). The EU-US WGCC addresses four main areas: cyber incident management, private-public partnerships, including for critical infrastructure protection, the fight against cybercrime, and raising awareness on cybersecurity. In 2011, the first joint cyber exercise was held (Cyber Atlantic 2011), aimed at improving coordination and more accurately identifying vulnerabilities. In 2014, the EU-US Cyber Dialogue was put in place, expanding cooperation and with the aim of addressing cross-cutting cyber issues, international developments in this field and foreign-policy-related cyber issues.⁵ The EU and US also cooperate in the framework of Europol and Eurojust on fighting cybercrime; a particular area for transatlantic cooperation is the fight against sexual abuse online, including the fight against child sexual exploitation.

EU-US legal agreements

The EU and US have concluded a series of binding agreements, including on arrangements for information sharing, on extradition and mutual legal assistance (MLA), on passenger name records (PNR), on container security, and on sharing financial data for the purpose of the US Terrorist Finance Tracking Programme (TFTP).⁶

Agreements in the field of police and judicial cooperation, and information sharing

Extradition and mutual legal assistance

In 2003, the EU and the US signed two treaties, on extradition and mutual legal assistance (MLA),⁷ which entered into force in 2010. The EU-wide extradition agreement with the US is considered to modernise the existing bilateral extradition agreements between the US and Member States. It streamlines exchange of information and documents, and sets rules for establishing the priority in cases of competing extradition requests. Under Article 13 of the extradition agreement, the US agreed not to impose/execute the death penalty on suspects extradited from the EU.

MLA agreements establish cooperation for the purpose of gathering and exchanging information in judicial investigations, and assistance in obtaining evidence located in another country. This also entails requests by law enforcement authorities to assist each other in cross-border criminal investigations or proceedings. The US-EU MLA agreement covers issues such as identification of bank information (providing US authorities with access to European financial information in criminal investigations), setting up joint investigative teams, video-conferencing, expedited transmission of requests, assistance to administrative authorities, use limitations, confidentiality, and grounds for refusal. The EU-US agreement does not replace the bilateral US MLAs with EU Member States (bilateral agreements are in force with all Member States except Bulgaria and Croatia), but supplements them.

US agreements with Europol and Eurojust

In 2001 and 2002 two US-Europol agreements were concluded which allow for the sharing of strategic and personal information in law enforcement. The negotiation of the agreement on personal information was particularly difficult, due to EU insistence that the agreement reflect EU standards on the protection of rights and rule of law. A US-Eurojust cooperation agreement was concluded in 2006. This was followed in 2007 by an EU-US agreement on the security of classified information, which sets some common standards so as to facilitate the exchange of classified information.

In February 2015, two other agreements were signed between Europol and US Customs, relating to foreign terrorist fighters and illegal immigration, issues now high on the agenda for cooperation. The first agreement associates the US CBP to Europol’s Focal Point Travellers, which is a tool created in 2013 for the collection, analysis and sharing of information related to the recruitment and travel of foreign terrorist fighters. The second agreement (Focal Point Check Point) aims at enhancing transatlantic cooperation against illegal immigration, targeting in particular organised crime groups that facilitate such immigration.

Tracking terrorist financing: the SWIFT/TFTP agreement

In August 2010, the US-EU Agreement on sharing SWIFT banking data (or financial messaging data) for the purpose of the US Treasury Department’s Terrorist Finance Tracking Program (TFTP) entered into force for a period of five years. In August 2015, the TFTP/SWIFT Agreement was automatically renewed for a period of one year.

Under the TFTP agreement, the US Treasury Department submits a reasoned request for specific financial and banking data to the SWIFT company (Society for Worldwide Interbank Financial Telecommunication) located in Belgium. A copy of the request is sent to Europol, which ensures the request conforms with the provisions of the agreement. If validated by Europol, SWIFT is bound to comply with the request and provide the data to the US. Article 9 of the TFTP Agreement obliges the US to share any information obtained in the framework of the TFTP deemed useful for the EU and its Member States in the prevention or investigation of terrorism-related activities. Under its Article 10, the EU Member States, Europol and Eurojust can request the US Treasury Department to search for specific information in the SWIFT data.⁸

Transfer of Passenger Name Records (PNR)

Following 9/11, the US adopted legislation requiring air carriers to give the US DHS access to passengers’ data prior to their flights’ departure, both leaving from and heading to the US. The EU and the US signed an agreement in 2004 to provide a legal basis for the transfer of PNR data from the EU to the US, which was later invalidated by the EU Court of Justice. A new PNR agreement was signed in 2007, but amid concerns about the protection of data and judicial redress for EU citizens in the US, the European Parliament postponed giving its consent to the agreement, eventually endorsing the opening of new negotiations with the US, launched in December 2010. This latest EU-US agreement on the use and transfer of PNR data to the US DHS ‘for the purpose of preventing, detecting, investigating and prosecuting terrorist offences and transnational crime’⁹ entered into force in July 2012 for a period of seven years. In exchange, the agreement provides that the DHS will ensure an appropriate level of data security, and includes provisions on the protection of sensitive data, on retention periods, on transparency and individual access to PNR data, on correction and rectification requests, as well as (administrative) redress for individuals. The Commission considers the agreement to be a useful tool in fighting terrorism and transnational crime, while giving adequate safeguards for EU citizens’ PNR data.

Protection of personal data

Safe Harbour and the new EU-US Privacy Shield agreement

The purpose of the Safe Harbour Framework (2000) was to protect EU citizens’ data if transferred to the US by American companies; it included a self-certification mechanism whereby US companies indicated their compliance with the Framework’s principles on personal data. As a result, such companies were allowed to transfer data from EU Member States to servers based in the US. In October 2015, the Court of Justice of the EU (CJEU) invalidated the Commission’s 2000 decision on the Safe Harbour arrangement which had recognised that the US ensured an adequate level of data protection, in accordance with European data protection legislation. The ECJ thus effectively ruled that the US failed this ‘adequacy test’.¹⁰

The replacement for Safe Harbour – the EU-US Privacy Shield – was agreed on 2 February 2016. The EU-US Privacy Shield will form the new framework for transatlantic data flows and will consist of a Commission decision finding that the new protections, which the US government has promised to put in place, are adequate for preserving the privacy of citizens who provide their data to US companies. The Commission points out that the US has given the EU, for the first time, binding assurances that access by public authorities for national security purposes will be subject to clear limitations, safeguards and oversight mechanisms, while EU citizens will benefit from judicial redress mechanisms in this area. The Commission has published the documents pertaining to the new arrangement and is awaiting the assessment of the Article 29 Data Protection Working Party. In the meantime, data transfers to the US should be based on alternative legal frameworks such as Standard Contractual Clauses and Binding Corporate Rules.

The EU-US ‘Umbrella Agreement’ on data exchanges for law enforcement

The EU-US ‘Umbrella Agreement‘ on data privacy and protection of data exchanged for the purpose of law enforcement was initialled in September 2015 (‘for the purpose of preventing, investigating, detecting or prosecuting criminal offences, including terrorism, in the framework of police cooperation and judicial cooperation in criminal matters’). Its negotiation began in March 2011. A condition for the agreement to be signed and formalised was the enactment by the US of the Judicial Redress Act (JRA), amending the 1974 US Privacy Act in response to EU demands for equal rights of access to civil remedies in the US for EU citizens concerning their personal data. The JRA was passed by the US Congress on 12 February 2016 and signed by the President on 24 February. This new legislation allows the US Department of Justice to designate foreign countries, or regional economic integration organisations, enabling their citizens to bring civil actions under the 1974 Privacy Act against certain US government agencies for the purpose of accessing, amending, or redressing unlawful disclosures of records transferred to the US in the framework of law enforcement. The JRA is also of relevance for the Privacy Shield agreement for data transfers for commercial purposes.

The Umbrella Agreement is intended to provide an overarching framework of rules governing transatlantic data exchange in the context of law enforcement investigations, and set high standards of personal data protection for future agreements in this field. However, the Umbrella Agreement will not provide a legal basis for actual transfers of data, which will still require the conclusion of specific agreements. To conclude the agreement, the Council has to adopt a decision on the basis of a Commission proposal and following the consent of the EP. However, the European Data Protection Supervisor proposed several changes to the text in a preliminary opinion on the Agreement. Furthermore, some Members of the European Parliament and the EP’s Legal Service have raised concerns about the agreement’s compatibility with primary EU law and fundamental rights.

Border controls and transport security

The EU-US air cargo security agreement

In June 2012, the Commission and the US Transportation Security Administration (TSA) signed a mutual recognition agreement of each other’s air cargo security regimes. It is meant to speed up transatlantic shipments and reduce costs for US and European cargo shippers. EU-US cooperation to strengthen border controls and transport security also played an important role in getting other states to agree the 2010 International Civil Aviation Organization declaration on aviation security.

Maritime cargo security

The air cargo security agreement was preceded in May 2012 by the EU-US mutual recognition agreement on maritime cargo security, whereby the EU and US recognise their respective ‘trusted shippers’ programmes – the US Customs-Trade Partnership against Terrorism (C-TPAT) and the EU’s Authorised Economic Operators (AEO) regime – and aimed at speeding up customs procedures for cargo scanning.

Customs cooperation between the EU and US is based on a 1997 agreement and further expanded through a 2004 agreement, which calls, among other things, for the extension to EU ports of the US Container Security Initiative (under which US customs officials, located in foreign ports, help screen maritime cargo containers bound for the US for explosives or weapons of mass destruction). In 2011, a Joint Statement on Supply Chain Security was issued, whereby the EU and US pledged to increase transatlantic cooperation related to customs security. Tensions in this area have emerged however over US legislation that sets a five-year goal, beyond which all containers bound for the US would be scanned for nuclear devices, which the EU finds unrealistic and costly.

An assessment of transatlantic cooperation and remaining challenges

Since 2001, the EU has seen enhancing cooperation with the USA in the JHA area as a key priority, in particular on law enforcement and counter-terrorism. The US has also proactively increased its involvement and supported cooperation with the EU as an actor in its own right in this field. According to reports by the EU Counter-terrorism Coordinator (in 2009 and 2011), there has been ‘no significant counter-terrorism investigation’ in Europe in which US support did not play a crucial role. Moreover, from the US point of view, law enforcement efforts that successfully averted and tracked terrorist plots were the result of enhanced border security, and advanced passenger information and PNR transfers.

In this context, through mutual learning that has influenced the practice of internal security on both sides of the Atlantic, a process of policy convergence has been observed by some experts. Some US initiatives and closer transatlantic cooperation seem to have influenced the EU (and also helped shape an EU interest in the field of counter-terrorism), visible for example in the proposals for an EU-wide agreement on exchanging PNR or the negotiation of such agreements with other third countries; similarly, US officials have recognised the role of the EU in informing some US policies (e.g. in ensuring redress for passengers’ complaints about airport screening). Conversely, other experts have pointed either to the ‘Americanisation’ of European policy or have argued that EU-US JHA cooperation has not been a relationship of equals, but mainly a ‘one-way street’ for providing the US with access to personal data and databases in the EU, without the US sharing its own databases.¹¹

In general, important challenges remain for transatlantic cooperation, all the more complicated by the 2013 revelations of US mass surveillance activities and allegations of data collection in Europe, as well as due to major differences between the EU and US over strategies to counter the terrorist threat. Europeans have been concerned about American departure from the rule of law in its treatment of terrorist suspects, and pointed to major fundamental rights questions – in particular issues related to data protection and data privacy, posed by the operation of the information-sharing agreements concluded between the EU and the US (both the TFTP/SWIFT and PNR agreements have raised legal problems, including fair procedures, access to justice, fundamental rights, privacy and proportionality), as well as by US practices of extraordinary rendition and secret detention facilities overseas, and by US detainee policies.

Data privacy still constitutes the main bone of contention in the transatlantic relationship, due to different and seemingly irreconcilable legal systems and traditions in the EU and USA, but also stemming from their differing geostrategic positions. On this issue, some specialists argue that, despite having criticised the US for privileging security measures over adequate data privacy and data protection standards, the EU finds itself, paradoxically, in the process of adopting the same security-centred approach over privacy rights. For them, the EU would move closer to the US and would ‘shift … emphasis away from data privacy and toward protective anti-terrorist surveillance programmes’. Conversely, some American observers deplore the insistence of Europeans on protecting privacy, and underline that the intelligence gathered by the USA, using huge intelligence resources that Europeans could not expect to match, also defends Europeans. Data protection issues notwithstanding (including US complaints of cyber-cooperation with Europol being severely hindered by data protection concerns), at least as regards the transatlantic cyber-partnership, cooperation seems to be based on solid norms and converging objectives (fighting cybercrime, limiting malicious software and securing critical infrastructure, while promoting international standards for cyberspace).

In all areas, from counter-terrorism to border security and cybersecurity, the EU and the US seem still to be struggling to find the appropriate balance between strengthening security and facilitating legitimate transatlantic mobility and commerce.

Finally, a further difficulty stems from the EU institutional setting, with most actions in the field of the judiciary and police pertaining to the national level. In particular, most transatlantic counter-terrorism cooperation is assessed as still taking place at bilateral level, between the USA and European national authorities; moreover, US critics doubt the usefulness of cooperating with EU bodies given these good bilateral ties.

Evaluation of EU-US information-sharing agreements

TFTP/SWIFT: According to a report from the EU’s Counter-Terrorism Coordinator (November 2015), the EU-US TFTP has generated more than 14 500 intelligence leads since it came into force in 2010. In 2015, 7 514 intelligence leads of relevance were generated, 2 765 of which specifically related to foreign terrorist fighters. Four evaluations of the agreement have taken place and another was scheduled for late 2015. The reports from 2013 and 2014 underlined the value of the TFTP data, including data retained over several years, for counter-terrorism investigations both in the US and the EU. The reports give concrete examples of investigations using TFTP data, including the 2013 Boston Marathon bombings, threats to the 2012 London Olympics, and the 2011 attacks in Norway by Anders Breivik. The TFTP agreement is considered an important tool, providing timely and reliable information on activities associated with suspected terrorist acts, although other experts insist that more information is necessary in order to assess the effectiveness of the TFTP. The joint reviews conclude that Europol and EU Member States are increasingly aware of profiting from TFTP data through the reciprocity clauses of the agreement. A September 2015 assessment of Europol’s implementation of the TFTP also noted the increase in information received since December 2012 and the growing number of requests related to foreign fighters. While the Commission welcomed in 2014 more transparency from US authorities in sharing information, the Treasury Department underlined the need for more feedback from EU and national authorities after the US provides TFTP data.

EU-US PNR: A first joint review of the agreement (Commission and US DHS) was carried out in July 2013 and the next joint review was to take place in July 2015. The first review concluded that the PNR agreement served the purpose of supporting the fight against terrorism and other transnational crimes in various ways. However, some improvements were still needed on the DHS side, including, to ‘ensure reciprocity and pro-actively share individual PNRs and analytical information flowing from PNR data with EU Member States and, where appropriate, with Europol and Eurojust’. Another review performed by the DHS in June 2015 mentions that almost all the recommendations of the 2013 joint review have been implemented, and underlines that between October 2014 and February 2015, the DHS liaison officer submitted 122 names of suspected terrorists to Europol.

EU-US MLA: The MLA is being reviewed after five years; the EU proposed to finalise the joint review by June 2016. Both sides agree that the MLA works well, similarly to the EU-US extradition agreement, but several improvements could be made. On the US side, concerns relate to being overburdened and to the necessity of sharing information more quickly; to tackle this, the US pledged to increase resources and staff in the MLA department. On the EU side, the main concerns related to delays in execution, as well as the necessity to improve electronic means of communication in the MLA context and access to electronic evidence.

European Parliament

Since the entry into force of the Lisbon Treaty in 2009, the EP acts on a par with the Council in legislating in the fields of police and criminal cooperation. The Lisbon Treaty also increased the EP’s oversight of Europol (the EP together with the Council decides on regulations setting out Europol’s legal framework, while parliamentary scrutiny of Europol’s activities should be done by the EP together with national parliaments) and Eurojust. Importantly, the EP has to consent to international agreements concluded by the EU with third countries in this policy area. Parliament’s increasing oversight powers became evident when it voted down the TFTP/SWIFT agreement in February 2010, triggering new negotiations to take into account the EP’s concerns on data privacy and recommendations.¹² Also in 2010, the EP postponed its vote on the 2007 EU-US PNR agreement until the Commission issued its global PNR strategy, after which the EP endorsed the opening of new negotiations with the US. The EP insisted however on a necessary and proportional exchange of data, not using PNR for data mining or profiling, and also expressed concerns about the period for retention of the data.

In light of the revelations of the US large-scale surveillance programmes, the EP adopted a resolution in March 2014 calling for the suspension of all data transfer agreements with the US (TFTP, PNR), the suspension of the Commission’s Safe Harbour Decision, as well as an in-depth assessment of the EU-US MLA and extradition agreements, and requesting the resumption of negotiations on the Umbrella Agreement, which should provide ‘effective and enforceable administrative and judicial remedies for all EU citizens in the US without any discrimination’ and a high level of protection of personal data, as a precondition for restoring trust in the transatlantic partnership. The EP also linked its consent to the Transatlantic Trade and Investment Partnership agreement to ending US mass surveillance activities and to adequate data privacy rights for EU citizens. In October 2015, the EP adopted a follow-up resolution reiterating its call for the suspension of the TFTP agreement and urging the Commission to assess the legal implications of the Court of Justice ruling of 6 October 2015 in the Schrems case vis-à-vis any agreements with third countries allowing for the transfer of personal data, including the TFTP Agreement, all PNR agreements and the EU-US Umbrella Agreement.

Main references

U.S.-EU Cooperation against Terrorism, Archick K., Congressional Research Service, RS22030, 2 March 2016.

Endnotes

1.Historically, the US maintained important bilateral relations with European states on law enforcement and followed with interest the beginning of cooperation on criminal matters among European states with the purpose of fighting organised crime, drug trafficking and terrorism – e.g. the 1976 Trevi Group, which included working parties on terrorism and internal security. By the end of the 1980s, criminal law enforcement issues figured regularly on the agenda of meetings between the US, some EU Member States and the Commission, with the US recognising the added value of the progressive ‘Europeanisation’ of measures in this field. Counter-terrorism issues have been part of the transatlantic dialogue since 1986. See ‘External relations of the EU with the US in counter-terrorism’ in The Evolving EU Counter-Terrorism Framework, O’Neill M., 2012, pp. 164-188.
²   The EU and USA also cooperate within multilateral frameworks, such as the Global Counterterrorism Forum (GCTF), where they promote international cooperation on counter-terrorism and countering violent extremism, as well as offer assistance to third countries for capacity building in the justice and rule of law areas.
³   See also ‘Foreign fighters’ – Member States’ responses and EU action in an international context, Bakowski P., Puccio L., EPRS Briefing, March 2016.
⁴   Bulgaria, Croatia, Cyprus, Poland and Romania are the five EU Member States not yet included in the US VWP.
⁵   ‘La coopération transatlantique en matière de cybersécurité’, Joubert V., in Vers un partenariat transatlantique de l’Union européenne, Auvret-Finck, J. (Ed.), Larcier, 2015, pp. 271-288.
⁶   U.S.-EU Cooperation against Terrorism, Archick K., Congressional Research Service, RS22030, 1 December 2014.
⁷   Handbook on the practical application of the EU-U.S. Mutual Legal Assistance and Extradition Agreements, Council of the EU, 8024/11, March 2011.
⁸   There are still calls for the establishment of a European TFTP programme, which the Commission had assessed in 2013 as very costly and not bringing significant added value to the current situation.
⁹   The PNR agreement is restricted to those transnational crimes punishable by a sentence of imprisonment of three years or more – as demanded by the European Parliament.
¹⁰   Court of Justice ruling of 6 October 2015 in the Schrems case (C-362/14). Essentially, the Court ruled that: i) the generalised transfer of data under the Safe Harbour scheme without determining the limitation of access of US public authorities to the data was ‘compromising the essence of the fundamental right to respect for private life’;
and ii) the lack of access to legal remedies for individuals concerning their personal data was in breach of their fundamental right to effective judicial protection. See also The CJEU’s Schrems ruling on the Safe Harbour Decision, Monteleone S., Puccio L., EPRS, October 2015.
11 Experts also point to US demands for access to criminal records across the EU, which they deem controversial.
12 Parliamentary oversight of counter-terrorism policies’, Oikarinen J., in Counter-terrorism: International law and practice, Salinas de Frías A. M., Samuel K., White N.D. (Eds.), Oxford, 2012, pp. 936-964.

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