Worth reading : the final report by the EU High Level Expert Group on Information Systems and Interoperability (HLEG),

NB: The full version (PDF)  of the Report is accessible HERE

On May 8th the (EU) High Level Expert Group on Information Systems and Interoperability (HLEG) which was set up in June 2016 following the Commission Communication on “Stronger and Smarter Information Systems for Borders and Security ” has published its long awaited 56 long pages Report on Information Systems and Interoperability.

Members of the HLEG were the EU Members States (+ Norway, Switzerland and Liechtenstein), the EU Agencies (Fundamental Rights Agency, FRONTEX, European Asylum Support Office, Europol and the EU-LISA “Large Information Support Agency”) as well as the representatives of the Commission and the European Data Protection Supervisor (EDPS) and the Anti-Terrorism Coordinator (an High Council General Secretariat Official designated by the European Council).

Three Statements, respectively of the EU Fundamental Rights Agency, of the European Data Protection Supervisor and of the EU Counter-Terrorism Coordinator (CTC),  are attached. The first two can be considered as a sort of partially dissenting Opinions while the CTC  statement is quite obviously in full support of the recommendations set out by the report as it embodies for the first time at EU level the “Availability Principle” which was set up already in 2004 by the European Council. According to that principle if a Member State (or the EU) has a security related information which can be useful to another Member State it has to make it available to the authority of another Member State. It looks as a common sense principle which goes hand in hand with the principle of sincere cooperation between EU Member States and between them and the EU Institutions.

The little detail is that when information is collected for security purposes national and European legislation set very strict criteria to avoid the possible abuses by public EU and National Law enforcement authorities. This is the core of Data Protection legislation and of the art. 6, 7 and 8 of the EU Charter of Fundamental Rights which prevent the EU and its Member States from becoming a sort of Big Brother “State of surveillance”. Moreover, at least until now these principles have guided the post-Lisbon European Court of Justice jurisprudence in this domain and it is quite appalling that no reference is made in this report to the Luxembourg Court Rulings notably dealing with “profiling” and “data retention”(“Digital Rights”, “Schrems”, “TELE 2-Watson”…).

Needless to say to implement all the HLWG recommendations several legislative measures will be needed as well as the definition of a legally EU Security Strategy which should be adopted under the responsibility of the EU co-legislators. Without a strong legally founded EU security strategy not only the European Parliament will continue to be out of the game but also the control of the Court of Justice on the necessity and  proportionality of the existing and planned EU legislative measures will be weakened.  Overall this HLWG report is mainly focused on security related objectives and the references to fundamental rights and data protection are given more as “excusatio non petita” than as a clearly explained reasoning (see the Fundamental Rights Agency Statement). On the Content of the  perceived “threats” to be countered with this new approach it has to be seen if some of them (such as the mixing irregular migration with terrorism)  are not imaginary and, by the countrary, real ones are not taken in account.

At least this report is now public. It will be naive to consider it as purely “technical” : it is highly political and will justify several EU legislative measures. It will be worthless for the European Parliament to wake up when the formal legislative proposals will be submitted. If it has an alternative vision it has to show it NOW and not waiting when the Report will be quite likely “endorsed” by the Council and the European Council.

Emilio De Capitani

TEXT OF THE REPORT (NB  Figures have not been currently imported, sorry.)

——- Continue reading “Worth reading : the final report by the EU High Level Expert Group on Information Systems and Interoperability (HLEG),”

Think of the children: the ECJ clarifies the status of non-EU parents of EU citizen children living in their own Member State

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Professor Steve Peers

What immigration rights do non-EU citizens have under EU law? There are three main areas of EU law that address this issue: EU immigration and asylum law; EU treaties with non-EU countries; and EU free movement law. The latter area of law is focussed on EU citizens’ right to move between Member States, and so only covers non-EU citizens if they are family members of EU citizens who have moved to another Member State. Those rules also apply by analogy where an EU citizen with a non-EU family member has moved to another Member State, then moved back to that citizen’s home Member State. (These are known as Surinder Singh cases: see this discussion of the ECJ’s most recent ruling on such cases, from 2014).

But what if an EU citizen has a non-EU family member, but has never moved to another Member State? Such cases fall outside the scope of EU free movement law. They will therefore in principle fall solely within the scope of national law, unless either EU immigration and asylum law or EU treaties with non-EU countries apply (they usually will not). But in a limited number of cases, there is a fourth category of EU law which might apply to them: EU citizenship law.

This principle was first set out in the 2011 judgment in Ruiz Zambrano, which concerned Belgian children living in Belgium with two non-EU parents. The ECJ ruled that expelling the non-EU parents would in effect would result in the departure of the children from the EU, thereby risking the ‘genuine enjoyment of the substance’ of those children’s EU citizenship rights.

Subsequent ECJ case law (discussed here) made clear that this principle is apparently restricted to the non-EU parents of EU citizen children living in their home State. Cases very similar to Zambrano – two non-EU parents of an EU child – are rare, because Member States now rarely, if ever, confer nationality upon children simply because they are born on the territory. However, there are rather more cases where: a) a home-State EU citizen marries a non-EU citizen, b) their child gets home-State citizenship because one of her parents is a home-State citizen; and c) the parents’ relationship ends.

In those cases, Ruiz Zambrano still potentially applies, as long as the non-EU parent is the ‘primary carer’ for the home-State EU citizen child. In that case, removing this parent to a non-EU country would in effect force the EU citizen child to leave the EU as well.  But when exactly does the ‘primary carer’ test apply? The ECJ clarified this issue in today’s important judgment in Chavez-Vilchez and others.

Judgment

Chavez-Vilchez and others concerned a number of non-EU parents of Dutch children in the Netherlands, who sought to argue that they were primary carers of those children, and so entitled to residence in accordance with the Ruiz Zambrano judgment. The Dutch government argued that they could not automatically be considered primary carers if it was possible for the other parent, ie the Dutch citizen, to take care of the children:

…the mere fact that a third-country national parent undertakes the day-to–day care of the child and is the person on whom that child is in fact dependent, legally, financially or emotionally, even in part, does not permit the automatic conclusion that a child who is a Union citizen would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. The presence, in the territory of the Member State of which that child is a national or in the territory of the Union, as a whole, of the other parent, who is himself a Union citizen and is capable of caring for the child, is, according to the Netherlands Government, a significant factor in that assessment (para 66)

While the Court of Justice agreed that the non-EU parents could not automatically be considered as primary carers where the home state EU citizen child was dependent upon them, the Court’s approach was more open. It began by restating prior case law: the key issue was ‘who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national parent’ (para 68). It then reiterated, following Zambrano, that dependency was particularly significant (para 69). Then it added new detail on how to assess dependency:

…it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of that charter (para 70).

For the purposes of such an assessment, the fact that the other parent, a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium. (para 71; emphases added)

The Court went on to answer questions from the national court about the burden of proof in Zambrano cases, which were connected with the substantive test to be applied. The Dutch government had argued:

…the burden of proof of the existence of a right of residence under Article 20 TFEU lies on the applicants in the main proceedings. It is for them to demonstrate that, because of objective impediments that prevent the Union citizen parent from actually caring for the child, the child is dependent on the third-country national parent to such an extent that the consequence of refusing to grant that third-country national a right of residence would be that the child would be obliged, in practice, to leave the territory of the European Union (para 74).

Although the ECJ accepted that the burden of proof lay upon the non-EU parent (para 75), it also ruled that national authorities ‘must ensure that the application of national legislation on the burden of proof’ in such cases ‘does not undermine the effectiveness’ of EU citizenship rights (para 76). This meant that the authorities had to make ‘the necessary inquiries’ to find out where the EU citizen parent lived, ‘whether that parent is, or is not, actually able and willing to assume sole responsibility for the primary day-to-day care of the child’ and whether the EU citizen child was dependent upon the non-EU parent (para 77).

In effect, the Court ruled that while the non-EU citizen must make a prima facie case, national authorities share some of the burden to investigate some aspects of the case. Again, the substantive test applicable is less stringent than urged by the Dutch government.

Comments

Today’s judgment clarified a number of issues relating to Zambrano cases, following on from last year’s judgments in CS and Rendón Marín (discussed here) which clarified when non-EU Zambrano parents could be expelled for public policy reasons. While the 2016 judgments referred to the child’s best interests, age, situation and dependency (referring to case law of the European Court of Human Rights), today’s judgment also refers to ‘physical and emotional development’, ‘emotional ties’ to both parents, and the effect of separation on the child. All of these are factors relating to the child, not to the non-EU parent; but all of them nevertheless concern the child’s links with that parent.

The Dutch government’s desired focus on the capability of the EU citizen parent takes a back seat to the child’s best interests, as further elaborated by the Court. This will protect more non-EU parents, but in a differential way. Oddly, the Court’s case law does not take express account of situations of joint custody, or the more general argument that the child’s best interest will usually be to maintain strong relationships with bothparents (assuming they are not negligent or abusive).

Could it also be argued that the requirement of always seeking to identify a ‘primary carer’ is problematic from the point of view of gender equality?  Due to the division of labour relating to child care in practice, the Court’s rulings would classify more non-EU mothers than non-EU fathers as ‘Zambrano carers’; but the expulsion of those fathers will only increase the childcare demands on the EU citizen mother who remains, as well as disrupt the child’s right to maintain a relationship with his father. Of course, the presence of the parent who looks after a child day-to-day is essential; but children love the parent who kicks the ball as well as the parent who cooks the meal.

The procedural aspects of the Court’s judgment are interesting, but raise further questions: is there a right to appeal, to a decision within a reasonable time, to a lawyer, to legal aid? In last year’s judgments, the Court of Justice referred to concepts from EU free movement law and its relevant case law when discussing the substantive test for expelling Zambrano carers; but it made no such cross-references today. The long-term immigration status of the parent is also an open question, although Zambrano noted that there should be access to employment to make the residence rights of the parent effective.

Finally, a Brexit point: the draft EU position for negotiating acquired rights does not appear to cover Zambrano carers. From a technical point of view, this is logical because the case law concerns (from the UK’s perspective) non-EU parents of UK citizens who have not moved within the EU. So no free movement rights have been acquired; we are rather talking of EU citizenship rights which will necessarily be lost when the UK ceases to be a Member State, since citizenship of the EU is defined as deriving from the nationality of a Member State. But from a human point of view, any deterioration in legal status could damage or even shatter the family lives of the children concerned. Zambrano carers should therefore be protected ideally in the Brexit talks, or failing that by the UK unilaterally.

See also further reading on UK Zambrano case law by Charlotte O’Brien and Desmond Rutledge

Legislative Tracker : the European Travel Information and Authorisation System (ETIAS)

by Beatrice FRAGASSO (Free-Group Trainee)

The European Commission, on 16 November 2016, has put forward a proposal (COM(2016) 731, 16.11.2016, 2016/0357(COD)) establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulation (EU) (EU) 2016/399 (the ‘Schengen Borders Code’), (EU) 2016/794 and (EU) 2016/1624.

This proposal is being negotiated as part of the Smart Border Package and aims to ensure a high level of internal security and free movement of persons in the Schengen area. The Commission didn’t conduct an impact assessment but published a feasibility study on ETIAS, conducted between June and October 2016.

The system designed by the proposal would require also visa-exempt travellers to undergo a risk assessment with respect to security, irregular migration and public health risks prior to their arrival at the Schengen borders. This assessment would be carried out by means of cross- checking applicant’s data submitted through ETIAS system against other EU information systems, a dedicated ETIAS watch list and screening rules. This process will result in granting or denying an automated authorization for entering the EU.

Further information from the European Parliament Research Service are available HERE

The current situation
Currently, both visa-obliged and visa-exempt travelers are subject to border controls when entering the Schengen area. According to Regulation (EU) 2016/399, both categories of travelers need to comply with the conditions for short-term stay, which include not being a threat to public order and security, holding valid travel documents, justifying the purpose and conditions of the intended stay, not being the subject of any alert in the SIS for the purpose of refusing entry, and having sufficient means of subsistence.

For visa holders the compliance with this conditions is assessed at the time on the request for a visa  and relevant data are stored in visa information system (VIS) which can be consulted by law enforcement authorities for the purposes of combatting serious crime and terrorism.

However, no such advance information can be currently obtained for visa-exempt nationals arriving at the Schengen external borders. This means that border guards need to decide on allowing or refusing access to the Schengen area without prior knowledge regarding any security, migration or public-health risks associated with visa exempt travelers.

This is particularly true for visa-exempt travelers arriving by land, as the only source of information about them is their travel document presented at the time of crossing the EU external border.

The situation is different for passengers arriving by air as Council Directive 2004/82/EC obliges carriers to communicate all passenger data, known as ‘advance passenger information’ (API), including name, date of birth, passport number and nationality at the time of the check-in for inbound flights to the EU. Another Directive (EU) 2016/681 on the use of passenger name record data (the ‘PNR Directive’) collect 19 types of personal data already at the time of the flight reservation and obliges airlines to hand over to EU MS authorities their passengers’ data linked with the travel reservation (which includes travel dates, travel itinerary, ticket information, frequent flyer data,  contact details, baggage information, credit card and general remarks stored in the Airline files).

For visa-exempt passengers arriving on foot or by car, bus or train, no such comparable advance information is available prior to their arrival.

The changes the proposal would bring

Schengen Border Checks
Prior to arriving in the Schengen area, all carriers will verify if visa-exempt third-country nationals have a valid ETIAS travel authorization, without which boarding will not be authorized. A valid ETIAS travel authorization, should be obtained in advance of arrival at a Schengen border crossing point, and this will be a precondition for entering the Schengen area. However, border guards at the external Schengen borders will still take the final decision to grant or refuse entry according to the Schengen Borders Code.

Online application
As it is currently the case for visa-exempt travelers to Canada “ETA”,  USA “ESTA”  and Australia “ETA” who have to ask for a travel authorization also travelers wanting enter the Schengen area will have to fill in an online application by providing their biographical and passport data, contact details, information on intended travel, and answers to background questions relating to public health risks, criminal records, presence in war zones and previous refusals of entry or an order to leave the territory of a Member State.

At the same time, an application fee of €5, which will go to the EU budget, will be mandatory for all applicants above the age of 18 before their application can be processed.

Processing of applications
The automated processing will be carried out by the central system, which will be in charge of checking data provided by applicants against security databases, such as the VIS, Europol data, the SIS, Eurodac, the  Interpol SLTD database , the European Criminal Records Information System (ECRIS) and the planned future EU “Entry-Exit” system (currently negotiated between the EP and the Council). Personal Data will also be screened against a ETIAS “watch list” (where people suspected to have committed, or be likely to commit a criminal offence will be listed by the EU MS) and against specific risk indicators (irregular migration, security or public- health risks) which will be defined in consultation with an ETIAS screening board.

In the case of a positive hit after the automatic processing, that personal application will be further assessed manually by operators in the ETIAS central unit and in the national units.
In case no risks has been detected a positive response, in a form of a travel authorisation valid for five years (or until the expiry of the passport) will be delivered. In the case of a refusal, a justification will be given and applicants will have the right to appeal.

Authorisation will be revoked or annulled when the conditions for its issuance are no longer met, particularly when it is believed that it was fraudulently obtained or when a new alert for refusal of entry is created in the SIS.

Etias structure
ETIAS will consist of an information system, a central unit and national units.

The information system will be designed for processing applications and will be interoperable with other security databases that ETIAS will be connected. The new system will be managed by the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice (eu-LISA).

The central unit will be part of Frontex (the European Border and Coast Guard Agency) and will ensure that the data stored in the application files and the data recorded in ETIAS are correct and up to date. Where necessary, it will also verify travel authorisation applications whenever there are doubts regarding the identity of an applicant in cases where the latter’s data produced a match (a ‘hit’) against the stored data during automated processing.
The national units will be responsible for making the risk assessment and deciding on travel authorisation for applications rejected by the automated application process. They will also issue opinions when consulted by other national units, and act as a national access point for requests for access to the ETIAS data for law enforcement purposes related to terrorist and other serious criminal offences.

The role of Europol
Europol will be involved in ETIAS in several ways.
Firstly, Europol’s data related to criminal offences, convictions or potential threats will be compared to those provided by applicants for an ETIAS authorization.
Secondly, Europol will help define ETIAS screening rules by participating in the ETIAS screening board and managing the ETIAS watch list.
Thirdly, Europol will be consulted by the ETIAS national units in case of a match with Europol data during the ETIAS automated processing.
And finally, Europol will be able to consult personal data in the ETIAS central system for the prevention, detection or investigation of terrorist offences or other serious criminal offences (as provided by its mandate).

The Council’s position
In a  document om March 17, 2017 authored  by the Maltese Presidency of the Council of the EU and covering also the other legislative pending measures connected to ETIAS, a number of compromises are suggested: The Presidency identified other key issues that needed to be clarified and decided upon before revised text proposals could be submitted to delegations. The Presidency therefore prepared a discussion paper on which delegations were invited to comment. The issues outlined by the Presidency related to the division of competences between Frontex and the Member States, the definition of ‘responsible Member State’ as regards the decision to grant a travel authorisation, and the duration of a travel authorization […] With respect to the definition of the ‘responsible Member State’, delegations were divided into two groups, one in favour of the Member State of first entry, as proposed by the Commission, while the other stressed the key role played by the Member State at the origin of an alert triggering a “hit”. The following issues are the “object of extensive debates”:

“– the scope of the regulation;
– the ETIAS watchlist and the screening rules;
– the access to the ETIAS data;
– the interoperability of ETIAS with other systems and databases.”

More recently the Council Presidency has also submitted some possible compromise proposals to the other delegations (docs 8579/17 and 8584/17) and it is more than likely that the EP will be under pressure to launch the negotiations for a first reading agreement on this subject.

The European Parliament position (Libe Committee Debate)
On the EP side works are still at an initial phase (SEE OEIL DOSSIER HERE). The LIBE Committee has been informed for the first time by a Commission representative (Belinda Pyke) on 22 March 2017. It has been stressed that the purpose of the proposal is to improve internal security and border management and that policy visa liberalization is essential in the system. This proposal will contribute to the security of the Schengen area because as any risks will be identified prior to departure. Due to the political pressure of the European Council and the  very tight deadlines 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. The Commission representative made reference to the comparable systems in  Australia, Canada and USA and declared that the ETIAS system will take stock of the experience of these countries by overcoming their weaknesses and mirroring the strengths of these systems.
Firstly, request authorization will be easy and cheap. Applicants will receive rapidly (within 12 hours) a positive feedback and those without authorization will save travel costs. 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 basis of SIS, Interpol, ECRIS, Eurodac.
The ETIAS central unit will compare the data in the database and the identity of the applicant and the rest of the operations will be managed by the national units.
The decision of the 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).
ETIAS will be financially self-sustaining, thanks to the tax that will be paid by applicants. It is estimated that the costs for developing it will amount to €212.1 million, while the average annual operations costs, to be covered by the revenue from fees, will be €85 million.
The data will be protected from abuse and the information may be given to law enforcement only in the case of very serious crimes (this possibility also exist for Eurodac).

The EP rapporteur Kinga Gal (PPE – Hungary) was not present at the debate, but a colleague read her statement. The rapporteur argues that the text is of great importance and 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 until 2020 the countries without visa obligation will increase. For third-country nationals without visa obligation it’s difficult to gather information; it’s therefore necessary to create an information system well established in legal terms, so as not to put excessive burdens for Member States.

The debate that followed, however, showed controversial elements in the proposal, criticized by MEPs.
Firstly, almost all the MEPs who spoke remarked the necessity of an impact assessment, finding it unacceptable yet another lack of it. An issue of such importance can not be studied without taking into account an impact assessment: the urgency can not justify such a lack.

Birgit Sippel (S&D – Germany), for instance, affirmed that she’s tired to listen to the Commission affirming that it’s necessary to adopt better legislation and that impact assessments are not conducted anymore because of urgency. EU needs to regulate well, not in a hurry: this rush to legislate, then, does not make sense if the execution by the Member States is so slow. She also remarked that one of the problems in this proposal is that the form requires a bit of everything and there is the risk that if an applicant forgets a small offense did at 15 years old he cannot enter.

The shadow rapporteur Gérard Deprez (ALDE – Belgium) wondered what professional criteria will be provided for ETIAS units and how it will be possible to apply Article 7 of the Schengen Code, because compulsory systematic checks for everybody (as provided in that Article) would have a significant impact on traffic at the border. Deprez considered that the term of 72 hours is reasonable whereas he considers excessive the term of validity of five years, because in the course of five years many things can change in a person’s life. Also foreign experiences in fact suggest different solutions: in US visa is valid for one year and in Australia for two years. Also with regard to rates, Deprez is at odds with the proposal: 5 euro is a low price if compared to the prices of US (14 euro) and Australia (20 euro). According to Deprez, then, in the request the applicant should indicate the member state where he would like to go. The proposal, in addiction, should define a better balancing of criminal convictions. For example, prison sentences of less than one year should not be an obstacle to the granting of authorization.

It may also emerge a serious problem for air traffic. It is estimated that for a plane carrying 300 people controls may last from four hours and a half to seven hours and a half. The controls are certainly a necessary corollary for visa liberalization, but the parliament should find more efficient solutions.

On behalf of DG HOME of the European Commission Mrs Belinda Pike replied that the validity of five years would be reasonable. Of course it is noted that in the case in which the person commits an offense such information is immediately acquired in the system. Contrary to what Deprez stated, then, the cost is not too low, but it’s instead sufficient to ensure the smart management of borders. It is a fee that will cover the costs and ensures a small gain. In the US half of the fee (therefore, 7 euros) is invested in the tourism sector. Do not pay anything on the other hand would be a huge burden on the EU budget.

Belinda Pike finally stressed that the screening does not immediately lead to the rejection of the request, but simply involves manual handling of the request.

Marie – Christine Vergiat (GUE/NGL – France) and Bodil Valero (Greens/EFA – Sweden) highlighted that visas are returned, albeit with a different name (authorization). According to Marie – Christine Vergiat, then, this proposal does not promote cooperation between member states, it is repressive and attacks the fundamental rights, like others in this area of “smart” borders. Security and immigration are matters to be addressed in different texts, because adhere to different problems. The fact that some people should be identified through a profiling system also raises an ethical problem.

Bodil Valero remarked the privacy-issue. People will also provide information on education and health and Greens/Efa group would like to receive explanations about what is the reason for these provisions: perhaps the Commission’s intention is to gather information that cannot be collected in other ways. Furthermore, the 5-year period envisaged for data stocking is too long. She underlined that also the EDPS (European Data Protection Supervisor) has taken a fairly critical position on some of the elements of the proposal.
In his opinion, in fact, the EDPS states, among other things, that the establishment of ETIAS would have a significant impact on the right to the protection of personal data, since various kinds of data, collected initially for very different purposes, will become accessible to a broader range of public authorities (i.e. immigration authorities, border guards, law enforcement authorities, etc). For this reason, the EDPS considers that there is a need for conducting an assessment of the impact that the Proposal will entail on the right to privacy and the right to data protection enshrined in the Charter of Fundamental Rights of the EU, which will take stock of all existing EU-level measures for migration and security objectives.

Last but not least, during a TRAN (transport and tourism) committee on Wednesday 22 March, different speakers representing the tourist sector expressed concerns about the costs generated by the ETIAS in the tourism sector. However, the TRAN Committee decided not to give an opinion to LIBE.

NEXT STEPS

As soon as the two co-legislators will have defined their position a trilogue  could be launched which can bring to an agreement on first reading. As things currently stay an agreement will probably go hand in hand with the other “ENTRY/EXIT” legislative proposal.

 

Immigration detention and the rule of law: the ECJ’s first ruling on detaining asylum-seekers in the Dublin system

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (May 5,2017)

by Tommaso Poli (LL.M. candidate in Human Rights and Humanitarian Law at the University of Essex, School of Law).

One of the most controversial issues in immigration law is the detention of asylum-seekers. This issue was not initially addressed by the European Common Asylum System (CEAS), but is now addressed in some of the second-phase CEAS measures (the CEAS consists of the Asylum Procedures Directive, the Reception Conditions Directive, the Qualification Directive, the Dublin Regulation and the EURODAC Regulation).

In particular, the second-phase CEAS measures contain detailed rules on detaining asylum-seekers in two cases:  a) general rules in the Reception Conditions Directive, which were the subject of a first ECJ ruling in 2016 (discussed here) and a recent opinion of an Advocate-General; and b) more specific rules in the Dublin III Regulation, applying to asylum-seekers whose application is considered to be the responsibility of another Member State under those rules. Recently, the ECJ ruled for the first time on the interpretation of the latter provisions, in its judgment in the Al Chodor case.

As we will see, the Court took a strong view of the need for the rule of law to apply in detention cases. Moreover, its ruling is potentially relevant not just to Dublin cases, but also detention of asylum-seekers and irregular migrants in other contexts too.

The rules on detaining asylum-seekers in the context of the Dublin process are set out in Article 28 of the Dublin III Regulation. First of all, Article 28(1) states that asylum seekers can’t be detained purely because they are subject to the Dublin process. Then Article 28(2) sets out the sole ground for detention: when there is a ‘significant risk of absconding’. If that is the case ‘Member States may detain the person concerned in order to secure transfer procedures in accordance with’ the Dublin rules, ‘on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively’.

Next, Article 28(3) sets out detailed rules on time limits for ‘Dublin detention’; these are the subject of the pending Khir Amayry case. Finally, Article 28(4) states that the general rules on guarantees relating to procedural rights and detention conditions set out in the Reception Conditions Directive apply to asylum-seekers detained under the Dublin rules.

Al Chodor concerned the interpretation of the grounds for detention under Article 28(2): what is a ‘serious risk of absconding’?  The Dublin III Regulation offers some limited clarity, defining ‘risk of absconding’ as ‘the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third country national or a stateless person who is subject to a transfer procedure may abscond.’ (Article 2(n) of the Regulation).

Facts

The case relates to an Iraqi man and his two minor children who were traveling from Hungary in the Czech Republic, without any documentation to establish their identity, with the aim of joining family members in Germany. After stopping the Al Chodors, the Czech Foreigners Police Section (FPS) consulted the Eurodac database and found that they had made an asylum application in Hungary. As a consequence, the Al Chodors were subjected to the transfer procedure according to Article 18(1)(b) of the Dublin III Regulation. In addition, the FPS took the view that there was a ‘serious risk of absconding’, given that the Al Chodors had neither a residence permit nor accommodation in the Czech Republic, while they were waiting for their transfer to Hungary.

So, they placed the Al Chodors in detention for 30 days pending their transfer pursuant to Paragraph 129(1) of the national law on the residence of foreign nationals, read in conjunction with Article 28(2) of the Dublin III Regulation. The Al Chodors brought an action against the decision ordering their detention to the regional Court, which annulled that decision, finding that Czech legislation does not lay down objective criteria for the assessment of the risk of absconding within the meaning of Article 2(n) of the Dublin III Regulation. That Court accordingly ruled that the decision was unlawful. Following the annulment of the decision of the FPS, the Al Chodors were released from custody.

The FPS brought an appeal on a point of law before the Supreme Administrative Court against the decision of the Regional Court. According to the FPS, the inapplicability of Article 28(2) of the Dublin III Regulation cannot be justified by the mere absence in Czech legislation of objective criteria defining the risk of absconding. That provision subjects the assessment of the risk of absconding to three conditions, namely an individual assessment taking account of the circumstances of the case, the proportionality of the detention, and the impossibility of employing a less coercive measure. The FPS has submitted that it satisfied those conditions.

The Supreme Administrative Court was uncertain whether the recognition by its settled case-law of objective criteria on the basis of which the detention of persons pursuant to Paragraph 129 of the Law on the residence of foreign nationals may be carried out can meet the requirement of a definition ‘by law’ within the meaning of Article 2(n) of the Dublin III Regulation, in so far as that case-law confirms a consistent administrative practice of the FPS which is characterised by the absence of arbitrary elements, and by predictability and an individual assessment in each case. So the Court decided to refer to the European Court of Justice for a preliminary ruling asking whether Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring Member States to establish, in a national law, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond, and whether the absence of those criteria in a national law leads to the inapplicability of Article 28(2) of that regulation.

Judgment

The Court of Justice first of all ruled that Article 2(n) of the Dublin III Regulation explicitly requires that objective criteria defining the existence of a risk of absconding be defined by the national law of each Member State (paragraph 27-28). Then, determining whether the word ‘law’ must be understood as including settled case-law, the Court reaffirmed that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part (judgment of 26 May 2016, Envirotec Denmark, paragraph 27).

So with regard to the general scheme of the rules of which Article 2(n) of Dublin III Regulation forms part, the Court, referring to recital 9 of that regulation, states that the regulation is intended to make necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection of fundamental rights afforded to applicants under that system. This high level of protection is also clear from Articles 28 and 2(n) of that regulation, read in conjunction. As regards the objective pursued by Article 2(n) of the Dublin III Regulation, read in conjunction with Article 28(2) thereof, the Court recalls that, by authorizing the detention of an applicant in order to secure transfer procedures pursuant to that regulation where there is a significant risk of absconding, those provisions provide for a limitation on the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter.

In that regard, it is clear from Article 52(1) of the Charter that any limitation on the exercise of that right must be provided for by law and must respect the essence of that right and be subject to the principle of proportionality. Furthermore, it is worth noting that in this ruling the European Court of Justice explicitly aligns its interpretation to the European Court of Human Rights (ECtHR), reaffirming that any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also that lawfulness concerns the quality of the law and implies that a national law authorizing the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid risk of arbitrariness (judgment of the European Court of Human Rights of 21 October 2013, Del Río Prada v Spain, paragraph 125).

The Court then concluded by stating that taking account of the purpose of the provisions concerned, and in the light of the high level of protection which follows from their context, only a provision of general application could meet the requirement of clarity, predictability, accessibility and, in particular, protection against arbitrariness. It follows that Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must be established in a binding provision of general application. In the absence of such criteria, the detention was unlawful.

Comments

First of all, the Court’s ruling is likely relevant to the interpretation of other EU measures concerning immigration detention. In the Returns Directive, which inter alia concerns the detention of irregular migrants (as distinct from asylum seekers), the ‘risk of absconding’ forms part of the ground for detention (as well as one of the grounds for refusing to allow the irregular migrant a period for voluntary departure); and it is defined exactly the same way as in the Dublin III Regulation. As for asylum seekers who are detained on grounds other than the Dublin process, a ‘risk of absconding’ is an element of one of the grounds for detention under the Reception Conditions Directive, but is not further defined. But a recent Advocate-General’s opinion notes (at para 73) that this clause aims to prevent ‘arbitrary’ detention, which was a key feature of the reasoning in the Al Chodor judgment. This surely points to a consistent interpretation of the two asylum laws. It follows that arguably the Court’s judgment should be relevant not just to Dublin cases but to any immigration detention of non-EU citizens in any Member State bound by the relevant EU legislation.

Secondly, this ruling has reiterated the principle by which although regulations generally have immediate effect in national legal systems without it being necessary for the national authorities to adopt measures of application, some of those provisions may necessitate, for their implementation, the adoption of measures of applicability by the Member States (judgment of 14 April 2011, Vlaamse Dierenartsenvereniging and Janssens, paragraphs 47 and 48).

Most significantly, the Court has reaffirmed the primacy of Human Rights law in EU asylum law implementation, highlighting that the development of the EU asylum law itself depends on its compliance with Human Rights law. In particular, the ECJ’s ruling in this case first of all reflects the ECtHR’s interpretation of the ‘arbitrariness’ of detention, which extends beyond the lack of conformity with national law. Notably, it states that a deprivation of liberty that is lawful under domestic law can still be arbitrary and thus contrary to the general principles, stated explicitly or implied, in the Convention (judgment of the European Court of Human Rights of 9 July 2009, Mooren v. Germany, paragraphs 73-77).

The Court’s ruling also reflects UN human rights norms. The Human Rights Committee’s General Comment No. 31 related to the nature of the general legal obligation imposed on State parties to the UN Covenant on Civil and Political Rights, which all EU Member States are State parties to, which reads that ‘in no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right’ (paragraph 4). Furthermore, the Human Rights Committee’s General Comment No. 35 points out that “arbitrariness is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality” (paragraph 12, see also HRC, Van Alphen v. Netherlands, paragraph 5.8).

Finally, the Court’s ruling has confirmed the constitutional value of the Charter of Fundamental Rights of the European Union, which assumes a critical value in this historical period, since, as with any constitutional instrument, the more society as a whole is going through difficult times (such as the perceived ‘migration crisis’ in Europe), the more important it is to reaffirm its principles and values.

Likewise Article 52 of the EU Charter states that in no case may restrictions be applied or invoked in a manner that would impair the essence of a Charter right; in the context of detention, a fortiori it can be also affirmed that essential elements of guarantee for that right, as the requirement of lawfulness and non-arbitrariness for the right of liberty, cannot be disregarded in any circumstance. The Al Chodor ruling puts meat on the bones of that fundamental principle.

Parliamentary Tracker : Rule of law in Hungary (LIBE hearing on February 27,2017)

by Luigi LIMONE (FREE Group Trainee)

This BLOG has already published or reblogged  several posts on the worrying situation of fundamental rights and rule of law principle in Hungary. The most recent tense debate of the European Parliament on this issue took place in the presence of Hungarian Prime Minister Viktor ORBAN in Strasbourg on April 27. It has been widely relayed by the press (See the video stream here ) and rumors on the possible expulsion of the Fidesz party from the EPP political family have not been confirmed by the facts.

However also the LIBE committee which is in charge of protection of fundamental rights and values follows closely since several years the situation in Hungary and its last hearing on the subject took place on February 27,2017. (see below)

 

Hearing on “The situation of fundamental rights in Hungary”      (27 February 2017)

In June 2016, Hungary’s President János Áder signed into law a package of draconian counter-terrorism measures, including a “sixth amendment” to the Constitution and amendments to laws governing the police, national security services and defence forces. The aim was to streamline the process to declare a state of emergency.

The package entered into force on 1 July 2016. Its measures rely on an extremely vague concept, a “terror threat situation”. This “terror threat situation” gives the executive wide-ranging powers that risk violating Hungary’s international human rights obligations. Such a  vague definition violates the principle of legality, according to which the law is to be formulated in clear and unambiguous terms.

The police, other law enforcement officers and the military are permitted to use lethal force in a “terror threat situation”. In addition, the “sixth amendment” provides for wide scope for sweeping restrictions on the rights to freedom association and peaceful assembly, privacy and freedom of movement.

Hungarian authorities have been particularly aggressive in their attempts to draw a link between refugees and the threat of terrorism. Since 2015, the Hungarian government has taken concrete steps toward keeping refugees out of the country and it has invoked a “crisis situation due to mass immigration”, a distinct state of emergency empowering the police and military forces to “assist” the asylum authorities.

At the same time, amendments to the Criminal Code have led to the criminalization of refugees and migrants who entered Hungary irregularly through its southern border fence, instituting a wide rage of sanctions, including prison sentences and mandatory expulsion.

Eleven people have been convicted for illegal crossing of the border fence aggravated by alleged participation in mass riot. They were part of a larger group of refugees and migrants stranded at the border between Serbia and Hungary on 16 September 2015, the day after Hungary moved to completely close its southern border. All of them, including a blind elderly Syrian woman and a wheelchair-bound Syrian man living with a disability, were alleged to have participated in a mass riot in their attempt to enter the country unlawfully.

In November 2016, one of the eleven, Ahmed H. from Syria, was convicted for committing “acts of terror” and was sentenced to ten years in prison and final expulsion from Hungary. He was found guilty of using a megaphone to request that the police communicate with the refugees and migrants at the border and of throwing objects at them.

According to the government’s chief spokesman, Zoltán Kovács. Hungary will submit proposals to the EU to protect Europe’s borders by automatically detaining any asylum seeker for the whole period of their asylum application. At a briefing in London, Kovács said that anyone seeking asylum through Hungary would be kept in “shelters” for the whole period of their application, even though they would be free to go back to their own country at any point.

As regards the right to privacy, the Hungarian system of surveillance employed by the Anti-Terrorism Taskforce was found contrary to European human rights law by the European Court of Human Rights (see Szabo and Vissy v. Hungary). The taskforce had been given broad surveillance powers, including opening correspondence and reading electronic communications. The Minister of Justice can order such surveillance on any individual on the basis of national security, without prior judicial authorization and without requiring the taskforce to produce any evidence to support its request. The Court concluded that the Hungarian law endowing the Anti-Terrorism Taskforce with these surveillance powers violated the right to privacy, as there were insufficient legal safeguards to ensure protection against abuse.

Faced with this complex situation, on 16 November 2016 the LIBE Committee decided to set up a hearing to present a comprehensive picture on the situation of fundamental rights in Hungary.  The hearing took place on 27 February 2017.

Following the opening remarks by Claude Moraes, Chair of the LIBE Committee, László Trócsányi, Minister of Justice of Hungary, took the floor. He clarified that the Hungarian government had always been open to dialogue and that Europe was facing a phase of deep  uncertainty intensified by the Brexit, the terrorist threat and the migration crisis.

In his opinion, the migration crisis is one of the most serious challenges Hungary is facing, since the country is placed at the external border of the EU. He said that Hungary was taking huge responsibilities to protect the EU borders in an efficient manner. According to him, all the EU institutions and Member States have to put themselves the same goals for an effective protection of the Schengen system. In order to overcome the migration crisis, the EU needs to  fight against irregular immigration as well as migrant trafficking, stop the tendency to mix up economic migrants and refugees and identify safe countries, as in the case of Turkey.

Miklós Szánthó, Director of the Centre for Fundamental Rights, a pro-government NGO,  dealt with the situation of democracy in Hungary and in the EU. He said that democracy, including fundamental rights and the rule of law, still existed in Hungary and that was proven by the existence of a Constitution as well as legal and transparent procedures. In his opinion, there exists no comprehensive definition of democracy within the EU, apart from two   elements which have been affirmed as fundamental marks of democracy, namely free elections and equal division of powers. He said that those elements were concretely realised in Hungary and that the EU, as provided by art. 4(2) TUE, should respect the way in which each Member State interpreted democracy and its values in compliance with its own perception of sovereignty. According to him, only Member States are entitled to frame their own legal framework relating to the protection of democratic values and fundamental rights and the EU should not impose supranational visions on national authorities.

According to Todor Gardos, Researcher at Amnesty International, the European Parliament should continue to put pressure on the Council and ask for clarifications about the situation in Hungary, since a number of serious threats to fundamental rights have been reported in the country over the last few years, such as uncontrolled use of imprisonment, weakness of the judiciary, restrictions on asylum and refugee rights, lack of protection for religious and ethnic minorities. For him, the most urgent threat is linked to the exceptional measures adopted by the government since 2015 with the aim of pushing refugees and migrants back at the Hungarian border with Serbia. Such measures could have extremely negative impact for vulnerable categories and children, which are massively sent to Serbia.

Gardos said that Amnesty International was extremely worried about the situation in Hungary, where refugees and migrants are more and more associated to criminals and terrorists. He mentioned, in particular, the story of Ahmed H, a Syrian national, living in Cyprus, who went to the border fence between Hungary and Serbia to help his parents enter into Europe to find international protection. Ahmed H. was arrested by the Hungarian police. He was accused of committing an act of terrorism, even though some videos have shown that he was just using his megaphone to talk with the Hungarian authorities and invite them to open the border. Hungarian criminal law is becoming increasingly stricter. The government is targeting Hungarian nationals nationals as well, on the pretext of controlling threats to national security and preventing terrorism.

In conclusion, Gardos said that Amnesty International was calling on the European Parliament   to continue to supervise the situation of fundamental rights in Hungary and, if necessary, ask for a visit to Hungary, in order to put pressure on the Hungarian criminal law system, with regard to trial transparency in particular.

Stefánia Kapronczay, Executive Director of the Hungarian Civil Liberties Union, touched on two basic issues concerning fundamental rights in Hungary:

  1. a) freedom of expression. She said that the Hungarian government was increasingly restricting the national media market and limiting freedom of expression for civil society and NGOs with censorship and sanctions. For instance, several journalists were denied access to refugee camps during the crisis in 2015;
  2. b) the situation of active citizenship in Hungary. She reported several cases of silenced criticism, defamation against journalists as well as civil society activists and stigmatisation of civil organisations. She also said that the government was exercising strict surveillance over active citizenship and civil participation, with regard to NGO foreign funding in particular.

For Marta Pardavi, Co-Chair of the Hungarian Helsinki Committee, the most serious issue in Hungary right now is the respect for refugee human rights. She noted that Hungary was performing massive returns of migrants to Serbia, on the assumption that the latter was a safe country of origin or transit, and that in 2016 the government had decided to adopt further measures to deter migrants by closing access to protection. As a consequence, asylum seekers and migrants are now stranded in Serbia under inhuman and degrading conditions, since the situation in Serbia is becoming increasingly difficult due to overpopulation of refugee camps. She raised serious concerns over the abuses on migrants by the Hungarian authorities at the border with Serbia. Such abuses have been criticized by Frontex as well, but the Hungarian government has always refused to go into deep examination of what is happening at its border.

Conclusions

Whereas it is true that the Hungarian government has been elected under democratic principles and it should, therefore, be recognised as legitimate, a democratic society should always respect pluralism, human rights, freedom of expression and the rule of law.

Like in Poland, a deterioration of the rule of law has been reported within the Hungarian society. The amendments to the Constitution and the new measures adopted by the Hungarian government since 2010 have had an adverse impact on human rights across sectors and have negatively affected the separation of powers, an essential element of democracy and the rule of law. All counter-powers, from the judiciary and the legislative power to media and civil society have been systematically weakened or brought under control of the executive. Most laws are pushed through via fast-track procedures, which bypass democratic rules and limit parliamentary and public debate and stakeholder participation.

The amendments to the Constitution have been introduced to create a favourable framework for the adoption of new measures which risk violating fundamental rights, especially for refugees. The alleged connection between migration and terrorism has led to new discussions concerning the adoption of a new law on detention. For many years, Hungary has been notorious for applying asylum detention very frequently. Actually, since 2015 detention has become the rule and detention measures were justified on the pretext of fighting terrorism and preventing threats to national security.

The Hungarian government has the duty to protect human rights during border control measures and provide access to effective procedures. The adoption of a new law on detention would undermine refugee and migrant human rights and should, therefore, be avoided.  Detention of asylum seekers should be a measure of last resort based on proportionality and  deprivation of liberty should always be accompanied by adequate safeguards, such as individual examination, access to legal aid and the right to an effective remedy.

 

 

 

 

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

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.”