Category: 9. Internal security -police cooperation

CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE

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

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

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

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

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

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

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

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

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

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

The European Arrest Warrant and the EU area of justice

The European Arrest Warrant has come under much discussion in the UK media following the arrest of Julien Assange, the founder of Wikileaks. Main arguments against the EAW surround the topic of the quantity of EAW’s being issued to the UK in comparison to the number received by other Members States and the apparent lack of judicial authority to decide on the proportionality of the crime.

The European Arrest Warrant was established after the “Tampere European Council of 15-16 October 1999 called on Member States to make the principle of mutual recognition the cornerstone of a true European law-enforcement area.” The EAW replaced the extradition system that was in place and required that “each national judicial authority” recognised requests for the “surrender of a person made by the judicial authority of another Member State” with minimum formalities.

However, Member States are still able to form bilateral or multilateral agreements with other Member States in order to simply or facilitate the process further.

There are also judicial safeguards to EAW. Each Member State may refuse to execute a European arrest warrant if:

• final judgment has already been passed by a Member State upon the requested person in respect of the same offence (ne bis in idem principle);

• the offence is covered by an amnesty in the executing Member State;

• the person concerned may not be held criminally responsible by the executing State owing to his/her age.

In relation to the current case of Julian Assange, refusal to extradite him could take place on the grounds that the motive for the EAW is purely a political one.

The UK has refused extradition in the past on these grounds. These examples are not exhaustive of the qualifying grounds to refuse extradition under an EAW, however, in each case the grounds for refusal have to be given.

The European Arrest Warrant allows for the enhanced ability to pursue justice in the European Union. The EU has progressively decreased its internal borders and facilitated the free movement of European citizens. However it is simultaneously easier for criminals to operate across the Member States . Therefore, in order to give the criminal and law agencies sufficient power, their actions must be coordinated across the EU.

In order to better tackle this challenge of international crime, the EU is progressing toward a single area of justice.

The Amsterdam Treaty officially states that the creation of a common area of freedom, security and justice is an aim of the EU. EU Member States have agreed to “approximate the definition of offences and the level of sanctions for certain type of offences” and ensure “mutual recognition of decisions taken by national judges” . These actions are enabling the EU to be perceived as a specific partner on judicial cooperation in the international scene.

“While developing its activities in those directions, the EU has carefully insisted on ensuring a high protection of individual’s rights which characterise highly demanding democracies. ”

The European Arrest Warrant, a step in the direction of an EU area of justice, has recently been discussed widely in the UK media and at least citizens are becoming aware of the topic. However there are severe, basic misunderstandings in the reports. What is needed now is journalism that is more informed. Criticism and accountability is needed, however, real accountability can only be achieved when the citizens are given the right information to truly understand the EAW. The information is already there; it needs to be coherently and accurately communicated.

Action Plan on the Stockholm Programme released by Statewatch

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

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

http://www.statewatch.org/


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

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

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

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

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

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

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

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

The new draft negotiating mandate

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

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

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

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

3) to the rectification, and

4) as appropriate erasure thereof.

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

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

Proportionality

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

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

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

Data storage period

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

Access, rectification, compensation and redress outside the EU

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

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

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

No evidence on the effectiveness

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

Procedural concerns

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

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

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

L.B.

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

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

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

Towards a European regime of sea border rescue operations?

How is it possible to avoid conflict of competences between Member States concerning the surveillance of maritime borders in the south of the Mediterranean, as well as possible conflict concerning the responsibility to rescue vessels in danger or to reject illegal immigrants at the border?

These questions have been raised several times in the past by both the press and assiduous public opinion. Starting from the case of Cap Anamur, debates spread at the European Union level, where the control of the external borders of the Schengen area is now regulated by the Schengen Borders Code (which entered into force on 13 October 2006, CE Regulation  N. 562/2006 of the EP and the Council).

In fact the Schengen Code does not include a comprehensive regulation on sea borders control although it foresees, respectively in articles 12 and 13, surveillance modalities and rejection by costal guards. (*)

Events related to marine assistance and rescue are not regulated and therefore Member States refer to international conventions (and related protocols) such as the Montego Bay United Nations Convention on the Law of the Sea of 10 December 1982 – UCLOS- which requires the master of a ship to render assistance to any person found at sea in danger or distress under article 10 of the 1989 Convention on salvage, or, the International Convention for the Safety of Life at Sea of 1974 (SOLAS), – and more importantly  the International Convention on Maritime Search and Rescue of1979 –SAR-.

The main problems arises at the particle level. Thought the regulation may be consistent, the implementation varies widely between Member States. As the European Commission pointed out in its Study on the international law instruments in relation to illegal immigration by sea in 2007, “There is indeed a duty to respect fundamental rights when implementing the Schengen Code, but it is not stated explicitly in relation to surveillance operations. As regards the principle of non-refoulement, there are differences in the Member States’ interpretations of this principle of international law, with some Member States, for example, contesting its applicability in international waters.”

“Another difference between Member States relates to how they identify a situation requiring assistance: for some Member States the vessel must be on the point of sinking; for others it is sufficient for the vessel to be unseaworthy; some Member States require the people on board to request assistance, while others do not. The proposal is based on the SAR system and stipulates that as soon as there is any question about the safety of a vessel or a person the SAR authorities must be contacted and given all the information they need to determine whether or not this is an SAR situation According to the Sar Convention each search and rescue area have been delimited for each of  the country concerned search and rescue regions for which they are responsible and these regions do not necessarily correspond to the existing maritime borders.”

The SAR Convention also imposes a precise obligation to rescue and assist persons and ships in distress at sea regardless of nationality, status or circumstances in which the persons are found. The obligations relating to search and rescue include the transport to a safe place.

According to the Commission “Deciding where the people rescued should be taken is a difficult question and is seen as one of the weaknesses of the SAR system. The 2004 amendments require all states to cooperate in resolving SAR situations; the state responsible for the SAR region must, with their cooperation, decide where those rescued will be taken. One Member State did not accept these amendments. A particular point of contention was where those rescued should be disembarked if the state responsible for the SAR region failed to fulfil its obligations in this respect. Some Member States are reluctant to take part in operations because they fear that they will end up having to take those rescued to their own country.”

Such difficulties often become emergencies for the persons involved in the rescue operations. Therefore, last November the Commission suggested to integrate the Schengen Code with the main international norms applicable in the field of marine search and rescue and the disembarking of individuals in safe harbours in order to guarantee fair and equal treatment at the European level and clear signing rules especially when surveillance operations take place under the coordination of the Frontex Agency.

Initially, the proposal did not obtain the support of national experts; however it may go through after the abstention of Italy and Malta.

If the Council adopts it, it will then be up to the European Parliament to intervene. In this case the legislative assembly will have time up to the 7 April to raise its objections concerning the procedure followed by the European Commission to integrate these provisions within the Schengen Code.

The European Commission defined these provisions as purely implementing measures (which seems a rather brave interpretation given the nature of their content), allowing therefore for their quicker adoption than if they were considered as measures having a fundamental impact in the Code. Within a few weeks it will be possible to know what will be the outcome of this, nonetheless, good initiative of the Commission.
EDC.

(*)From the SCHENGEN CODE
Article 12

Border surveillance

1. The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally.

2. The border guards shall use stationary or mobile units to carry out border surveillance. That surveillance shall be carried out in such a way as to prevent and discourage persons from circumventing the checks at border crossing points.

3. Surveillance between border crossing points shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats. It shall involve frequent and sudden changes to surveillance periods, so that unauthorised border crossings are always at risk of being detected.

4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to apprehend individuals crossing the border illegally. Surveillance may also be carried out by technical means, including electronic means.

5. Additional rules governing surveillance may be adopted in accordance with the procedure referred to in Article 33(2). (Paragraph modified by the (CE) Regulation N. 296/2008 of the European Parliament and the Council of 11 March  2008)

Article 13

Refusal of entry

1. A third-country national who does not fulfil all the entry conditions laid down in Article 5(1) and does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas.

2. Entry may only be refused by a substantiated decision stating the precise reasons for the refusal. The decision shall be taken by an authority empowered by national law. It shall take effect immediately.

The substantiated decision stating the precise reasons for the refusal shall be given by means of a standard form, as set out in Annex V, Part B, filled in by the authority empowered by national law to refuse entry. The completed standard form shall be handed to the third-country national concerned, who shall acknowledge receipt of the decision to refuse entry by means of that form.

3. Persons refused entry shall have the right to appeal. Appeals shall be conducted in accordance with national law. A written indication of contact points able to provide information on representatives competent to act on behalf of the third-country national in accordance with national law shall also be given to the third-country national.

Lodging such an appeal shall not have suspensive effect on a decision to refuse entry.

Without prejudice to any compensation granted in accordance with national law, the third-country national concerned shall, where the appeal concludes that the decision to refuse entry was ill-founded, be entitled to correction of the cancelled entry stamp, and any other cancellations or additions which have been made, by the Member State which refused entry.

4. The border guards shall ensure that a third-country national refused entry does not enter the territory of the Member State concerned.

5. Member States shall collect statistics on the number of persons refused entry, the grounds for refusal, the nationality of the persons refused and the type of border (land, air or sea) at which they were refused entry. Member States shall transmit those statistics once a year to the Commission. The Commission shall publish every two years a compilation of the statistics provided by the Member States.

6. Detailed rules governing refusal of entry are given in Part A of Annex V.

The EU-USA Provisional Agreement on Interbank Financial data access (SWIFT) under European Parliament scrutiny

In the next few weeks the European Parliament will receive  several international agreements in the field of police and judicial cooperation negotiated or signed -albeit not yet ratified by the European Council- before the entry into force of the Lisbon Treaty. 

Among these, special attentions deserve the two agreements signed with the United States concerning access to personal data to fight against terrorism.

The first one concerns personal data managed by airline companies when they conclude a transport contract which has as a destination or point of transition the United States (EU-USA Agreement on access to Passenger Name Record- PNR).

The second one, recently published in the Official Journal, concerns the access to personal and financial data exchanged via interbanking messages and processed worldwide, in almost their totality, by a specific society called SWIFT .

Their access is regulated by the Terrorist Finance Tracking Program (TFTP) on the basis of which the USA Treasury Department may request via an administrative mandate (“subpoena”) to access personal and financial data to prevent and fight terrorism.

The advantage of interbanking messages relies on their fast and easy accessibility compared to financial information, whose access is regulated by the prevention programmes for combating Money Laundering and Terrorist Financing. In fact, on the basis of these measures applied worldwide, it is a bank’s responsibility to signal suspicious transactions to the National Financial Intelligence Unit (FIU) which in turn transmits the information to the FIU of the countries involved in terrorist investigations.[1]  

On the contrary TFTP access is direct, avoiding delays, risks of incomprehension and non-cooperative banks around the globe.

Even if available data are limited (such as clients generalities and amounts of transferred money) they become  essential once they are cross-checked with information coming from other sources related to judicial, police and intelligence investigations.

This is obviously an extraordinary instrument also for the USA. This authorisation is based on exceptional powers granted to the President of the United States on a temporary basis by the  Emergency Economic Powers Act (50 USC, sections 1701-1706). The President immediately used them after the 9/11 attacks and since then the Congress has renewed its authorisation every year.[2]

The TFTP programme remained secret up to 2006 when the USA press[3] published a series of articles and the Society SWIFT released a few statements after obtaining more restrictive measures to the access of data by the USA Treasury Department. 

This took place despite the fact that the TFTP is exceptionally not covered by the Privacy ACT of the United States and neither by the general norms laid down to protect privacy in financial transitions.

The debate triggered at the European Union level resulted in a series of hearings and resolutions of the European Parliament[4], it  set off an investigation of the CE Commission, an opinion of the data protection national authorities Working Group and an investigation carried out by the Belgian authorities ,who are the one responsible for the control of the activities carried onby the company  SWIFT.

The conclusions of these discussions pointed out that the management of these data – although illegal in the EU territory-  is legal in the USA territory on condition that:

-the company SWIFT adheres to the voluntary programme “SAFE HARBOR” to protect its clients[5] and

– American authorities respect a series of self-imposed limitations to limits data access; Furthermore,  the constant presence of SWIFT employees when data are collected should be granted and a periodical review by an independent authority  nominated in a concerted way by the USA and the EU takes place.

This complex jurisdictional construction was – and still is-  based on the principle that these data are in the USA territory and therefore under jurisdiction of the American authorities.

However, things chaged when the company SWIFT restructured the systems architecture of the financial messaging network in 2007 and its global data centres.  Becasue of this, SWIFT decided that the data coming from interbanking transactions outside the USA territory were all relocated exclusively within the European territory no longer allowing a mirror copy of these data in the American servers.

Based on the argument that retained data are crucial to the fight against terrorism, American authorities asked to keep on accessing these data also once they would have been relocated to the EU territory (and under EU legislation), with the guarantee that in case of a terrorist threat these data would have been transmitted back to the EU.

This ofer was mainly made on the basis that the majority of the European states are not equipped to use and process the data gathered in the TFTP. Therefore, in this way not only the United States but also the European Union would have benefit from the programme. 

On the basis of this reasoning, negotiations started before summer 2009 and have been carefully followed by the European Parliament which in its resolution in September 2009 listed the minimum conditions to be applied to make sure that the use of data of TFTP is compatible with European standards. These indications refer to data protection as well as judicial protection standards, given that these are information that can be used for counter terrorism activities.

Against this background two agreements have been put forward:  a first transitional agreement of the limited duration of 9 months and a second longer one whose negotiations should start in the next few weeks.

The “transitional” text of the first agreement has now been published in the Official Journal and will enter into force on 1st February 2010;  it recalls some of the concerns of the European Parliament, not last the one concerning the need to anchor the implementation of this agreement to that on judicial cooperation in criminal matters between the EU and the USA concluded in Washington on 28 October 2009.[6]

It is too early to predict what the European parliament will do. One should not give for granted the outcome of the parliamentary scrutiny and its final vote since the Treaty of Lisbon (Article 16 TFEU) and the now binding Charter of Fundamental Rights[7] have introduced even stricter standard in terms of data protection.

EDC

[1] See GAFI recommendations such as the VII financial provision to gather data concerning transfer above 1.000 $ in Europe (3.000 $ in the USA) and to make them available to the authorities; see also Communitarian Directives on money laundering and Communitarian Regulations in this field (such as  Regulation (CE) No 1781/2006 of the European Parliament and the Council of 15 November 2006 on information on the payer accompanying transfers of funds)  

[2] CRF Presidential Executive Order 13224 issued by the President George Bush on 23 September 2001.

[3] See Wikipedia reconstruction: http://en.wikipedia.org/wiki/Terrorist_Finance_Tracking_Program

[4] See resolution of 6 July 2006 on the interception of bank transfer data from the SWIFT system by the US secret services (OJ C 303 E, 13.12.2006, p. 843) and Resolution of 14 February 2007 on SWIFT, the PNR agreement and the transatlantic dialogue on these issues (OJ C 287 E, 29.11.2007, p. 349).

[5] The Commission CE assessed that Safe Harbor guaranteed a sufficient level of data protection back in 2001.

[6] Processing of EU originating Personal Data by United States Treasury Department for Counter Terrorism Purposes – “SWIFT” (OJ C 166, 20.7.2007, p. 18).

[7] See also the European Convention on Human Rights, in particular Articles 5, 6, 7 and 8 thereof, the Charter of Fundamental Rights, in particular Articles 7, 8, 47, 48 and 49 thereof, Council of Europe Convention No 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data, Directive 95/46/EC and Regulation (EC) No 45/2001.

Will Haiti tragedy boost the development of the European Union’s instruments in the field of civil protection?

In an article published in Le Soir on 16 January Guy Verhofstadt, former Belgian Prime Minster and current President of the Liberal Group of the European Parliament criticizes the weak role of the European Union and the standing leading role played by the Member States which demonstrate the absence of a real European approach.

Nevertheless, Verhofstdat observes that a coordinated action would make the difference and would multiply aid’s impact, especially in the event of crisis. Furthermore, such a coordination would be the only compatible answer with the new institutional and legal framework introduced with the entry into force of the Lisbon Treaty.

Indeed, the Treaty finally clarifies areas kept deliberately blurred for a very long time.

In the Lisbon Treaty the notion of solidarity between Member States and with third countries appears for the first time. Namely, article 3 of the TEU and, more importantly, Article 21 of the TUE on the basis of which:

1. The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.

2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:

(a) safeguard its values, fundamental interests, security, independence and integrity;

(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;

(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;

(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;

(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;

(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;

(g) assist populations, countries and regions confronting natural or man-made disasters (…)

Although several types of solidarity exist, going from humanitarian aid to civil protection, before the entry into force of the Treaty of Lisbon these interventions had an unclear legal basis. On the one hand, despite the fact that humanitarian aid refers to any country in the world, it was limited to cooperation with developing countries (ex art 179 TEC now 209 TFEU). On the other hand, civil protection interventions were foreseen only within the European Union territory, raising several concerns in relation to which kind of interventions the EU could have carried on to tackle emergencies, such as that of  Tsunami in 2004.

This uncertainty has now been overcome. Indeed, article 196 of the TFEU foresees the possibility for the European Union to

“(…)promote swift, effective operational cooperation within the Union between national civil-protection services (…)”.

In addition, the new Treaty validates the possibility to deploy civil protection mechanisms also in case of natural as well as human disasters, such as terrorist attacks. As a result, the use of police forces, highly developed technologies and military forces not only becomes desirable but also compulsory.

Verofstadt correctly reminds that some Member States blocked in the past the possibility to create a flying squad unite (EU-FAST) precisely to avoid the use of military technology both for logistic and operational activities (as in the aftermath of the Tsunami and Haiti’s earthquake  where hospital ships and aircraft carriers have been used).

However, with the Treaty of Lisbon  civil and military support becomes part of the civil protection as foreseen by the Stockholm Programme (*) as well as an essential element for the implementation of the solidarity clause foreseen in article 222 of the TFEU (which  alligns the cooperation between the Member States’ and the Institutions with the clause foreseen in article 5 of the Nato Treaty).

On the basis of what has been just said, it should not come as a surprise if  in 2008 with the signing of the Treaty and before its entry into force, the EU Institutions and the Member States adopted a long joint statement defining their  roles in case of intervention in third countries and foreseeing the use of military forces.

To sum up, it is now possible and necessary to update the current European Union’s Civil Protection Mechanism and the  Monitoring Information Center  on the basis of the new Treaty by giving the possibility to deploy military means for civil purposes and re-launch the debate on the currently blocked proposal to create a sort of coordinating mechanism to tackle emergency situations for critical infrastructures (energy networks, transports, healthcare…).

This is a crucial challenge for the High Representative and the Institutions which can now decide by qualified majority and in codecision with the European Parliament.

Although it seems that Member States are opened to such an option (at least on the basis of a recent report dated November 2009 on EU capacity to prevent and respond to disasters), it should be reminded that several Member States do not support developments in this field. Indeed,  no debate has been carried on in relation to the creation of a real European consular and diplomatic protection for European citizens in third countries which has already examined in this blog.

Hence, although hopes should be kept low  it is now evident that a swift decision in this domain has become a necessity.

EDC

(*)4.6   Comprehensive and effective EU Disaster Management: reinforcing the EU’s capacities to prevent, prepare for and respond to all kinds of disasters

Natural and man-made disasters such as forest fires, earthquakes, floods and storms, as well as terrorist attacks, increasingly affect the safety and security of citizens and call for the further development of EU action in disaster management.

EU disaster management should be based on an integrated approach, covering the whole disaster cycle encompassing prevention, preparedness, response and recovery for actions both inside and outside the Union.

EU disaster management is built on two main principles: the responsibility of Member States for providing their citizens with the necessary protection in view of the existing risks and threats, and solidarity amongst the Member States to assist each other both before, during and after disasters, if catastrophes overwhelm national capacities or affect more than one Member State. The European Council considers that future EU action should be guided by the objectives of reducing vulnerability to disasters by developing a strategic approach to disaster prevention and by further improving preparedness and response while recognising national responsibility. Guidelines for hazard and risk- mapping methods, assessments and analyses should be developed as well as an overview of the natural and man-made risks that the EU may face in the future. Continued efforts are necessary to strengthen the Union Civil Protection Mechanism and to improve the civil protection instruments, including the availability, interoperability and use of and support for the coordination of assistance also outside the EU territory on occasions of serious emergencies involving EU citizens abroad. The Monitoring and Information Centre (MIC) should be reinforced in order to improve the coordination of Member States’ assistance, provide mapping and analytical support to the Member States for the further identification and registration of national and multinational civil protection modules and develop training and exercises in order to contribute to an efficient EU disaster response.

 

Reducing vulnerability to attacks is one of the major objectives pursued with EU action concerning the protection of EU Critical Infrastructure. The Directive on Critical Infrastructure, when implemented, should be analysed and reviewed in due course in order to consider the possible inclusion of additional policy sectors.

The CBRN (chemical, biological, radiological and nuclear) risk, and in particular the threat of terrorist groups using CBRN materials, has led to action at national and EU levels. The overall goal of the policy on CBRN security is to present a prioritised, relevant and effective European strategy to enhance the protection of EU citizens from incidents involving CBRN materials. In order to achieve this goal, the implementation of the EU CBRN Action Plan based on an all-hazards approach, including actions to prevent, detect, prepare and respond to larger incidents with high risk CBRN materials, is vital.

Increasingly research will be of importance to support all areas of disaster management. Possibilities for research within the seventh research Framework programme and within the following framework programmes need to be analysed and appropriate proposals should be made to support that goal.

Close cooperation with international organisations, in particular the United Nations, which has an overall co-ordinating role in international humanitarian response should continue to be a priority for interventions in third countries, both on the ground and in terms of preparedness (training, joint exercises). In accordance with the 2007 European Consensus on Humanitarian Aid a strong EU coordination and role will enhance the overall international humanitarian response, including concerted efforts to improve the humanitarian system, and would also reinforce the EU ambition of working closely with other humanitarian actors. The safety and security of the EU requires continuous dialogue and cooperation with third countries, and in particular neighbouring countries and countries with a Member State perspective. The Union’s increasing initiatives for strengthening regional cooperation, e.g. for the Mediterranean, the Baltic Sea area and the Black Sea, as well as the Eastern partnership, are designed to contribute to this.

Terrorism and individual freedom: after Detroit new strategies in the United States and Europe?

The speech where President Obama took full responsibility of the administration’s failure to prevent the aborted attack to the Detroit fight, confirms, if there were any doubts, the firmness and quality of the civic and political debate in the other side of the Atlantic.

By publicly recognising the administration’s liability and, more importantly, taking measures to tackle the loops the strong authority of a country that after 9/11 has made of the fight against terrorism its main priority has been confirmed.

Continue reading “Terrorism and individual freedom: after Detroit new strategies in the United States and Europe?”

Internal security in the EU: the priorities of the next 18 months

Following the previous note on borders, immigration and asylum we wil now proceed with the priorities announced by the Spanish presidency in the field of internal security of the EU. These come from the working document of the Spanish, Belgium and Hungarian Council Presidencies which will follow one after the other in the next 18 months. As usual, additional notes will provide a comprehensive overview of the different topics.

Continue reading “Internal security in the EU: the priorities of the next 18 months”