Parliamentary Tracker: LIBE Security Dialogue with Interior Minsters of Germany and France (27/03/17)

by Luigi LIMONE (FREE-Group Trainee)

NB : Video link of the LIBE Security Dialogue with Thomas De Maizière (Federal Minister of the Interior of Germany) and Matthias Fekl (Minister of the Interior of France) – Exchange of views

As part of the security dialogue between France and Germany, a letter from the Federal Minister of the Interior of Germany and the Minister of the Interior of France concerning enhanced collective security in Europe was sent on 20 February 2017. The two ministers were invited to present the main points of their security dialogue before the LIBE committee.

Firstly, Matthias Fekl talked about the current perspectives on counter-terrorism in Europe. According to him, Europe is facing extremely high threat levels and therefore there is a lot to do in the field of security and prevention. The EU needs to work quickly and effectively, in order to combat terrorism and protect its citizens and their civil liberties. To do so, Member States should make use of the new counter-terrorism regulation which has recently been adopted and which constitutes a very important legal instrument. Among the long-term objectives in this area, Fekl mentioned the protection of EU external borders as the priority. In his opinion, new measures should be adopted to reinforce external border controls, such as a correct implementation of the PNR directive, the strengthening of the Schengen Information System (SIS) and the application of the fire-arms directive.

Thomas De Maizière then talked about the importance of interoperability, which is about   interlinks between the different systems. According to him, the principle of interoperability is fundamental for a good interconnection between information systems. Specifically, Eurodac and the Schengen Information System (SIS) should be considered as two complementary databases, the former collecting fingerprints but no names and the latter collecting names but not fingerprints. For De Maizière, interoperability is a central element of the EU security policy and there is today a need for a smart system for access to data as well as a rapid information exchange. He recalled, however, that data protection provisions should be respected in any case.

On interoperability, Matthias Fekl stated that every law enforcement officers should have real and direct access to information, in order to easily identify possible threats. For him, it is necessary to reinforce entry/exit controls at external borders, including on EU citizens. To do so, the EU should find a right balance between interoperability and protection of personal data. According to him one thing does not necessarily exclude the other.

Thomas De Maizière then dealt with the entry/exit system, which is expected to be put into place by the middle of the current year. For him, the entry/exit system is a prerogative for the existence of an area of free movement inside Europe. The EU must therefore reinforce its controls at the external borders. To do so, Member States have to make use of the information and data collection instruments which have already been put into place.

Matthias Fekl introduced the last element of the discussion, namely cryptic electronic device cooperation. According to him, one of the problems the EU is facing in this domain concerns the lack of cooperation on data exchange and information release by several electronic device operators. To close this gap, electronic device operators should be subjected to equal requirements concerning information transfer, while ensuring the full respect of individual freedom and personal data at the same time.

Thomas De Maizière concluded on telecommunications and media, by stating that the EU had already tried to adapt its legal framework to modern technologies, such as smartphones  and internet devices. According to him, it is however necessary to move from a legislation based on the type of technology (each technology has its own regulation) to a legislation focusing on different forms of surveillance and control on the information sources accessed by such devices.

Debate with MEPs:

For Roberta Metsola (EPP – Malta), it is not true that the only solution in order to reinforce internal security is the strengthening of EU external border controls, since there are some elements which refer to the internal security level. She also raised some concerns about the EU-US data protection agreement.

According to Birgit Sippel (S&D – Germany), there are some basic prerogatives upon which Member States must agree before, in order for interoperability to work in the right direction. Moreover, harmonisation is needed when it comes to definitions of what terrorism, terrorist threat and suspect of terrorism are.

Helga Stevens (ECR – Belgium) agreed with the necessity to find a balance between information exchange and privacy protection. She also highlighted the urgent need to fight against terrorist organisations and she made the example of Belgium, where, according to her, thousands of jihadist organisations are hiding in Molenbeek and they must be fought against.

Sophia In ‘t Veld (ALDE – Netherlands) said that she was quite worried about the implementation of new proposals concerning security, since the proposals previously adopted by the EU had not been implemented correctly by Member States. According to her, some  Member States are basically not interested in applying existing legislation and this creates a gap in the EU security system. In her opinion, a better definition of what terrorism is would be necessary and the EU should strike the right balance between security measures and safeguards for citizens when it comes to privacy and data protection.

According to Cornelia Ernst (GUE/NGL – Germany), it is necessary to look at the data which is already available and to think about how law enforcement forces from different Member States communicate with each other. For her, the main problem relates to the lack of communication and the existence of huge gaps in information exchange between law enforcement authorities across countries.

Ska Keller (Greens/EFA – Germany) asked for more precise figures on relocation from Greece and Italy and asked how France and Germany intend to work for speeding up the relocation process. She also told to be worried about Germany and France sending migrants back to Greece.

According to Christine Revault d’Allonnes-Bonnefoy (S&D – France), it is necessary to work on harmonisation of training activities for border and coast guards, police as well as security officials across Europe.

Cecilia Wikström (ALDE – Sweden) highlighted the importance not to mix asylum seekers and migration policy with terrorism. She said, however, that reducing the burden on frontline states caused by migration flows could lead to better security cooperation.

For Gérard Deprez (ALDE – Belgium), it is fundamental to ensure that any alarm triggered by the system is transferred immediately to the European Police Office (Europol).

For Michal Boni (EPP – Poland), when it comes to interoperability it is necessary to consider the new technical architecture for sending information in the real time. For him,  telecommunication obligations and e-privacy measures are interconnected and they have to be based on a balance between the respect for fundamental rights and the need for greater security.

According to Ana Gomes (S&D – Portugal), the reinforcement of external borders is not the right solution since recent terrorist attacks have shown that the problem comes from the inside, from home-grown terrorists. In her opinion, it is crucial to prevent radicalisation and promote de-radicalisation especially in European prisons. Another solution would be the promotion of safe and legal pathways for migrants, because in this way they would not be obliged to enter into contact with smugglers and criminal organisations to come into Europe.

For Barbara Spinelli (GUE/NGL – Italy), blocking migration flows is not the appropriate measure to reinforce security. Most of the problems affecting the EU security system concern  weak data exchange and limited transfer of information.

For Marek Jurek (ECR – Poland), in order to reinforce internal security it is necessary to exercise a strict control on smuggling activities, which he considers a real industry for illegal migration and criminals.

European Council (Art. 50) guidelines following the United Kingdom’s notification under Article 50 TEU

ORIGINAL PUBLISHED ON THE EUROPEAN COUNCIL WEBSITE

On 29 March 2017, the European Council received the notification by the United Kingdom of its intention to withdraw from the European Union and Euratom. This allows for the opening of negotiations as foreseen by the Treaty.

European integration has brought peace and prosperity to Europe and allowed for an unprecedented level and scope of cooperation on matters of common interest in a rapidly changing world. Therefore, the Union’s overall objective in these negotiations will be to preserve its interests, those of its citizens, its businesses and its Member States.

The United Kingdom’s decision to leave the Union creates significant uncertainties that have the potential to cause disruption, in particular in the United Kingdom but also, to a lesser extent, in other Member States. Citizens who have built their lives on the basis of rights flowing from the British membership of the EU face the prospect of losing those rights. Businesses and other stakeholders will lose the predictability and certainty that come with EU law. It will also have an impact on public authorities. With this in mind, we must proceed according to a phased approach giving priority to an orderly withdrawal. National authorities, businesses and other stakeholders should take all necessary steps to prepare for the consequences of the United Kingdom’s withdrawal.

Throughout these negotiations the Union will maintain its unity and act as one with the aim of reaching a result that is fair and equitable for all Member States and in the interest of its citizens. It will be constructive and strive to find an agreement. This is in the best interest of both sides. The Union will work hard to achieve that outcome, but it will prepare itself to be able to handle the situation also if the negotiations were to fail.

These guidelines define the framework for negotiations under Article 50 TEU and set out the overall positions and principles that the Union will pursue throughout the negotiation. In this context, the European Council welcomes the resolution of the European Parliament of 5 April 2017. The European Council will remain permanently seized of the matter, and will update these guidelines in the course of the negotiations as necessary. Negotiating directives will be adjusted accordingly.

I. Core principles

1. The European Council will continue to base itself on the principles set out in the statement of Heads of State or Government and of the Presidents of the European Council and the European Commission on 29 June 2016. It reiterates its wish to have the United Kingdom as a close partner in the future. It further reiterates that any agreement with the United Kingdom will have to be based on a balance of rights and obligations, and ensure a level playing field. Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach. A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking”. The Union will preserve its autonomy as regards its decision-making as well as the role of the Court of Justice of the European Union.

2. Negotiations under Article 50 TEU will be conducted in transparency and as a single package. In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately. The Union will approach the negotiations with unified positions, and will engage with the United Kingdom exclusively through the channels set out in these guidelines and in the negotiating directives. So as not to undercut the position of the Union, there will be no separate negotiations between individual Member States and the United Kingdom on matters pertaining to the withdrawal of the United Kingdom from the Union.

3. The core principles set out above should apply equally to the negotiations on an orderly withdrawal, to any preliminary and preparatory discussions on the framework for a future relationship, and to any form of transitional arrangements.

II. A phased approach to negotiations

4.  On the date of withdrawal, the Treaties will cease to apply to the United Kingdom, to those of its overseas countries and territories currently associated to the Union, and to territories for whose external relations the United Kingdom is responsible. The main purpose of the negotiations will be to ensure the United Kingdom’s orderly withdrawal so as to reduce uncertainty and, to the extent possible, minimise disruption caused by this abrupt change.

To that effect, the first phase of negotiations will aim to:

  • provide as much clarity and legal certainty as possible to citizens, businesses, stakeholders and international partners on the immediate effects of the United Kingdom’s withdrawal from the Union;
  • settle the disentanglement of the United Kingdom from the Union and from all the rights and obligations the United Kingdom derives from commitments undertaken as Member State.

The European Council will monitor progress closely and determine when sufficient progress has been achieved to allow negotiations to proceed to the next phase.

5. While an agreement on a future relationship between the Union and the United Kingdom as such can only be finalised and concluded once the United Kingdom has become a third country, Article 50 TEU requires to take account of the framework for its future relationship with the Union in the arrangements for withdrawal. To this end, an overall understanding on the framework for the future relationship should be identified during a second phase of the negotiations under Article 50 TEU. We stand ready to engage in preliminary and preparatory discussions to this end in the context of negotiations under Article 50 TEU, as soon as the European Council decides that sufficient progress has been made in the first phase towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal.

6. To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the Union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship in the light of the progress made. Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply.

7. The two year timeframe set out in Article 50 TEU ends on 29 March 2019.

III. Agreement on arrangements for an orderly withdrawal

8. The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU Member State is a fundamental aspect of the European Union. Along with other rights provided under EU law, it has shaped the lives and choices of millions of people. Agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be the first priority for the negotiations. Such guarantees must be effective, enforceable, non-discriminatory and comprehensive, including the right to acquire permanent residence after a continuous period of five years of legal residence. Citizens should be able to exercise their rights through smooth and simple administrative procedures.

9. Also, the United Kingdom leaving the Union will impact EU businesses trading with and operating in the United Kingdom and UK businesses trading with and operating in the Union. Similarly, it may affect those who have entered into contracts and business arrangements or take part in EU-funded programmes based on the assumption of continued British EU membership. Negotiations should seek to prevent a legal vacuum once the Treaties cease to apply to the United Kingdom and, to the extent possible, address uncertainties.

10. A single financial settlement – including issues resulting from the MFF as well as those related to the European Investment Bank (EIB), the European Development Fund (EDF) and the European Central Bank (ECB) – should ensure that the Union and the United Kingdom both respect the obligations resulting from the whole period of the UK membership in the Union. The settlement should cover all commitments as well as liabilities, including contingent liabilities.

11. The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement in all its parts, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.

12. The Union should agree with the United Kingdom on arrangements as regards the Sovereign Base Areas of the United Kingdom in Cyprus and recognise in that respect bilateral agreements and arrangements between the Republic of Cyprus and the United Kingdom which are compatible with EU law, in particular as regards safeguarding rights and interests of those EU citizens resident or working in the Sovereign Base Areas.

13. Following the withdrawal, the United Kingdom will no longer be covered by agreements concluded by the Union or by Member States acting on its behalf or by the Union and its Member States acting jointly. The Union will continue to have its rights and obligations in relation to international agreements. In this respect, the European Council expects the United Kingdom to honour its share of all international commitments contracted in the context of its EU membership. In such instances, a constructive dialogue with the United Kingdom on a possible common approach towards third country partners, international organisations and conventions concerned should be engaged.

14. The withdrawal agreement would also need to address potential issues arising from the withdrawal in other areas of cooperation, including judicial cooperation, law enforcement and security.

15. While the future location of the seats of EU agencies and facilities located in the United Kingdom is a matter for the 27 Member States to settle rapidly, arrangements should be found to facilitate their transfer.

16. Arrangements ensuring legal certainty and equal treatment should be found for all court procedures pending before the Court of Justice of the European Union upon the date of withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom. The Court of Justice of the European Union should remain competent to adjudicate in these procedures. Similarly, arrangements should be found for administrative procedures pending before the European Commission and Union agencies upon the date of the withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom. In addition, arrangements should be foreseen for the possibility of administrative or court proceedings to be initiated post-exit for facts that have occurred before the withdrawal date.

17. The withdrawal agreement should include appropriate dispute settlement and enforcement mechanisms regarding the application and interpretation of the withdrawal agreement, as well as duly circumscribed institutional arrangements allowing for the adoption of measures necessary to deal with situations not foreseen in the withdrawal agreement. This should be done bearing in mind the Union’s interest to effectively protect its autonomy and its legal order, including the role of the Court of Justice of the European Union.

IV. Preliminary and preparatory discussions on a framework for the Union – United Kingdom future relationship

18. The European Council welcomes and shares the United Kingdom’s desire to establish a close partnership between the Union and the United Kingdom after its departure. While a relationship between the Union and a non Member State cannot offer the same benefits as Union membership, strong and constructive ties will remain in both sides’ interest and should encompass more than just trade.

19. The British government has indicated that it will not seek to remain in the Single Market, but would like to pursue an ambitious free trade agreement with the European Union. Based on the Union’s interests, the European Council stands ready to initiate work towards an agreement on trade, to be finalised and concluded once the United Kingdom is no longer a Member State.

20. Any free trade agreement should be balanced, ambitious and wide-ranging. It cannot, however, amount to participation in the Single Market or parts thereof, as this would undermine its integrity and proper functioning. It must ensure a level playing field, notably in terms of competition and state aid, and in this regard encompass safeguards against unfair competitive advantages through, inter alia, tax, social, environmental and regulatory measures and practices.

21. Any future framework should safeguard financial stability in the Union and respect its regulatory and supervisory regime and standards and their application.

22. The EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy.

23. The future partnership must include appropriate enforcement and dispute settlement mechanisms that do not affect the Union’s autonomy, in particular its decision-making procedures.

24. After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom.

V. Principle of sincere cooperation

25. Until it leaves the Union, the United Kingdom remains a full Member of the European Union, subject to all rights and obligations set out in the Treaties and under EU law, including the principle of sincere cooperation.

26. The European Council recognises the need, in the international context, to take into account the specificities of the United Kingdom as a withdrawing Member State, provided it respects its obligations and remains loyal to the Union’s interests while still a Member. Similarly the Union expects the United Kingdom to recognise the need of the 27 Member States to meet and discuss matters related to the situation after the withdrawal of the United Kingdom.

27. While the United Kingdom is still a member, all ongoing EU business must continue to proceed as smoothly as possible at 28. The European Council remains committed to drive forward with ambition the priorities the Union has set itself. Negotiations with the United Kingdom will be kept separate from ongoing Union business, and shall not interfere with its progress.

VI. Procedural arrangements for negotiations under Article 50

28. The European Council endorses the arrangements set out in the statement of 27 Heads of State or Government on 15 December 2016.

Parliamentary Tracker : Notes on the LIBE works (meeting March 22/23) UPDATED

by Beatrice FRAGASSO and Luigi LIMONE (* FREE Group Trainees)

NOTA BENE : THIS IS NOT AN OFFICIAL RECORDING BUT WEB STREAMING OF THIS MEETING IS ACCESSIBLE ON THE EP WEBSITE  HERE

22 March 2017, (afternoon  15.00 – 18.30)

Point 1) : EU agency for law enforcement training. Presentation of the multi-annual programme by Dr Ferenc Banfi, Executive Director of Cepol.

According to Dr Ferenc Banfi, over the last few years there has been an intense increase in the number of participants in the training programmes organised by Cepol. This rise in participation, together with a multiplication of the training activities, has not undermined the quality of the system. In fact, there has been an overall satisfaction rate of 95%. The activities of Cepol have been quite relevant not only from the quantitative point of view, but also from the qualitative side. Among the innovative solutions proposed by Cepol, one of the most relevant is the European Joint Master Programme 2015-2017. It consists of 13 consortium members under the leadership of the Instituto Superior de Ciências Policiais e Segurança Interna in Lisbon. A stable use of human and financial resources has been reported as well.

The new legal mandate of Cepol is regulated by Regulation (EU) 2015/2219. The regulation has introduced a broader scope for Cepol. More specifically, the agency is given a coordination and implementation role, it is asked to serve a wider target group and to provide capacity building in third countries as well as promoting preparedness of EU officials for their deployment to EU missions. The new regulation has also stimulated broad and comprehensive impact assessment. Cepol’s five-year external evaluation 2011-2015 has concluded that Cepol is effective and very efficient with regard to resource management, but it needs additional staff members.

The multi-annual programme defining Cepol’s strategy for the period 2018-2020 follows international standards and values. It mainly aims at building a joint European law enforcement culture. With this new approach, Cepol does not want to introduce a standardisation of practices, but simply lead to the application of a culture of fundamental values across Europe. Under the strategy for the period 2018-2020, four major objectives have been identified: a) high quality, multidisciplinary, innovative and relevant training and learning options, accessible to its target groups; b) contribution to and encouragement of the development of research relevant for training activities and dissemination of research findings; c) necessity to apply for appropriate resources and to ensure their effective use; d) necessity to be professionally led and managed, in order to ensure good governance in its organisational performance.

MEPs interventions:

Birgit Sippel (S&D – Germany) asked for concrete examples on the quantitative growth of the participation in Cepol. She also raised some questions on the way Cepol is working in the capacity building process in third countries through quality and support of third-country police forces. In her opinion, in order to improve the capacity building of third countries it is fundamental for Cepol to have accurate knowledge about the real situation there.

Roberta Metsola (EPP – Malta) said that the EPP group strongly supported the work of Cepol and especially the strengthening of law enforcement forces. However, she asked whether there existed an equal cooperation between Member States with regard to training activities. She also raised some questions on the cooperation with other law enforcement agencies such as Europol and Eurojust.

Reply by Dr Ferenc Banfi. According to Dr Banfi, in Europe there are countries with less law enforcement community engagement than others and therefore it is obvious that the engagement and contribution cannot be the same from every Member State. In his opinion, cooperation with Europol has been fruitful but it is still not perfect and things need to be improved. However, Europol’s agents have effectively participated in the management of the Master course. He also said that Cepol was able to go ahead thanks to the support of other agencies such as Eurojust, Frontex and the EASO.

With regard to cooperation with third countries, he said that Cepol was actively working in capacity building activities in third countries. However, for this cooperation to be effective more preparedness is needed and therefore coordination should focus on integrated efforts in terms of strategic planning, leadership and command as well as clear communication skills. As regards intelligence gathering, Dr Banfi mentioned the concrete example of the Joint Investigation Teams (JITs) in cooperation with Europol, Eurojust and other agencies, since they represent a really comprehensive tool in the hands of Cepol and other agencies with regard to different topics, such as migration, terrorism and, more in general, internal security.

 

2) Joint debate on the operationalisation of the European Border and Coast Guard – Presentation by the Commission of the first and second progress reports on the operationalisation of the European Border and Coast Guard (Frontex).

According to the Commission, while things are happening very fast in Europe, Frontex is doing its best and it is working hard in order to follow these fast changes. The purpose of the two reports is on the one hand to underline the positive outcomes of Frontex operations and on the other hand to identify the gaps to be overcome in order to make Frontex fully operational. Frontex has already deployed around 1500 board and coast officers for the management of external borders in crucial frontline states, such as Italy, Greece, Hungary, Greece and Bulgaria. What Frontex still needs to do is to fill in the gaps in terms of availability of operational tools and equipment provided by Member States. The agency is in fact still lacking helicopters, vehicles, boats and other technical equipment. The speaker on behalf of the Commission also said that five priorities had been identified by the Council and the Commission for an effective implementation of the agency’s mandate in order to make it fully operational.

– Exchange of views with Fabrice Leggeri, Executive Director of Frontex.

According to Fabrice Leggeri, the implementation of the new mandate of Frontex is on the right tracks. Leggeri highlighted some priorities identified by the Council and the Commission, among which the most relevant is to fill in the gaps on return procedures. He also talked about the gaps in terms of technical equipment. On this, he said that the new budget resources would make it possible for the agency to acquire its own technical tools. He also mentioned the success of the joint operations conducted in Greece, Italy, Bulgaria and Spain and the relevance of a pilot project with Finland. According to him, several other pilot projects are under discussion with voluntary countries, such as France and Latvia. In conclusion, he stated that Frontex should develop new functions and limit its actions not only to border surveillance. A more concerted effort is in fact needed in the fields of search and rescue, law enforcement and drug traffic. Frontex should definitely be assisted in its mission by Member States and cooperation between the Parliament and Frontex should be supported.

MEPs’ interventions:

Péter Niedermüller  (S&D – Hungary) asked for clarifications regarding the fundamental rights approach adopted by Frontex within its activities, as some cases of violence and abuse by Frontex officers had been reported by several NGOs.

Nathalie Griesbeck (ALDE – France) asked about the situation regarding cooperation with third countries, with reference to the agreement with Libya in particular. She also noted that  protection of fundamental rights during the activities managed by Frontex was reported to be weak in some cases, especially with regard to the situation of migrants in Greek islands following the entering into force of the EU-Turkey agreement.

According to Birgit Sippel (S&D – Germany), Member States seem they are not so fast in implementing new laws, that they are not ready to act at the very moment when the law is signed. As a result, even if a new mandate of Frontex is into force, the problem is that Member States are not able to implement from the first moment.

According to Carlos Coelho (EPP – Portugal), Frontex is failing in terms of information availability and further interventions are needed to make information collection more accurate.

Judith Sargentini (Greens/EFA – Netherlands) asked how and to what extent Frontex can play a role in training authorities in Libya and other North African countries. She also raised some concerns on human rights protection for migrants both along the European borders and in third partner countries.

For Sylvie Guillaume (S&D – France), there are shortcomings in the figures provided by Member States concerning the activities on borders supported by Frontex, with regard to the number of returns in particular.

Barbara Spinelli (GUE/NGL – Italy) mentioned the fact that some people were accusing some NGOs of contributing to the violation of human and fundamental rights during the operations of border control. She underlined the extremely relevant role played by NGOs and their active contribution to the protection of people’s rights as well as the assistance offered to migrants along the borders.

In reply to MEPs’ interventions, Fabrice Leggeri said that the issue of fundamental rights protection is crucial and Frontex is doing its best to respect fundamental rights, since they are part of the EU and the basis of the values promoted by the Treaties. He also highlighted the importance of readmission agreements with third countries for a better management and identification of migrants. In his opinion, return decisions are national decisions made by Member States on their own and Frontex is simply there to assist Member States, monitor on  their operations and ensure that fundamental rights are respected and, among other things, that medical care is provided to returnees.

 

3) Debate on democracy and justice in Romania further to the plenary decision of 1st February 2017 – Exchange of views (see separate draft programme)

OPENING REMARKS by Claude MORAES, Chair of the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament.

Claude Moraes (S&D – United Kingdom) introduced the session concerning the situation of democratic principles and respect of the rule of law in Romania, which was asked by some Members of the European Parliament to have some clarifications on the situation of democracy and justice in Romania after the events which had recently taken place in Romania and the subsequent waves of protests against the conservative approach adopted by the Romania government.

Speech by Tudorel Toader, Minister of Justice of Romania.

The Minister talked about the situation of the justice system in Romania with regard to the protection of human rights and freedoms as well as the application of the rule of law. According to the Minister, even though legislation in Romania has been constantly evolving and it has reached an irreversible development, the country is facing several problems today. However, Romania has a supreme court to verify the constitutional nature of the legislation and the rule of law is very well divided and respected today. Among the most urgent issues, he mentioned the need to respect prison conditions for the nearly 27300 prisoners which Romanian prisons are hosting.

Speech by Liviu Avram, Deputy Editor in chief ADEVARUL.

Liviu Avram talked about the emergency ordinance which was passed under fast-track, illegitimate procedures a couple of months ago. This ordinance was followed by waves of protests across the country. This has shed light on the crisis of the rule of law which Romania is currently facing. The decree was in fact undermining fundamentals rights and Romanian people soon understood they were being manipulated, that their fundamental rights were undermined. Therefore, they went out into the streets to protest against this abuse of power. Romania is currently lacking proper institutional protection. The only thing to do was therefore to go into the streets, protest and re-establish the rights through public demonstrations against the government.

Liviu Avram was not optimistic on the future of the country. He said that Romanian people would continue to protest and demonstrate in the streets, since next elections in Romania would be in 2020 and Romanian people would not accept to wait until that moment to vote for a government change.

Speech by Victor Alistar, Executive Director of Transparency Romania.

According to Victor Alistar, what is happening in Romania is the indicator of a common situation taking place across Europe, namely a general crisis of the rule of law at the European level. In the case of Romania, this emergency situation has led to very little dialogue and communication on what is really happening on the ground. It is therefore fundamental to understand what is the real situation now. To do so, it is necessary that civil society and citizens talk about it. Romania cannot be considered an inclusive society, if it still presents some lacuna when it comes to protecting civil liberties.

For Alistar, in the last 10 years Romania has made very huge efforts to provide integrity and basic constitutional guarantees in order to comply with European values. Nevertheless, the situation has recently taken another direction, with many cases of corruption and breaches of the rule of law. According to the surveys conducted by Transparency Romania, more than 70% of the people interviewed have stated that corruption is one of the most serious concerns which have influenced the last elections. Romanian people want corruption to be completely  eliminated, but in the years to come the situation will probably become worse and Romania will totally lose its integrity.

– Speech by Gabriel Liiceanu, Professor at University of Bucharest.

Professor Liiceanu mentioned five relevant points characterising the current situation in Romania: a) high scale corruption since 2000, with the arrival of the social democrats to power; b) the Romanian anti-corruption directorate has opened files about 2000 politicians and the results have shown that lots of politicians were prosecuted under criminal law because of corruption; c) the new government started its mandate in a situation of direct attack on justice; d) the current political system aims to steal from Romania; e) there exists a generation of people between 20 and 40 years old who have not been contaminated by this wave of nationalism and who are ready to protest.

Speech by Attila Biro, Investigative Journalist.

According to Attila Biro, corruption and organised crime represent a cross-border threat in Europe. Romanian local officials and business people were involved in transnational corruption activities, as revealed by the Panama papers. These are people that are not scrupulous at all of robbing public money and investing it for their own interests. He stated that there were many examples of Romanian public figures involved in such cases.

MEPs’ interventions:

According to Roberta Metsola (EPP – Malta), contrary to what some MEPs think, it is fundamental to have such debates in the LIBE committee. For her, the situation in Romania should not be considered as a national issue but a European issue, since Romania is part of the European Union. The EU should put into place a common mechanism in order to assess the level of corruption in its Member States. For her, democracy, justice and the rule of law are not arbitrary elements. They are contained in the Treaties and they must be respected as collective European values equally shared across Europe. In her opinion, the fight against corruption must become a priority for every Member State.

Birgit Sippel (S&D – Germany) raised some concerns about whether the current Romanian government really wants to fight against corruption. She said that Romania should provide facts and concrete actions going in that direction. On prison conditions, she said that overcrowding was one of the main issues relating to detention in the majority of the EU Member States, but some countries such as Romania had additional problems which should be tackled immediately and directly.

For Helga Stevens (ECR – Belgium), it is unacceptable that laws are adopted without proper   consultation and without the respect of democratic principles, as it happened in Romania for the emergency ordinance.

According to Nathalie Griesbeck (ALDE – France), Romania is facing a problem of  political unbalances and discussions are necessary in order to solve this situation. In her opinion, debates should involve all Europeans, since all European citizens are facing the same problems when it comes to impartiality of institutions and independence of the judiciary.

According to Cornelia Ernst (GUE/NGL – Germany), what most of Member States are  facing today is not a crisis of the rule of law, but a crisis of confidence in political and institutional structures.

 

Point 4 Of the LIBE Agenda : European Travel Information and Authorisation System (ETIAS)

 Presentation by a Commission’s representative (Mrs Belinda Pyke). The purpose of the proposal is to improve internal security and border management. Policy visa liberalization is essential in the system. The deadlines were very tight and the Commission did not have the time to conduct an impact assessment although it would have been desirable. However, the Commission published a detailed study on the subject.

In Europe, different systems for the collection of passenger data (PNR for example) are used, but not for land frontier. Australia, Canada and USA use similar methods and experience of these countries has been used for the project. The people who pose a risk will be identified. Request authorization will be easy and cheap. Applicants will receive rapidly (within 12 hours) a positive feedback. Saving travel costs for those without authorization.

The applicant will fill an online form and for the release he will pay 5 Euros. The ETIAS system provides an automatic control: such control will allow to verify that the criminal record is clean. These checks will take place on the databases such SIS, Interpol, ECRIS, Eurodac. The ETIAS central unit will compare the data in the database and the identity of the applicant. The rest of the operations will be managed by the national units. The decision of that unit will be delivered within 72 hours, unless it will be necessary to gather special information (in this case it will be possible an extension to a two-week maximum).

The cost for the creation of the ETIAS system will be 212 million euro. The annual operating costs will amount to 85 million. In any case it will be a system which is self-financing, thanks to the tax that will be paid by applicants. The data will be protected from abuse. This proposal will contribute to the security of the Schengen area because any risks will be identified prior to departure. The information may be given to law enforcement only in the case of very serious crimes (this possibility also exist for Eurodac).

The Rapporteur Kinga Gal (PPE – Hungary) not being present her notes have been presented by a colleague of the same political group. According to the rapporteur the Commission proposal is of great importance. It will cover three categories of passengers: 1) European Citizens or persons enjoying the right of free movement under Union law,  2) Third-country nationals under visa obligation, 3) Third-country nationals without visa obligation.  From now on until 2020 the number of third countries without visa obligation will increase and it’s difficult to gather information for third-country nationals without visa obligation. It’s therefore necessary to create an information system legally sound by at the same time not creating an excessive burdens for Member States. Continue reading

EU accession to the Istanbul Convention preventing and combating violence against women. The current state of play.

by Luigi LIMONE (*)

The Council of Europe Convention on preventing and combating violence against women and domestic violence, known as ‘Istanbul Convention’, is the first legally binding treaty in Europe that criminalises different forms of violence against women including physical and psychological violence, sexual violence, sexual harassment and rape, stalking, female genital mutilation, forced marriage, forced abortion and forced sterilization.

It emphasises and recognises that violence against women is a human rights violation, a form of discrimination against women and a cause and a consequence of inequality between women and men. The Convention requires the public authorities of State parties to adopt a set of comprehensive and multidisciplinary measures in a proactive fashion to prevent violence, protect its victims/survivors and prosecute the perpetrators. The Convention recognises that women experience multiple forms of discrimination and requires the State parties to ensure that tits implementation is made without discrimination on any ground such as sex, gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status or other. It also states that violence against women can never be justified in the name of culture, custom, religion, tradition nor so-called ‘honour’.

It foresees obligations to adopt a specific gender-sensitive approach in migration and asylum matters, and the establishment of a specific monitoring mechanism, (The Group of Experts on Action against Violence against Women and Domestic Violence “GREVIO”), tasked with ensuring effective implementation of its provisions by the Parties.

The Convention contains 81 articles set out in 12 separate chapters and was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011, and opened for signature.  on 11 May 2011.  The Convention is open for signature and approval by the (47) member States of the Council of Europe, non-member States which have participated in its elaboration and the European Union, and is open for accession by other non-member States. The Istanbul Convention came into force in 2014. It has been signed by all the EU Member States (but the ratification is still missing for Bulgaria, Croatia, Cyprus, Czeck Republik, Estonia, Germany, Greece, Hungary, Ireland Latvia, Lithuania, Luxembourg, Slovakia and UK)

EU Accession : different perspectives of the Commission and of the Council

It should be noted that from a legal point of view the Istanbul Convention, like many other international treaties, is a ‘mixed agreement’ which allows for EU accession in parallel to the Member States’ accession.  While the EU cannot sign up to older international human rights treaties, like the UN Covenants, since they are only open to States, newer treaties expressly provide for the EU to sign up to them. This holds particularly true for the Istanbul Convention, which deals with a number of fields the EU is competent in, including victims’ rights and protection orders, asylum and migration, as well as in judicial cooperation in criminal matters.

As Steve Peers said, the EU accession to the Istanbul Convention can only be welcomed. Although it may not, by itself, prevent any act of violence from being committed, it may accelerate a broader process of ratification and corresponding national law reform on this issue. It may also have the important practical impact of helping victims receive support or protection, particularly in the context of the law on crime victims, immigration or asylum.

More specifically, the EU ratification of the Istanbul Convention could provide encouragement to its Member States, as well as non-EU Member States, to ratify the Convention and, since the CJEU will have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, it could promote a uniform interpretation of those provisions within the EU, thus establishing a truly comprehensive  framework for preventing and combating violence against women and domestic violence.

On 4th March 2016, the European Commission has then issued a proposal for a Council decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence.

The Commission proposal for the EU accession to the Istanbul Convention has recognised the mixed nature of the Convention and but has explicitly stated that the European Union has exclusive competence to the extent that, according to art.3(2) the Convention may affect common EU rules or alter their scope (recital 6).

However it has to be noted that according to art.73 of the Convention  :“The provisions of this Convention shall not prejudice the provisions of internal law and binding international instruments which are already in force or may come into force, under which more favourable rights are or would be accorded to persons in preventing and combating violence against women and domestic violence.”  Consequently, contracting Parties to the Convention are allowed to maintain or introduce a higher level of protection for women and girls than the norms set out in the Convention.

This gives some leeway to the Member States which have already signed and in some cases also ratified the Convention. Moreover in cases where relevant Union legislation contains minimum standards as well, it can be questioned if they have lost their possibility of adopting national legislation more favorable to the victims. On September 2016, the Slovak Presidency has then requested the Legal Service to give an opinion on the competences of the Union relating to the Convention, and to identify the parts of the Convention, if any, that fall within the Union’s exclusive competence.

This opinion was issued on 27 October 2016 (doc. 13795/16 -only partially accessible to the public) and as a result of subsequent debates in the Council working Groups it was decided that the Convention should be signed on behalf of the EU only as regards matters falling within the competence of the Union insofar as the Convention may affect common rules or alter their scope.

According to an internal Council source the EU must be held to have exclusive competence for some of the provisions of the Convention set out in Chapters IV (“Protection and Support”), V (‘Substantive Law) and VI (‘Investigation, prosecution, procedural law and protective measures’) but only insofar as they relate to victims covered by Directive 2011/92/EU and Directive 2011/36/EU. (Moreover in the case of the Victim Directive it deals with minimum EU rules so that some competence remain at MS level).

On the contrary it seems indisputable that the Union has acquired exclusive competence in relation to two of the three provisions of Chapter VII (‘Migration and Asylum’).  In relation to Article 60(1) and (2) of the Convention, the current EU rules of the “Qualification Directive” does not appear to be much leeway for Member States to exceed the protection level set out in Union rules. The same applies to Article 60(3) of the Convention, in the light of the detailed provisions of the same Qualification Directive, the “Procedures Directive” and the “Reception conditions Directive”, even if they set, technically speaking, Member States to maintain or introduce more favourable protection.  As for Article 61 of the Convention, on non-refoulement, this appears to set “minimum” norms, but only in theory.  The same must be held for the corresponding provisions of EU provisions, whether primary (Article 78(1) TFEU), or secondary law.

Therefore, to protect the MS competence the Council has decided to change the legal basis and the draft decision on the signing on behalf of the European Union of the Istanbul Convention was divided into two decisions: one with regard to matters related to judicial cooperation in criminal matters and the second with regard to asylum and non-refoulement.

Both Council and Commission have recognised that the respective competences of the European Union and the Member States are inter-linked and have considered that it is appropriate to establish arrangements between the Commission and the Member States for the monitoring mechanism provided by the Convention, the so-called Group of experts on action against violence against women and domestic violence (GREVIO).

…in the meantime the European Parliament ..

At the European Parliament level, on several occasions MEPs have recalled that the EU accession to the Istanbul Convention would guarantee a coherent European legal framework to prevent and combat violence against women and gender-based violence and to protect the victims of violence, provide greater coherence and efficiency in EU internal and external policies and ensure better monitoring, interpretation and implementation of EU laws, programs and funds relevant to the Convention, as well as more adequate and better collection of comparable desegregated data on violence against women and gender-based violence at EU.

According to the MEPs the EU ratification would also reinforce the EU accountability at international level and, last but not least, it would apply renewed political pressure on Member States to ratify this instrument (note that so far all EU Member States have signed the Istanbul Convention, but only fourteen of them have ratified it).

The European Parliament has also recalled that the Commission is bound by Article 2 TEU and by the Charter of Fundamental Rights to guarantee, promote and take action in favour of gender equality. It has, therefore, welcomed the Commission proposal to sign and conclude the EU accession to the Istanbul Convention.

In this respect, a draft interim report between the LIBE and FEMM Committees is being drafted by two rapporteurs, Anna Maria Corazza Bildt (EPP – Sweden) and Christine Revault D’Allonnes Bonnefoy (S&D – France). A first LIBE/FEMM joint hearing on the issue took place on 29 November 2016. It was followed by a second joint hearing, which was held on 27 March 2017, whose aim was to highlight the importance as well as the necessity for the EU to access the Istanbul convention as a unique body.

During the latter hearing, some MEPs reiterated the importance of the EU accession to the Istanbul Convention, which could represent the basis for the introduction of a holistic approach addressing the issue of violence against women and girls and gender-based violence from a wide range of perspectives, such as prevention, the fight against discrimination, criminal law measures to combat impunity, victim protection and support, the protection of children, the protection of women asylum seekers and refugees and better data collection.

According to Malin Björk  (GUE/NGL – Sweden), the EU accession to the Istanbul convention would represent a very important step forward and it would allow to see violence against women as a political issue. For her, the EU ratification would be an opportunity to make people understand that such an issue is part of gender politics and it has to be recognised as such.

For Iratxe García Pérez (S&D – Spain), it would be extremely important to use all the best practices provided by some EU countries, such as Spain and Sweden, in order to define a common European framework for an active policy to combat violence against women. In her opinion, the European society is still unequal and gender-based violence derives from such an unbalance of power. The EU accession to the Istanbul Convention would be therefore crucial in order to set the basis for a common European strategy aiming to eliminate gender unbalances across Europe.

The key elements of the interim report were outlined during a third joint hearing which took place on 11 April 2017. On that occasion, the two rapporteurs stressed the needs for a joint effort between the European Parliament and the European Commission, in order to set up a holistic and comprehensive approach towards violence against women. Both the rapporteurs  expressed their strong support for the introduction of an EU directive and recalled that violence against women should not be considered as a national issue but as a European issue, since it affects the whole European society.

Despite the progress made at the European Parliament level, some MEPs deplored the fact that negotiations in the Council were not proceeding at the same speed.

It is not clear if the LIBE members were aware of the debates on the Council side or if they have been “timely and fully informed” of the new approach emerging on the Council side as it should had be the case according to art. 218 of the TFUE. Nor it is clear if the Commission has taken duly informed the LIBE Members in compliance with the EP-Commission Framework agreement.

(*) FREE-GROUP Trainee

 

Authorization of deprivation of liberty by judicial authorities in the recast Reception conditions Directive proposal (ICJ OBSERVATIONS)

 

April 2017

The Commision proposal of the Reception Conditions Directive (recast) COM(2016) 465 final has been published by the European Commission on 13.7.2016. On 23 February 2017, the amendments[1] have been tabled in the European Parliament on the draft report by Sophia in ‘t Veld from 18 January 2017, the Rapporteur of the recast Directive.

The ICJ supports the amendments especially when it comes to its proposals on detention. In particular in the sense that detention or other restrictions of movement that may cumulatively amount to deprivation of liberty should always and only be ordered by judicial authorities (the proposed amendments 10, 30-33, 93-95, and 243-246 regarding Recital 20, Article 8.1, 9.2 and 9.3 of the proposal in particular).

The right to liberty and security of the person is protected under international human rights law (Article 9 ICCPR, Art 5 ECHR), and means that, as a general rule, asylum seekers should not be detained, except where detention can be justified as a necessary and proportionate measure for a legitimate purpose in the specific circumstances of the case. Asylum seekers may have already suffered imprisonment and torture in the country from which they have fled and therefore, the consequences of detention may be particularly serious, causing severe emotional and psychological stress and may amount to inhuman and degrading treatment.

Under international human rights law, it is established that asylum seekers should only be detained, as a last resort, in exceptional cases and where non-custodial measures have been proven on individual grounds not to achieve the stated, lawful and legitimate purpose. Detention must not be imposed arbitrarily, it must be lawful, necessary, and applied without discrimination. Judicial authorization, as well as judicial review, of detention provides an important safeguard against arbitrariness.

The Parliamentary Assembly of the Council of Europe has clearly stated in its Resolution 1707 (2010) on Detention of asylum seekers and irregular migrants in Europe, para 9.1.3, that “detention shall be carried out by a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review.

It has been also established in international law that there is a right to judicial review of any form of detention, and that such review must always be of a judicial nature[2] UNHCR guidelines also require both automatic review of detention and regular automatic periodic reviews thereafter, and a right to challenge detention.[3]

 Taking account of the complexity of the assessment of whether a deprivation of liberty is justifiable as necessary and proportionate in the individual case of an asylum seeker and of the seriousness of the impact on human rights of deprivation of liberty, the ICJ considers that authorization by a judicial authority would always be preferential in cases of detention or other serious restrictions of movement.

 NOTES

[1] See Amendments 1-51:; Amendments 52-295:; Amendments 296-543:

[2] see European Court of Human Rights in Öcalan v. Turkey, para 70; Human Rights Committee in C. v. Australia, para 8.2-8.3; HRC General Comment No. 35, Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35 (2014), para 18).

[3] Guideline 7: “(iii) to be brought promptly before a judicial or other independent authority to have the detention decision reviewed. This review should ideally be automatic, and take place in the first instance within 24–48 hours of the initial decision to hold the asylum-seeker. The reviewing body must be independent of the initial detaining authority, and possess the power to order release or to vary any conditions of release. (iv) following the initial review of detention, regular periodic reviews of the necessity for the continuation of detention before a court or an independent body must be in place, which the asylum-seeker and his/her representative would have the right to attend. Good practice indicates that following an initial judicial confirmation of the right to detain, review would take place every seven days until the one month mark and thereafter every month until the maximum period set by law is reached. (v) irrespective of the reviews in (iii) and (iv), either personally or through a representative, the right to challenge the lawfulness of detention before a court of law at any time needs to be respected. The burden of proof to establish the lawfulness of the detention rests on the authorities in question. As highlighted in Guideline 4, the authorities need to establish that there is a legal basis for the detention in question, that the detention is justified according to the principles of necessity, reasonableness and proportionality, and that other, less intrusive means of achieving the same objectives have been considered in the individual case.”

Common Asylum Procedure Regulation: ICJ comments on the current proposal of the Regulation

THE ORIGINAL DOCUMENT OF THE INTERNATIONAL COMMISSION OF JURISTS  IS PUBLISHED HERE  (April 2017)

Introduction

On 13 July 2016, the European Commission published a proposal (Common Asylum Procedure Regulation)1 to repealing the current Common Asylum Procedures Directive (2013/32/EU).2 In this briefing paper, the ICJ presents its comments on several key procedural aspects of the proposed Regulation in view of the possible impact on the rights of asylum seekers in Europe.3

The areas most impacted include access to legal information; legal assistance, representation and legal aid; accelerated and border procedures; and access to an effective remedy.

The proposed Regulation is one of the instruments of the Common European Asylum System4 of the EU. It is intended to replace the current Asylum Procedures Directive with a Regulation and thereby aims to reduce the scope of discretion enjoyed by Member States in the implementation of matters covered under its provisions.5

The proposal of 13 July 2016 was developed in reaction to the increased arrivals of refugees in 2015 which was identified by the European Commission as a “refugee crisis for the EU.”6 In 2015, over one million people – refugees, displaced persons and other migrants – made their way to EU countries. The International Organization for Migration has estimated that some 3,771 of these persons died on their journey7 and a high number of people were stranded in the border countries, mainly Italy and Greece. The European Commission reacted with a number of legislative and policy proposals, among them a proposal for intra-EU relocation schemes,8 and the new Common European Asylum System directives and regulations.

  1. Scope of the proposal

(a)  Regulation proposal

Recital 7 and Article 2.1 would limit the scope of the Regulation to territory, border, territorial waters and transit zones. Recital 7 states that  : “This Regulation should apply to all applications for international protection made in the territory of the Member States, including those made at the external border, on the territorial sea or in the transit zones of Member States, and the withdrawal of international protection. Persons seeking international protection who are present on the territorial sea of a Member State should be disembarked on land and have their applications examined in accordance with this Regulation.”

Article 2.1 states that: “This Regulation applies to all applications for international protection made in the territory of the Member States, including at the external border, in the territorial sea or in the transit zones of the Member States, and to the withdrawal of international protection.”

(b)  Analysis of International and EU law

The limitation of the scope of the Regulation to territory, border, territorial waters and transit zones does not cover all situations, which fall under the protective jurisdiction of a State under international human rights law. Consequently, there are situations where the right of asylum (Article 18 EU Charter), the prohibition of non-refoulement, and other human rights cannot be guaranteed or risk being undermined, such as in the case of interception or rescue in international waters.

Under international human rights law, jurisdiction is generally broader than that contemplated under Recital 7 and Article 2.1. While the exact scope of a State’s protective jurisdiction will be dependent on the primary treaty or other source of law providing the basis for the protection, a common minimum standard under international human rights law is that, “jurisdiction” applies to all persons who fall under the authority or the effective control of the State’s authorities or of other people acting on its behalf, and to all extraterritorial zones, whether of a foreign State or not, where the State exercises effective control of the territory on which the person is situated.

Particularly under the European Convention of Human Rights, the leading case Al-Skeini and others v. UK, where the European Court of Human Rights (Grand Chamber) also provided a clarification as to the extraterritorial reach of the European Convention and its jurisprudence on jurisdiction.10 Among the various means in which the jurisdiction of Convention extended extraterritorially, was that of control and authority of individuals, irrespective of territory on which control and authority are exercised: “It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual.11 Similarly, under the International Covenant on Civil and Political Rights, to which all EU States are Party, States “must respect and ensure the rights laid down in the Covenant to anyone within the power of effective control of that State Party, even if not situated within the territory of the State Party.12” In respect of some of other human rights treaties, obligations extend with no territorial limitations whatsoever. For instance, the International Court of Justice has said that “there is no restriction of a general nature in the Convention on the Elimination of all forms of Racial Discrimination”, to which all EU member States are a party, and therefore it applies to all State actions within or outside its territory.13

A State may have obligations to respect and protect the rights of persons who have not entered the territory, but who have otherwise entered areas under the authority and control of the State, or who have been subject to extra-territorial action (such as detention) by a State agent who has placed them under the control of that State. Of particular relevance for migrants is the fact that the State’s jurisdiction may extend in certain situations to international waters. The European Court of Human Rights has clearly affirmed that measures of interception of boats, including on the high seas, attract the jurisdiction of the State implementing the interception. From the moment of effective control of the boat, all the persons on it fall within the jurisdiction of the intercepting State, which must secure and protect their human rights.14 The same principles apply in the context of operations of rescue at sea.

(c) Conclusions and recommendations

The ICJ recommends extending the scope of the Regulation so as to apply to all situations where the Member State has effective authority or control over the asylum seeker, including in international waters.

  1. Access to legal information

Continue reading

EU-Afghanistan “Joint Way Forward on migration issues”: another “surrealist” EU legal text ?

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by Luigi LIMONE (*)

It may be a coincidence but this year we are not only celebrating the 50th anniversary of Rene’ MAGRITTE painter’s death but also witnessing his surrealist approach spreading also in the EU Institutions and Member States legal practice.

We already know already that the core of 90% of legislative interinstitutional negotiations takes place in a confidential “informal” framework (the so called “trilogues” procedure) which run against the Treaties grounded obligation of legislative debates to be held in public.

Thanks to the Court of Justice (Cases T-192/16, T-193/16 and T-257/16) we have also recently discovered that the EU-Turkey “deal” on migration which was trumpeted as an EU achievement by the European Council President was not in fact an EU agreement because “neither the European Council nor any other institution of the EU decided to conclude an agreement with the Turkish Government on the subject of the migration crisis.”  According to the CJEU press release “In the absence of any act of an institution of the EU, the legality of which it could review under Article 263 TFEU, the Court has declared that it lacked jurisdiction to hear and determine the actions brought by the three asylum seekers. For the sake of completeness, with regard to the reference in the ‘EU-Turkey statement’ to the fact that ‘the EU and [the Republic of] Turkey agreed on … additional action points’, the Court has considered that, even supposing that an international agreement could have been informally concluded during the meeting of 18 March 2016, something which has been denied by the European Council,  the Council  of  the European Union  and the  European Commission in the  present  cases, that agreement would have been an agreement concluded by the Heads of State or Government of the Member States of the EU and the Turkish Prime Minister. In an action brought under Article 263 TFEU, however, the Court does not have jurisdiction to rule on the lawfulness of an international agreement concluded by the Member States.”

 

Now a third example of legal surrealist approach is offered to us by the Joint Way Forward (JWF) declaration on migration issues with Afghanistan and the EU. It was signed during the Afghanistan donor conference which took place in Brussels on 4 and 5 October 2016 and brought together representatives from 75 countries and 26 international organizations, with the ultimate aim of finding new funding solutions to end violence and introduce a political process towards lasting peace and reconciliation in Afghanistan.

Unlike for the EU-Turkey “deal” this time the EU Institutions recognize to be responsible of this text.  Intervening before the European Parliament competent committee (LIBE)  Simon Mordue, Deputy Director-General for Migration, DG Migration and Asylum (DG HOME), this declaration aims to facilitate the return process of irregular Afghans and to support their sustainable reintegration in the Afghan society, while fighting the criminal network of smugglers and traffickers at the same time. The objective, as stated in the document, is “to establish a rapid, effective and manageable process for a smooth, dignified and orderly return of Afghan nationals who do not fulfill the conditions in force for entry to, presence in, or residence on the territory of the EU, and to facilitate their reintegration in Afghanistan in a spirit of cooperation”. The document also clarifies that “in their cooperation under this declaration, the EU and Afghanistan remain committed to all their international obligations, in particular: a) respecting the provisions of the 1951 Convention relating to the Status of Refugees and its 1967 New York Protocol; b) upholding the rights and freedoms guaranteed in the International Covenant on Civil and Political rights and the EU Charter on Fundamental Rights and the Universal Declaration on Human Rights; c) respecting the safety, dignity and human rights of irregular migrants subject to a return and readmission procedure”.

The little detail is that even if the wording of the text looks like an international agreement  the Commission has clearly stated also before the EP plenary that the text is not.. binding even if, its wording, objective and content, is the same of a formal readmission agreement like the ones that the European Union has so far concluded with 17 non-EU countries an which have approved by the European Parliament following art. 79 par 3 of the TFEU. (SEE NOTE BELOW)

According to the Commission the Joint Way Forward  should instead be considered a simple “joint statement”,  not legally enforceable wich simply “paves the way for a structural dialogue and cooperation on migration issues, based on a commitment to identify effective ways to address the needs of both sides”.  However, as noted by Tony Bunyan, director of Statewatch, also the readmission agreement with Turkey of 18 March 2016 originated in the form of two letters and of an informal declaration and the European Union. Now the EU has adopted the same approach with Afghanistan.

Is the joint declaration with Afghanistan, in fact, representing  another attempt to conclude a readmission agreement, while bypassing the rules (art.79 p 3 and 218 of the TFEU)   laid down in the EU Treaties for the conclusion of international readmission agreements and notably the approbation by the the European Parliament?

 

The Joint Way Forward (JWF) declaration is in line with the recent political shift in EU foreign policy, which now primarily focuses on curbing migration and making deterrence and expulsion the main objectives of its relationships with third countries. The shift towards the externalization of migration management and control is exemplified by the new Partnership Framework, which was proposed by the European Commission in June 2016 under the European Agenda on Migration. The ultimate aim of the Partnership Framework is “a coherent and tailored engagement where the Union and its Member States act in a coordinated manner putting together instruments, tools and leverage to reach comprehensive partnerships (“compacts”) with third countries to better manage migration in full respect of our humanitarian and human rights obligations”.

In practice, the Partnership Framework has introduced an alternative approach with regards to readmission agreements, which are now concluded in the form of informal agreements by means of “informal” swift procedures.

This is done  , under pressure from some Member States, in particular Germany. It was already the case for the “non-EU” agreement with Turkey on March 2016, and also now Germany has hardly fought for a rapid adoption of an “informal” agreement with Afghanistan. Faced with the rise in arrivals form Afghanistan, in October 2015 the German Ministry of Interior Thomas de Maizières had already announced that Germany wanted to return to Afghanistan all the Afghan nationals who were not eligible for asylum, including those who had lived in Iran or Pakistan and, consequently, had no link to Afghanistan itself, and that to do so he would have urged the European Union to negotiate an agreement with the government of Kabul.  By invoking the need urgently facing the migration crisis, the political priorities of the Member States are now “deterrence” and “expulsion” and this has also gained the support of  EU Commission which is increasingly moving towards packaging these priorities in a format which  bypass the European Parliament and the lengthy formal procedures with a high risk of  human rights violations.  In fact, this new fast-track approach not only prevents any form of democratic scrutiny but also ignores the concerns of the civil society about the situation in Afghanistan and about the major risks of rights violations, such as the principle of non-refoulement, exposure to inhuman and degrading treatment, protection against collective expulsions and the right to asylum.

Afghans constitute the second-largest group of asylum seekers in Europe, with 196,170 applying in 2015. The country is experiencing ongoing and escalated conflict, despite the efforts of the EU to present it as a country that is safe for returnees and able to reintegrate them successfully. The conflict has left more than 1.2 million people without permanent homes and has resulted in three million refugees fleeing to Pakistan and Iran. Since January 2015, around 242,000 Afghans have fled to the EU. Furthermore, the country is already facing a large number of returnees from the region. In 2015, more than 190,000 Afghan documented refugees have returned from neighbouring countries. People are exposed to a deeply deteriorating security situation, as provinces such as Helmand and Kunduz fall in to the hands of armed groups yet again.

Despite this situation, the Joint Way Forward declaration gives clear signals that the European Union will once again engage in a conduct that puts into question its obligation to protect those fleeing conflicts or persecution and to safeguard the human rights of all persons as required by the EU Charter. The declaration provides for measures to facilitate the return and readmission of Afghan nationals, such as the use of non-scheduled flights to Kabul, joint flights from several EU Member States organized and coordinated by the European Border and Coast Guard Agency (Frontex), including the possibility to build a dedicated terminal for return in Kabul airport. The Joint Way Forward declaration also opens up the return of women and unaccompanied children and no mention is made to the best interest of the child. The document, in fact, states that “special measures will ensure that such vulnerable groups receive adequate protection, assistance and care throughout the whole process”.

It has to be acknowledged that some Members of the European Parliament have already raised several concerns on the legitimacy of the Joint Way Forward declaration as well as on its content. They have criticized the approach of the European Commission with regard to the adoption of informal readmission agreements as well as the conditionality imposed to third countries. In fact, the format introduced by the Partnership Framework implies a kind of connection between development aid and the third country’s willingness to cooperate for the management of migration flows. It is clear that countries like Afghanistan which are strongly dependent on foreign aid for their revenues might have no other choice but to forcibly accept to cooperate in order to receive development and financial support in exchange.

The European Union must comply with the provisions of the Treaties as well as with its democratic principles and protection of human rights, in order to avoid the replication of the EU-Turkey “statement” and the EU-Afghanistan Joint Way Forward “declaration” with other third countries, in primis Libya and Sudan which have already been identified as “interesting partners” by Italy.

 

ANNEX EU-Legal Framework on readmission agreements

EU Readmission Agreements (EURAs) are based on reciprocal obligations and are concluded between the European Union and non-EU countries to facilitate the return of people residing irregularly in a country to their country of origin or to a country of transit. The EU has stated that readmission agreements with third countries of both origin and transit constitute a cornerstone for effective migration management and for the efficient return of third country nationals irregularly present in the EU. The objective of these agreements for the EU Member States is to facilitate the expulsion of third country nationals either to their country of origin or to a country through which they transited on route to the EU. As such, they are crucial to the EU return policy, as defined in the Return Directive (Directive 2008/115/EC).

Readmission agreements are negotiated in a broader context where partner countries are usually granted visa facilitation, which means simpler procedures for their nationals to obtain shorter stay visas to come to EU Member States, and other incentives such as financial support for implementing the agreement or special trade conditions in exchange for readmitting people residing irregularly in the EU.

The legal basis for the conclusion of readmission agreements with third countries is Article 79(3) TFEU which states that “the Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States”. These agreements are negotiated with the partner country on the basis of a negotiating mandate grated by the Council to the Commission and they are then concluded after the European Parliament has given its consent. According to article 218(6) TFEU the European Parliament must, in fact, give its consent prior to the conclusion of association and similar agreements. Moreover, according to article 210(10) TFEU the European Parliament shall be immediately and fully informed at all stages of the procedure.

 

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