Emilio De Capitani
In the coming days the European Council will debate and adopt the long awaited Guidelines which will shape the future of the EU's Area of Freedom, Security and Justice for forthcoming years. These guidelines follow the end of the current Stockholm Programme (2009-2014) and come near the end of the last transitional period for the measures adopted before the entry into force of the Lisbon Treaty on police and judicial cooperation in criminal matters (what remains of the former intergovernmental 'third pillar' cooperation).
Regrettably the draft European Council Conclusions which have been circulated (see the Annex below) and the programme of the incoming “trio” Presidencies (Italian, Latvian and Luxembourg) which will implement them in the next 18 months confirm the worst provisions detailed in our previous post on this issue.
If anyone was searching for proof that European Strategies lack political vision and are a collection of bureaucratic and diplomatic choices, he or she will find in these documents the confirmation of this thesis.
The emphasis of the European Council on the external dimension of the justice and home affairs polices by privileging soft law instruments such as the Global Approach on Migration or instruments such as mobility partnerships confirm two emerging trends since the entry into force of the Lisbon Treaty :
- to transfer to the European Council the main EU political choices in the last area where the treaties still do not grant and effective parliamentary and judicial control.
- to continue to avoid legally binding measures on which solidarity mechanisms can be established (Schengen, Frontex, and Eurosur being the exceptions which confirm the rule).
Rhetorical declarations aside, the draft European Council guidelines confirm the choice for general (and generic) strategies such as the Internal security strategy or the anti-drugs strategy which are adopted without any debate between the European Council members nor with the European Parliament.
These Strategies should then be implemented by the so called “Policy Cycle” where EU agencies and the Member States representatives - instead of verifying their consistency with national internal security strategies deciding which areas the EU's intervention could add value in - pick and choose (on voluntary basis) some priorities which are approved without debate (as point A) by their ministers without (again) any European or national parliamentary debate.
Where choices and priorities are instead very clearly stated is on the role of the EU Agencies (Europol, Eurojust, EASO..) and bodies (the Anti Terrorism Coordinator) or where it is decided to go on with the establishment of an ambitious technocratic project such as the "smart borders" system (the feasibility of which is still to be proved even in the United States) or by creating an entry-exit system for third country nationals to control better the problems of the "over stayers" (those who remain after their initial permitted period of stay runs out) which apparently is one of the most dangerous threats to the EU. Needless to say that this idea is not new as it was raised by the US Congress years ago and was considered “silly” in the US also by the former Homeland Security Secretary Chertoff under the BUSH administration.
Even worse, both the European Council draft Conclusions and the trio Presidency programme insist as one of their big priorities is the establishment of a "bona fide traveller" system which will discriminate between one traveller and another on the basis of de facto arbitrary criteria. They also reinstate their commitment to the creation of a European passenger name record (PNR) system.
These projects have in common the rather paranoic idea that any traveller is a potential danger. This is appalling in an European Union where there is still no permanent connection between the criminal records of the Member States, so that information on real criminals can be shared and where a terrorist (like the author of the attack to Jewish Museum in Brussels) can freely circulate even after been checked twice as a dangerous person on the Schengen information System.
Selling out, for a false sense of security, the real fundamental rights of EU citizens, cannot be the real answer to the threats the EU will face in the coming years.
These inconsistencies can be solved by overcoming the 'silo' approach inside and between the MS and by better framing with a legislative measure the policy cooperation between the Member States (which still do not trust each other). True efficiency should then be measured if the threats are really supranational.
Even a project like PNR could have its (crazy) logic if somewhere in Europe there were a central intelligence system which could filter these data against a massive intelligence analysis and profile, as happens in the USA. But as it has been designed, PNR will be only a policy laundering exercise where the European Union legislation is adopted to justify the collection of massive personal data at national level. Should we remember that only on April 8th the Data retention directive, which followed the same logic, was annulled by the CJEU as a clear violation of the proportionality principle and of Articles 7 and 8 of the EU Charter?
The point is that selling out the personal data of EU citizens appears to the European Council less costly than building a real binding framework for police cooperation on the basis of Article 87 of the TFEU. The proof is given by the new Europol whose proposed legal basis (after amendments during negotiations) makes no more reference to Article 87 TFEU and which does not compel the Member States to share their security related informations.
These being the worrying projects on the European Council and Council side one can only hope that the newly elected European Parliament, in its July session, will challenge them and take the lead for a new alternative and legally sound policy which can shape in the next legislature an European area of Freedom, Security and Justice where the citizens' needs and not the administrations will be the real compass.
Barnard & Peers: chapter 25, chapter 26
Annex - draft Guidelines
1.
One of the key objectives of the Union is to build an area
of freedom, security and justice without internal borders, with full respect
for fundamental rights. To this end, coherent policy measures need to be taken
with respect to asylum, immigration, borders, police and judicial cooperation.
2.
All the dimensions of a Europe that protects its
citizens and offers effective rights to people inside and outside the Union are
interlinked. The success or failure in one field depends on the performance in
the other fields as well as on synergies with related policy areas. The answer to many of the challenges in the
area of freedom, security and justice lies in relations with third countries,
which calls for improving the link between the EU’s internal and external
policies. This has to be reflected in the internal organisation of the EU
institutions and bodies. Coordination with and within the Member States should
be stepped up.
3.
Building on the past programmes, the overall priority
is now to consistently transpose, effectively implement and consolidate the
legal instruments and policy measures in place. Intensifying operational
cooperation, enhancing the role of the different EU agencies and ensuring the
strategic use of EU funds will be key. In further developing the area of
freedom, security and justice over the next years, it will be crucial to ensure
the protection of fundamental rights, including data protection, whilst
addressing security concerns, also in relations with third countries, and to
adopt a strong EU General Data Protection framework by 2015.
4.
Faced with challenges such as instability in many parts
of the world as well as global demographic trends, an ageing population and
skills shortages in Europe, the Union needs an efficient and well-managed migration
and asylum policy. A comprehensive approach is required, optimizing the
benefits of legal migration and offering protection to those in need while
tackling irregular migration resolutely.
5.
To remain an attractive destination for talents and
skills, Europe must compete in the global race for talent. Strategies to
maximise the opportunities of legal migration should be developed, including the
streamlining of existing rules and a dialogue with the business community. The
Union should also support Member States' efforts for active integration
policies which foster social cohesion and economic dynamism.
6.
The Union's commitment to international protection
requires a strong European asylum policy based on the Treaty's principles of
solidarity and responsibility. The full transposition and effective
implementation of the Common European Asylum System (CEAS) is an absolute
priority. This should result in high common standards and stronger cooperation,
creating a level playing field where asylum seekers are given the same
procedural guarantees and protection throughout the Union. It should go hand in
hand with a reinforced role of the European Asylum Support Office (EASO),
particularly in promoting the uniform application of the acquis. Converging
practices will enhance mutual trust and allow to move to future next steps,
including mutual recognition of asylum decisions.
7.
Addressing
the root causes of irregular migration flows is an essential part of the EU
migration policy. It is imperative to avoid the loss of lives of migrants
undertaking hazardous journeys as well as to prevent and reduce irregular
migration. A sustainable solution can only be found by intensifying cooperation
with countries of origin and transit. Migration policies must become a much
stronger integral part of the Union's external and development policies, applying
the more for more principle and building on the Global Approach to Migration
and Mobility. The focus should be on the following elements:
- strengthening
and expanding Regional Protection Programmes, in particular in the Horn of
Africa, in close collaboration with UNHCR. In view of the protracted crisis in
Syria, increase contributions to global resettlement efforts;
- addressing
smuggling and trafficking in human beings more forcefully, with a focus on
priority countries and routes. Particular attention should go at present to the
situation in Eritrea and the Sinai;
- establishing
an effective common return policy and enforcement of readmission agreements;
- fully
implementing the actions identified by the Task Force Mediterranean.
8.
The establishment of the Schengen zone, allowing
people to travel without internal border controls, and the increasing numbers
of people travelling to the EU require efficient management of the EU's
external borders to ensure strong protection. This is in the first place the
role of the Member States, which must fully take their responsibilities. At the
same time the Union must mobilize all the tools at its disposal to support them
in this task. To this end:
- the integrated
management of the external borders should be modernised to ensure smart border
management with an entry-exit system and registered travellers programme and
helped by the new Agency for Large Scale IT systems (EU-LISA);
- Frontex, spearheading European solidarity in the
area of border control, should reinforce its activities in terms of operational
assistance and increase its reactivity towards rapid evolutions in migration
flows, making full use of the new European Border Surveillance System EUROSUR;
- the possibility of setting up a European System
of Border Guards to enhance the control and surveillance capabilities at our
external borders should be explored.
At the same time, the common visa policy needs to be modernised by
facilitating legitimate travelling while maintaining a high level of security
and implementing the new Schengen governance system.
9.
It is essential to guarantee a genuine area of security
to European citizens by preventing and combatting organised crime, human
trafficking and corruption. At the same time, an effective EU Counter terrorism
policy is needed, whereby all relevant actors work closely together,
integrating the internal and external aspects of the fight against terrorism. In
this context, the European Council reaffirms the role of the EU Counter
Terrorism Coordinator. In its fight against organised crime and terrorism, the
Union should back the national authorities by mobilising all instruments of
judicial and police cooperation, with a reinforced coordination role for
Europol and Eurojust, including through:
- the review of the internal security strategy;
- the improvement of cross-border information
exchanges, including on criminal records;
- the development of a comprehensive approach to
cybersecurity and cybercrime;
- the prevention of radicalisation and extremism
and addressing the phenomenon of foreign fighters, including through a legal
instrument allowing for EU wide alerts.
10.
The smooth functioning of a true European area
of justice with respect of the different legal systems and traditions of the
Member States is vital for the EU. In this regard, mutual trust in each other's
justice systems should be further enhanced. A sound European justice
policy will contribute to economic growth by helping businesses and consumers
to benefit from a reliable
business environment within the internal market. Further action is required to:
- promote the consistency and clarity of EU
legislation for citizens and businesses;
-simplify access to justice; promote effective
remedies and use of technological innovations including the use of
e-justice;
- examine the reinforcement of the rights of
persons, notably vulnerable persons, in civil procedures to facilitate
enforcement of judgements in family law and in civil and commercial matters;
- enhance mutual recognition of decisions and
judgments in civil and criminal matters;
- reinforce exchanges of information between the
authorities of the Member States;
- fight fraudulent behaviour and damages to the EU
budget by advancing negotiations on the European Public Prosecutor's Office;
- facilitate cross-border activities and
operational cooperation;
- enhance training for practitioners;
- mobilise the expertise of relevant EU agencies
such as Eurojust and the Fundamental Rights Agency (FRA).
11.
As one of the fundamental freedoms of the European
Union, the right of EU citizens to move freely and reside and work in other
Member States needs to be protected, including against possible abuse or
fraudulent claims.
12.
The European
Council calls on the EU institutions and the Member States to ensure the
appropriate legislative and operational follow-up to these guidelines and will
hold a mid-term review in 2017.
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