Category: 9. Internal security -police cooperation

The EU’s new (internal) security agenda

ORIGINAL PUBLISHED ON STATEWATCH

by Chris Jones, May 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further information

 

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

By Isabella MERCONE (FREE Group trainee)

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

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

Smuggling an trafficking look similar but are legally different..

One can then guess if by proposing a bold action such as the destruction of smugglers boats, the European Union is not taking the wrong direction by using military means without a clear legal basis, outside its territory, when the issue should be more framed by criminal law measures be they linked to smugglers or to traffickers. Under this perspective it is worth recalling that, according to international law [4],
– ‘human smuggling’ is recognized as ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’, while
– ‘human trafficking’ is ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’[5]

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

An outdated EU legal framework for smuggling

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

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

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

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

An issue for the EU Commission Migration agenda…

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

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

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

…or for the UN Security Council ?

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

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

Further Reading :

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

The Surveillance Society (1) by Emilio Mordini

Original published HERE

By Emilio MORDINI

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

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

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

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

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

FACT-CHECKING NIGEL FARAGE: WILL THE EU’S ASYLUM POLICIES ADMIT HALF A MILLION TERRORISTS?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party, argued that the EU’s response to the migrant deaths crisis ran the risk of admitting half a million terrorists on to EU soil. He based this claim on the threat of the ‘Islamic State’ (Daesh) terrorists to send such killers to the EU via means of smuggling routes, and demanded that David Cameron veto the EU plans.

Do these claims make sense? Not in the slightest. First of all, the EU policy, as I discussed last week, is essentially to reaffirm the status quo. The current limited maritime surveillance missions will be expanded, although it is not clear if they will amount to fully-fledged rescue missions. This probably means that more people will reach the EU, but this will only be for the reason that fewer of them will drown en route. Once in the EU, they will be able to make claims for asylum – but that is no different to the current law. The EU’s plan does not involve any changes to EU asylum legislation; it simply calls on Member States to apply those laws. The EU did commit to some form of direct resettlement of refugees from third countries – but EU leaders could not even agree on the tiny number of 5,000 refugees to be settled next year.

Farage would prefer a policy of returning people to the countries they left. In fact, asylum-seekers can already be returned to their countries of origin or transit, if it is clear when examining their application that those countries are safe. But in accordance with the UN (Geneva) Refugee Convention – which UKIP purports to support – they cannot be returned to an unsafe country. Libya, for instance, is clearly unsafe: there are widespread whippings, beatings, electric shocks and hangings of migrants. In any event, asylum-seekers who prove to be terrorists must be denied refugee status or other forms of protection status, as the CJEU has confirmed.

Farage demands that David Cameron veto the EU’s plans, but that simply isn’t possible, because the UK has an opt-out from EU asylum and immigration law. We can choose not to participate, and indeed the UK has already chosen not to participate in any of the second phase EU asylum measures, except for those which transfer asylum-seekers from the UK to other Member States. We can choose not to participate in any future measures too – although as noted already, the EU is not even planning any new asylum laws in response to the deaths. Since the UK has an opt-out, it does not have a veto. But in fact, no Member State has a veto on EU asylum policy. Most EU immigration and asylum law has in fact been subject to qualified majority voting since 2005. (Laws on legal migration were subject to unanimous voting until 2009; but the EU’s plan does not address legal migration issues).

As regards border control operations in particular, the UK doesn’t participate fully in the EU’s border control agency, Frontex. In fact, according to the EU Court of Justice, legally we can’t participate in Frontex, since we don’t participate in the full Schengen system of abolishing internal border controls. Instead we have an informal arrangement, for instance supplying some hardware to assist with the expanded surveillance operations. But even that sort of informal arrangement is under challenge in a case pending before the CJEU.

In some ways, Farage’s own policy runs its own risks. He has argued that Christians in particular should be admitted as refugees into the EU. As I have pointed out, this again violates the Geneva Convention that UKIP purport to support, since that Convention requires non-discriminatory application on grounds of religion, and it would also be unfeasible to distinguish between Christians and Muslims during rescue at sea. But if Christians are being resettled directly from areas afflicted by Daesh, the UKIP policy would provide the perfect opportunity for ISIS fighters to pretend to be Christian as a way to ensure entry into the EU.

As an assessment of terrorist methodology, Farage’s claims are also suspect. The bulk of Daesh atrocities have not been carried out in the EU, but in Syria and Iraq, as well as by affiliated groups in Libya and Nigeria. Most of the people who have been linked to Daesh in Europe have been EU citizens who travelled to parts of the Middle East to participate in atrocities. Any migrants who were rescued from boats or who were resettled directly from conflict areas would presumably be disarmed of any weapons they were carrying en route. Of course, they might obtain weapons once they reached the EU; but since Farage is an outspoken critic of gun control, he is part of the problem, not of the solution, to that issue. As for the figure of half a million Daesh fighters coming to the EU, that’s 20 or 30 times the CIA’s estimate of the total number of all Daesh fighters.

Finally, Farage argues that the EU has cynically used the migrant deaths crisis to develop a comprehensive immigration and asylum policy. If only it had: in fact, the EU’s response is largely marginal and ineffectual. Indeed, Farage is throwing some huge stones inside this glass house. It is Farage who is trying to ‘weaponise’ the tragic deaths of hundreds of people, taking this opportunity to make an inaccurate and incoherent rant in the midst of an election campaign.

THE CJEU WASHES ITS HANDS OF MEMBER STATES’ FINGERPRINT RETENTION (JOINED CASES C-446/12 – 449/12 WILLEMS)

ORIGINAL PUBLISHED ON EU LAW BLOG

by

When is the Charter of Fundamental Rights of the EU applicable to a Member State measure? In C-446/12 – 449/12 Willems the CJEU held that a Member State which stores and uses fingerprint data, originally collected in compliance with Regulation No 2252/2004, but which the Member State then uses for purposes other than those stipulated in the Regulation, is not acting within the scope of EU law, and therefore is not bound by the Charter. This case appears to indicate a retreat by the Court from the expansive interpretation of the scope of application of the Charter which it had previously laid down in C-617/10 Fransson.

Facts and judgment

Council Regulation No 2252/2004/EC requires Member States to collect and store biometric data, including fingerprints, in the storage medium of passports and other travel documents, and require that such data be used for verifying the authenticity of the document or the identity of the holder. Spain introduced measures requiring the collection and retention of the fingerprint data for use in connection with travel documents. However, those national measures also provide that such data can be kept in a central register, and used for other purposes (such as national security, prevention of crime and identification of disaster victims). The applicants made passport applications, but refused to provide the fingerprint data. They argued, inter alia, that the storage and further use of those data breached their fundamental rights under Article 7 and 8 of the Charter of Fundamental Rights of the EU. The national court referred two questions for preliminary ruling.

The first question concerned the applicability of the Regulation to national identity cards. The Court held that the Regulation did not apply to such cards. The second question is the one I want to focus on: Does Article 4(3) of the Regulation, read together with Articles 6 and 7 of Directive 95/46/EC  and Articles 7 and 8 of the Charter, require Member States to guarantee that the biometric data collected and stored pursuant to that Regulation will not be collected, processed and used for purposes other than the issue of passports or other travel documents?

The ECJ had already held (in C-291/12 Schwarz) that the collection of those data for the purposes stipulated in the regulation (to verify the authenticity of the passport or the identity of the holder) was compatible with the Charter. The question was whether further processing of those data by the Member State would similarly be compatible.

The Court noted that the Regulation did not provide a legal basis for such further processing – if a Member State were to retain those data for other purposes, it would need to do so in exercise of its own competence (para 47). On the other hand, the Regulation did not require a Member State not to use it for other purposes. From these two observations the Court concluded that the Regulation was not applicable. The Court then cited its famous passage in C-617/10 Franssonwhere it had held that the applicability of EU law entails the applicability of the Charter. As the Regulation was not applicable, the Charter was not applicable either.

The Court then turned to Directive 95/46/EC  (the Data Protection Directive). It merely observed that the referring court requested the interpretation of the Regulation “and only that Regulation”. As the Regulation was not applicable, there was no need to examine whether the Data Protection Directive may affect the national measures.

Comment

I will focus on the question of applicability of the Charter (See Steve Peers comment on the “appalling” reasoning of the Court in respect of the Data Protection Directive). This judgment appears to signal a retreat by the Court from the expansive understanding of the scope of application which was laid down inFransson. It is true that in that case the Court had held that when EU law is not applicable, the Charter is not applicable. But when applying that test to the facts, the Court observed that the national (Swedish) measure was connected (in part) to infringements of the VAT Directive, and therefore was designed to implement an obligation imposed on the Member States by EU law “to impose effective penalties for conduct prejudicial to the financial interests of the European Union”. So inFransson the Court held that national measures which were connected in part to a specific obligation imposed by EU law on the Member State fell within the scope of application of EU law, and therefore of the Charter.

In the present case, the national measures are designed (in part) to implement the obligation imposed on the Member States by the Regulation, to collect and retain fingerprint data. Applying the reasoning in Fransson it would seem to follow that such measures would fall within the scope of EU law – after all, the measures relate to the retention of fingerprints, and the reason the fingerprints need to be retained stems from a specific obligation imposed, by EU law, on Member States: the obligation to collect and store biometric data with a view to issuing passports and travel data, set out in Article 4(3) of the Regulation.

Of course, this case can be distinguished from Fransson. In Fransson the Member State’s measure could be seen as not only stemming from the specific obligation imposed by EU law, but also as furthering the EU purpose of preventing conduct prejudicial to its financial interests. In contrast, in the present case the Member State’s measure is in furtherance of a member state’s purposes, and not an EU purpose.

But such a distinction would seem to entail a very strict approach to what obligations are imposed by EU law. Because the obligation which the Regulation imposes is not just to collect and store date, but also (under Article 4(3) of the Regulation) to ensure that the data are only used to for the specified purposes set out in the Regulation. That obligation was subsequently modified by Recital 5 inRegulation 444/2009, which states that Regulation 2252/2004 is “without prejudice to any other use or storage of these data in accordance with national legislation of Member States.” But is such a Recital sufficient to place the measures concerning those data outside the scope of EU law, or does it merely confer a discretion on states to adopt such measures, provided that they are compatible with EU law? Unfortunately, the reasoning in this judgment does not provide much guidance.

Conclusion

The approach of the Court in Fransson did not meet universal approval, and the judgement of the German Federal Constitutional Court in the Counter-Terrorism Database case may be read as a warning shot across the CJEU’s bows to make sure that the Charter is not applied to Member States’ measures in a way that “question[s] the identity of the [national] constitutional order”.  And by emphasising the autonomy of EU fundamental rights in its recent Opinion 2/13 on the accession to the ECHR, the Court certainly raised the stakes involved in demanding Member State compliance with the Charter. So this case may indicate a desire to ensure that the EU fundamental rights standard is reserved for those Member State measures where it matters most that a EU standard is applied – those matters where the primacy, unity and effectiveness of EU law is at stake.

In effect, this case can be read as tacit acceptance of AG Cruz Villalón in hisOpinion in Fransson, who proposed that the oversight by the Court of the exercise of public authority by the Member States be limited to those cases where there was “a specific interest of the Union in ensuring that that exercise of public authority accords with the interpretation of the fundamental rights by the Union”. However, that Opinion was a well reasoned legal argument. This judgment leaves many questions unanswered, and makes it very difficult to predict when a national measure will fall within the scope of EU law.

Furthermore, this approach sits uneasily with the self-understanding of the EU as a Union based on the rule of law inasmuch as neither Member States nor its institutions can avoid review of the conformity of their acts with fundamental rights (C-402/05 P and C-415/05 P Kadi). Through this Regulation, the EU requires the Member States to collect and store sensitive personal data of all EU citizens who wish to travel; but where the Member States go on to use those data in ways that may breach the fundamental rights of those EU citizens, the Court washes its hands of the matter.

 

 

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

OPINION  (ORIGINAL PUBLISHED HERE)

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

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

Un terrorisme devenu global

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

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

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

La montée en puissance de la reconnaissance des victimes

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

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

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

By Dalila DELORENZI (Free Group trainee)

1.Foreword

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

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

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

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

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

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

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

DON’T ROCK THE BOAT: EU LEADERS DO AS LITTLE AS POSSIBLE TO ADDRESS THE MIGRANT CRISIS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS  Thursday, 23 April 2015

by Steve Peers

Yesterday the EU leaders, in the European Council, adopted a policy for addressing the recent crisis of large-scale migrant death tolls crossing the Mediterranean. It builds upon the recent 10-point plan adopted by ministers (discussed here), but builds upon it in some respects. There were also some interesting last-minute changes to the earlier draft of the text (all of which are shown in the annex below), indicating leaders’ real priorities.

Detailed comments

At first sight, the leaders’ statement shows more compassion than the 10-point plan, referring to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent more people from dying at sea’. To this end, there is a specific commitment to triple the funds for ‘search and rescue’ as regards existing EU operations. However, this is only ‘within the mandate of Frontex’ – and the head of the EU border agency has stated that this agency does not really have a search and rescue role.

It should be noted that since these operations are coordinated by Frontex, detailed rules of EU law will apply (discussed here) will apply. These rules do allow, in some cases, for returns of migrants directly from their rescue to non-EU countries – as long as those countries are safe. It is unlikely that in the current situation, Libya would qualify as safe.

The destruction of traffickers’ vessels ‘before they are used by traffickers’ seems to suggest some Minority Report style precognisance of the future use of the boats, considering that traffickers do not paint logos on the side of their boats like ferries or shipping companies. This is also qualified by a reference to compliance with international law. It may be questioned whether this action will legally be a foreign policy operation (as the leaders assume), given the approach to EU law taken in a recent CJEU opinion concerning the EU’s anti-pirates operation (discussed here).

As compared to the 10-point plan, there is a reference to Interception of communications, and a very brief reference to the root causes of the problem (conflict in countries of origin, as well as Libya). The EU leaders took out a reference to stopping migrants making it to the Mediterranean shores, but it’s obvious that this is the main intention of stepping up cooperation with sub-Saharan countries.

There’s an added stress on readmission treaties, including with countries of transit; this refers implicitly to EU readmission treaties with North African states (not Libya) currently under negotiation. There are also two added references to the right to asylum and EU asylum law, confirming that the EU leaders do not intend to simply return migrants without considering their claims. Some press reports had erroneously suggested an intention to return many thousands of migrants without considering claims, but if migrants make it to EU waters or land, it would be illegal to return them without examining their claims under EU law. Migrants can be returned to countries of origin or transit if their asylum claims are unfounded, as long as those countries are safe. Again, returning migrants to Libya would, under current circumstances, breach EU and human rights law as long as that country does not appear safe.

As compared to the 10-point plan, it appears that the intention is not to fingerprint all migrants, but only those applying for asylum; this simply re-iterates long-standing EU law. More generally, the plan says little about safe passage, removing the original (and puny) target number of 5,000 resettlement places, and not referring to other forms of safe passage instead. (While it would be difficult to issue humanitarian visas in Libya, it would be possible to offer this option – discussed further here – in other States). Equally, there is little practical solidarity with frontline states; other Member States offer cash and help with processing and return, but weakened any significant commitment to relocate people from those frontline States.

There is an immediate commitment to issue a ‘roadmap’ next week, pre-empting the Commission’s agenda-setting role (its strategy paper is due in May). However, the role of the European Parliament may still prove significant, since it must approve any funding decisions or changes in legislation.

Conclusions

Overall, the new commitment to search and rescue is welcome, although it is qualified in light of Frontex’s limited powers.  The desire to address root causes is good but seems half-hearted, and this is easier said than done. A more ambitious strategy regarding the processing of asylum claims in non-EU transit states is probably necessary in the medium term, but neither the EU leaders nor asylum NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’ boats is subject to legal and practical constraints, and will be almost literally a drop in the ocean. The summit result is frankly pathetic as regards safe passage of migrants, ensuring that they avoid the risk of the crossing altogether, and it is marginal as regards assistance to frontline Member States.

On the whole, it seems that the leaders want to do as little as possible to change the current approach to dealing with the crisis. Similar to their method of dealing with the euro crisis, this looks like a short-term patch-up that offers less than first appears, which will probably have to be revisited soon.

THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS Wednesday, 22 April 2015

by Steve Peers

On Monday, EU foreign and interior ministers adopted a ten-point plan in response to the recent huge death toll of migrants crossing the Mediterranean. There will be a summit on Thursday to examine the issue further, and then an EU Commission strategy proposed on May 13th. But for now, I want to examine the initial plan.

Overall, this is a very disappointing document. It’s not only vague on crucial details but more importantly focusses less on the situation of the migrants (addressing the root causes which cause them to move, and protection from drowning and persecution) and more on border control and repression. One point in the plan constitutes a rather crass example of ‘policy laundering’ – attempting to use a crisis to shove through an essentially unrelated policy objective.

Let’s look at the ten points of the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians only’ approach which some have suggested. For alternative solutions to the problem, see the proposals of the UN Special Rapporteur on Migrants, the EU’s Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase. Continue reading “THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?”