New book: Disaster Displacement and International Protection in the EU

 

 

Dr. Chiara Scissa, Department of Social and Political Sciences, University of Bologna

Photo: 2026 forest fires in Fontainebleu, by Jdkxhdjj, via Wikimedia Commons

 

New book: Disaster Displacement and International Protection in the EU. Challenges, Misconceptions, and the Way Forward (Routledge, 2026)

 

Disasters trigger over three times more displacements than conflict and violence and rank among the principal drivers of displacement worldwide. Whereas other world’s regions have reached significant achievements – including Africa with the IGAD Protocol on Free Movement of Persons recognizing free movement for IGAD citizens affected by disasters, Latin America with the 2025 Inter-American Court on Human Rights’ Advisory Opinion acknowledging the applicability of international protection in disaster contexts, and the Pacific with relevant regional and bilateral initiatives on climate mobility -, this is not the case for the European Union (EU). The EU lags behind with no common protection avenue for people displaced across borders in the context of disasters, and with only three Member States - Italy, Cyprus, and Finland – that currently offer an explicit provision to that effect.

In this book, I interrogate the asymmetry between the magnitude of the phenomenon and the poverty of the legal response in the EU, and argue that the protection gap is not attributable to a lacuna in positive law, but to the defective application and interpretation of norms already in force and restrictive asylum policies. The right path to follow would, in my opinion, not lie in the codification of a new status for the so-called “climate refugees”, a category I do not endorse, but the principled, evolutive application and interpretation of existing norms that already bind the Union and its Member States.

Central to the book is the identification of three compounding challenges that have so far contributed to hindering the recognition of protection in the context of disaster displacement in the EU: 1) the misconceptualization of disasters in legal and policy instruments; the rigid application and (sometimes controversial) interpretation of international protection norms; and 3) the deterrence paradigm increasingly endorsed by the EU and its Member States to curb access to asylum.

The first challenge: Misconceptualization of disasters.

A first major challenge, which is persistently present in relevant legal and operational EU disaster frameworks from the very outset to the latest developments in this area, concerns the reference to “natural disasters” as part of the definition. This formulation does not only contradict scientific evidence and established scholarly work in the field of disaster studies, according to which disasters are the product of hazards in combination with the social environment in which they unfold, but also undermines asylum claims based on, or associated with, disaster displacement. Indeed, where a disaster is perceived as something purely natural, and hence beyond human control, it risks creating a fictitious separation between situations attributable to human actions and those perceived as naturally occurring. Seen as the manifestations of the uncontrollable forces of nature, disasters can therefore hardly fall within the net of protection. Likewise, the attribution of State’s responsibility in disaster contexts, and the related failure to protect, is hardly explored.

The second challenge: Misinterpretation of refugee law tenets.

Closely related to the misconceptualization of disasters is the second identified challenge, namely the issue of rigid, and sometimes controversial, application and interpretation of international protection norms in the context of disaster displacement. From a careful and in-depth literature review and case law analysis, available in Chapter 2, what stems is that disaster-related asylum claims have been often, and hastily, dismissed. Respectively, refugee status is denied in this context on some recurring grounds: disasters do not amount to persecution; they disclose no nexus to a Convention ground; they do not discriminate and produce no individual harm; they cannot constitute actors of persecution; and have no intention to persecute. These propositions recur in the Commission’s own documents (2013; 2022) and in the jurisprudence of the Member States. As for subsidiary protection, this is frequently set aside due to the fact that the harm stemming from disasters is not explicitly listed among the components of serious harm pursuant to Article 15 of the Qualification Directive (now Qualification Regulation). In addition, the requirement for serious harm to stem from an intentional act or omission, which was first coined by the EU Court of Justice in M’Bodj (2014) but has no place either in EU asylum law or in the 1951 Refugee Convention, has already led national asylum judges to dismiss subsidiary protection claims. In Italy and France, for example, the combination of misconceptions surrounding the notion of disasters and challenges in applying a principled interpretation of serious harm led national courts to swiftly dismiss disaster displacement-related claims, reserving short paragraphs or even just one sentence of their judicial analysis to explain the exclusion of disaster displacement from subsidiary protection.

Finally, the book looks at the internal protection alternative (IPA) for people displaced in the context of disasters as a further protection tenet subject to fragmented and inconsistent practices among the Member States. In Austria, the relevance of disasters in the IPA assessment seems to depend on the claimant’s country of origin and the judge adjudicating the case instead of the severity of the disaster and its human rights implications on the applicant. In Nordic countries, disasters seem to have almost never been taken into account by competent authorities in the context of an IPA assessment. Hence, disasters’ integration into the IPA assessment is far from being standardized in the EU, which means that the decision on the availability of internal relocation in the claimant’s country of origin is a bit of a lottery with severe repercussions on asylum seekers coming from disaster-prone countries.

The third challenge: the logic of deterrence.

Before actually writing the book, in that phase where concepts and words are chaotically appearing on paper together with some random arrows in the attempt to make sense of everything, I realized that the first two challenges identified showed why disaster displacement is hardly recognized as a legitimate ground for protection. But that was the last stage of a complicated and often incomplete process. Actually, for people displaced in the context of disasters, it is extremely hard to even reach and get the chance to stay in the territory of the EU Member States to seek protection. This is because disasters themselves can hinder people’s arrival at destination. This is the case of thousands of migrants crossing the Mediterranean Sea in the attempt to reach Italy, who have drowned because of extreme weather events, including storms and cyclones. Likewise, asylum seekers attempting to reach the EU through the Balkan route are exposed to drowning in rivers as well as to freezing temperatures along the way and extreme cold weather deaths from hypothermia. In doing so, disasters can interact with deterrence policies preventing arrivals. Italy’s efforts to stop disembarkations in addition to disasters, which make the sea crossing perilous and relief operations unfea­sible, claimed the life of 380 people in January 2026.

At the same time, disasters can interact with deterrence policies aimed at curbing access to the asylum procedure.

The book presents emblematic examples of EU-led deterrence policies and how they interact with disasters following Gammeltoft-Hansen and Tan’s categorization. These include development cooperation, accelerated procedures based on the safe country notion, and externalization agreements. All these examples corroborate that deterrence makes it harder, if not totally unlikely, not only for disasters to be recognized, but even identified as a cause of displacement. On the contrary, deterrence policies are contributing to perpetuating its invisibility in asylum adjudication. Indeed, the result of ongoing, and progressively more restrictive, asylum pol­icies at the Union and national levels is the continued lack of attention toward disaster displacement in asylum adjudication, thus making their exclusion from protection a persistent issue.

Concluding remarks.

My aim with this book is twofold and only time will tell me if I somehow managed to get closer to it. On the one hand, I hope to make more students interested in this topic, which fascinates me and deserves further attention, especially from young and fresh minds. On the other hand, I sincerely hope this book will reach in one way or another policymakers and decisionmakers across the world, and especially in the EU, as all the described challenges have to do with decisions made at the political and judicial level. This book explains why the persistent use of the term “natural disaster” in legal texts should be definitely abandoned, describes the risks associated with superficial asylum adjudication, and warns against the alarming combination of disasters with deterrence policies for people seeking protection. May those entrusted with making, enforcing, and interpreting the law find meaningful insight within these pages - ever mindful that abstract policy carries concrete, and often indelible, consequences for human lives.

 

Download the open-access version here.

Purchase a hard copy here.

 

Fumbling towards Ecstasy? Canada as an associate member of the EU

 

Professor Steve Peers, Law School, Royal Holloway, University of London

Photo credit: Martin St-Amant, via Wikipedia Commons

“Living next to [the United States] is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt.”

-          Pierre Trudeau, former Prime Minister of Canada

 

Introduction

Can Canada become an ‘associate member’ of the EU? What might that mean, and how might a process to this end work? There are few details yet, but this blog post explores the broad parameters of the law and politics of such a possibility.

The Legal Framework

Canada is not seeking to be a Member State of the EU – a process governed by Article 49 TEU. Nor is it seeking to sign an association agreement – as referred to in Article 217 TFEU. Rather the status under discussion is that of ‘associate member’ – a concept not referred to in the EU Treaties.

However, the absence of an explicit reference to such a concept does rule out an agreement to create such a thing. EU external relations law is replete with the creation of new categories of relationship to address the political priorities of the day, such as ‘Euro-Mediterranean Agreements’, ‘Europe Agreements’ and ‘Partnership and Cooperation Agreements’, to name just some.

In fact, the absence of a formal concept of ‘associate member’ leaves the EU and Canada free to innovate both the procedure and content of their relationship. Instead of being bound by the ‘staircase’ metaphor that came to dominate EU/UK post-Brexit relations, Canada and the EU can just take the elevator – although the underlying trade-off (greater market access in return for greater alignment with the EU) is likely to remain in some form.

Unlike membership or association, the ‘associate member’ concept does not necessarily even imply a treaty; Canada and the EU can simply declare the existence of such a status at the upcoming summit. Associate membership is an unidentified legal object; but it can still be a definite political outcome.

Nevertheless, both the EU and Canada have said that they expect something concrete to develop from deepening their relationship, even if it does not have the title of ‘associate member’. Let’s look at what each of them has recently said.

Issues for negotiation

In her State of the Union speech, the EU Commission President Ursula von der Leyen stated:

We will move from CETA to an Alliance for the Future to create a common prosperity and economic security space. We will work on intelligent manufacturing. We will create a tech alliance. We will integrate defence industrial bases. We will make the Arctic a flagship joint project. We will work on energy, critical minerals and batteries. On AI, quantum, cyber and economic security.

(CETA is the existing EU/Canada free trade agreement).

In his speech to the European Parliament, Canadian Prime Minister Mark Carney said:

Canada and Europe should secure our strategic autonomy through deep cooperation in the full range of strategic capabilities, including critical minerals, defence industrial capacity, AI and compute, energy security, space, and payments.

We should move toward seamless, digital trade in non-agricultural goods and a wide range of services.

We should deepen our people-to-people ties, allowing our youth to live, work and study where they want on either side of the Atlantic.

Canadian membership of Erasmus+ can give your students, and ours, more opportunity to learn at some of the world’s top universities, to broaden their horizons, and to build lasting ties that will sustain our alliance for the future.

Canadian membership of the next generation of Horizon would allow us to pool resources, cooperate on frontier technologies, and leverage our world-class research institutes and universities.

Yesterday, President von der Leyen announced a “new European Corporation on Critical Raw Materials” to obtain and stockpile the material needed for electric cars, chips and batteries, clean technology, and defence. Canada has deposits of over 34 critical minerals, and we are among the top producers of the 10 most essential for the world’s energy transition. Our alliance can help fill Europe’s need for reliable supply, Canada’s need for advanced processing capabilities, and our common objective to build complete value chains.

Canada can contribute LNG and hydrogen at large scale to support Europe’s energy security including by developing and leveraging new port infrastructure in the High North and on our East Coast. We, in turn, can benefit from your leadership in many clean energy technologies.

We can pool new sovereign compute capacity and build more secure broadband connections between Europe and Asia via our common geography.

Canada and Europe can join forces to develop AI safety protocols, coordinate common standards, and strengthen transparency, all while developing applications so our governments and companies can serve our citizens better. 

Canada and Europe should also consider exploring an integrated market for financial services to broaden choice and reduce costs for our citizens, improve access to capital for our companies while maintaining our world-leading financial resilience.

Comparing the two, we can see that there are more details offered on the Canadian side. There are several points in common: energy, defence industries, critical minerals, AI and computing. But it is notable that Carney raises two issues not mentioned on the EU side: financial services and youth mobility.

There is no inherent reason why the various issues for further cooperation all have to addressed in a single treaty. Some of them might be addressed better by commercial negotiations between companies (supported by governments/the EU on each side), and some might be addressed by non-binding ‘soft law’ encouraging developments. The EU tends to prefer single overarching treaties, but has compromised on this goal with Switzerland (settling for a common institutional framework for some EU/Swiss treaties), and the UK (there is a single treaty, but with different rules for different parts of it; it is effectively several separate treaties wearing a single trenchcoat). Further EU/Canada developments could follow either model.   

On one issue in particular – youth mobility – the obvious parallel is with EU/UK relations, where the EU seeks to negotiate its first youth mobility treaty (EU Member States have a number of such arrangements already, including agreements with Canada). Since the UK/EU negotiations have not concluded yet, there is no final template which could just be copied; and in any event, there is no reason for such arrangements to be identical (the UK’s youth mobility schemes differ greatly). Despite the existence of schemes between Canada and many Member States already, there could be added value in extending these schemes for longer than one year, or (as the EU has demanded from the UK) agreeing equal treatment in tuition fees.

It is possible that individual future treaties between the EU and Canada will raise legal issues on both sides: tuition fees, for instance, could fall within provincial jurisdiction on the Canadian side, and the EU courts have twice been asked already about the compatibility of EU/Canada treaties with EU law – the investment provisions of the EU/Canada free trade agreement, and the data protection rules in the EU/Canada passenger name records treaty.  (The various processes for referring issues to the Supreme Court of Canada to resolve their constitutionality broadly resemble the process of asking the CJEU to rule on whether planned treaties are compatible with EU law, set out in Article 218 TFEU).

However, one striking feature of EU external relations is that despite their legal complexity, the EU usually gets to where it wants to go in the end, even if (as with the EU/Canada passenger name records treaty) a planned treaty has to be amended to be compatible with EU law. (Member States do not have a veto on all treaties with non-EU countries; this depends on their subject-matter, and economic issues such as trade are subject mostly to qualified majority voting. Nor do Member States always have to be parties to treaties alongside the EU).

The broader context

Although neither the Commission President nor the Canadian Prime Minister mentioned the elephant by name, the underlying dynamic of the EU and Canada seeking a closer relationship is the current administration of the United States – which is far from friendly or even-tempered towards Canada, the EU, or most of the rest of the world (other than Putin’s Russia and North Korea). But despite the silence, the listeners to the speeches in the European Parliament – and the broader audience outside – knew exactly who was being referred to. As a great Canadian once sang, everybody knows that the dice are loaded. And yet, Trump might still manage to bankrupt another casino.

There’s a historical resonance to this conflict too. Growing up in Canada, I was never far from a War of 1812 battlefield; studying Canadian history, it is striking how much of the basic foundations of the Canadian state developed as a reaction to threats from the United States. In recent decades, characterised by alliance and friendship between the two countries, this history of conflict began to look ancient, but now the old threats are new again. Donald Trump has never met an ally he didn’t hate.

Further development of EU/Canada relations might face legal and political complications; after all, several Member States have still not ratified CETA (it’s being applied provisionally). But any differences of opinion will not result in the EU threatening annexation or economic coercion, renaming lakes, or posting violent memes about Canada on social media. Both sides are free to develop their relationships elsewhere (as they are doing). And if Trump – as threatened – imposes tariffs against the EU as a result of its friendship with Canada, the EU can quickly retaliate.

As for less aggressive partners, it’s not clear just how close Canada’s relations with the EU might become, for instance compared to Norway, Switzerland or the UK. The plans seem to fall short of full participation in the internal market or free movement of people. On youth mobility in particular, though, it’s possible that Canada might leapfrog the UK, given the slow pace of UK/EU talks. As another great Canadian once sang, this would be ironic indeed: the good advice that the UK just didn’t take on Brexit.

How the New Appeal Filtering Mechanism in the EU Courts Affects Judicial Review of CSDP Missions

 

Antje Kunst*

Photo credit: Lucalupe, via WikimediaCommons

 

Introduction

In 2024, a new procedural requirement was introduced whereby appeals against General Court judgments delivered in proceedings brought under Article 272 TFEU (jurisdiction to rule on arbitration clauses in contracts concluded by or on behalf of the EU), are subject to an appeal filtering mechanism established by Article 58a of the Statute of the CJEU.

Since 1 September 2024, parties seeking to appeal a General Court judgment in an action brought under Article 272 TFEU must demonstrate that their appeal raises ‘an issue that is significant with respect to the unity, consistency, or development of Union law’. By contrast, no such admissibility requirement applies to appeals against judgments of the General Court in actions brought under Article 263 TFEU (actions for annulment), which may be pursued by staff seconded to Common Security and Defence Policy (CSDP) missions or in actions brought under Article 270 TFEU (staff cases).

The implications of the appeal filtering mechanism are particularly significant for staff serving in CSDP missions as contracted staff. In the absence of a EU Staff Regulations framework comparable to that applicable to ordinary EU civil servants, such staff cannot bring employment-related disputes under Article 270 TFEU. Instead, they must rely on an arbitration clause contained in their employment contracts, with Article 272 TFEU providing the procedural basis for bringing such disputes before the EU courts.

This blog argues that extending the Article 58a appeal filter to cases brought under Article 272 TFEU does more than reduce the workload of the Court of Justice. The reform further restricts, for contracted staff serving in CSDP missions the opportunities to obtain judicial review by the Court of Justice, in an area where access to judicial review is already subject to constraints, including those arising from Article 275  TFEU and Article 24(1) TEU.

The amendment therefore raises a broader constitutional question: can the  objective of reducing the Court’s workload legitimately come at the expense of effective judicial protection and meaningful access to judicial remedies for contracted staff serving in CSDP missions? The reform also raises concerns about equal treatment. It creates a distinction between, on the one hand ordinary EU civil servants and seconded staff serving in CSDP missions who have the possibility of appealing to the Court of Justice, and, on the other hand, contracted staff, who are denied equivalent access to appellate review.

Key Aspects of the New Requirement

Pursuant to the 2024 amendment to Article 58a of the Statute an appeal against the General Court in proceedings concerning ‘the performance of a contract containing an arbitration clause, within the meaning of Article 272 of the [TFEU]’ may proceed only if the Court of Justice first grants leave to appeal.

The admissibility threshold for appeals by contracted staff serving in CSDP missions is demanding. An appellant must demonstrate that the appeal raises ‘an issue that is significant with respect to the unity, consistency or development of Union law’. It is therefore no longer sufficient to argue that the General Court committed an error in its interpretation of the law or assessment of the facts in the individual case. Instead, the appellant must establish that the issue extends the interests of the individual litigant and demonstrate why its resolution matters for the EU legal order as a whole.

The appeal therefore requires a form of ‘second-level’ justification: first, the appellant must identify alleged errors of law in the judgment, second, and critically, the appellant must explain why that error raises an issue significant for the unity, consistency or development of Union law. (see the Court Order of 29 April 2025 in SC v Eulex Kosovo (Case C-881/24), the first case to which the new appeal filter was applied). In this respect the test is comparable to the approach of the UK Supreme Court which filters appeals according to whether they raise an ‘arguable point of law of general public importance’.

The Court of Justice determines whether the conditions laid down in Article 58a of the Statute are satisfied by means of a reasoned order rather than a judgment. Where leave to appeal is refused, the judgment of the General Court becomes final, thereby bringing the litigation to an end without substantive review by the Court of Justice.

What raises a wider issue?

In employment disputes involving contracted staff of CSDP missions, appellants must identify a legal issue that extends beyond the particular employment relationship or factual circumstances of the CSDP mission concerned. This requirement may be met where an appeal raises, for example, a question  of EU law that could affect numerous contracted staff across different CSDP missions; where existing case-law is uncertain or inconsistent; or where clarification by the Court of Justice would contribute to  a coherent and consistent body of EU law applicable to all staff serving in the Union.

An appellant might be able to convince the Court that its interpretation of a fundamental right in a CSDP employment dispute could have implications beyond that specific context and provide guidance for future disputes in other areas of EU  law, such as EU restrictive measures, public procurement, competition or migration and asylum.  This may include disputes involving other EU bodies, missions or other actors subject to EU law. (see in this respect paras. 22 and 24 of the Court Order 29 April 2025 in SC v Eulex Kosovo (Case C-881/24))

Furthermore, an appellant might be able to successfully argue that the case raises a question of principle concerning the scope of the Court’s jurisdiction under Articles 24 (1) TEU and 275 TFEU, in particular whether and to what extent the Common Foreign Security Policy (CFSP) limitations on judicial review apply to employment-related decisions in CSDP missions. This question could have implications beyond the individual dispute, including for comparable cases involving other CSDP missions, EU bodies, or categories of EU personnel. It could also have broader implications for the principle of effective judicial protection under EU law, particularly where the contested measure affects fundamental rights or other rights protected by EU law.

Rationale for an appeal filter related to decisions of Boards of Appeal

The appeal filtering mechanism was first introduced in 2019 for appeals brought before the Court of Justice against judgments of the General Court concerning decisions of the Boards of Appeal (BoAs) of certain EU offices and agencies.

The EU legislature focussed primarily on the EU agencies with powers over intellectual property rights, plant variety rights, chemicals regulation and aviation safety (EUIPO, CPVO, ECHA and EASA). The rationale was that decisions in these areas had already undergone administrative review by a specialised BoA and judicial review by the General Court, while a significant number of appeals were manifestly inadmissible or unfounded (see here).

In practice, this admissibility requirement has constituted a substantial threshold, with the Court of Justice permitting only a limited number of appeals to proceed beyond the initial filtering stage.

Rationale for an appeal filter related to Article 272 TFEU disputes

The 2024 extension of the Article 58a filtering mechanism to appeals concerning Article 272 disputes was justified primarily by considerations of judicial efficiency. The legislator’s rationale was that such disputes most frequently require the General Court to apply, to the substance of the dispute, the national law to which the arbitration clause refers. (see here) Such appeals would generally be less likely to raise issues of EU law.

A CSDP employment dispute is an atypical Article 272 TFEU dispute

A CSDP employment dispute will rarely require the application of national law (see  JF v EUCAP Somalia) and is not a typical Article 272 TFEU dispute. Disputes involving contracted staff of CSDP missions often involve mission-specific instruments, such as Standard Operating Procedures (SOPs) and Operation Plans (OPLANs), as well as the analogous application of certain provisions of the EU Staff Regulations (see the judgment in Montanari v Eucap Sahel Niger). They may also involve the application of general principles of EU law and fundamental rights to contractual disputes (see JF v EUCAP Somalia), as well as questions concerning the scope of the Court of Justice’s jurisdiction in the CFSP context (see H v Council and Others, even if a seconded CSDP staff case ). This makes it particularly important to ensure that restrictions on access to an appeal before the Court of Justice do not prevent the development of authoritative guidance on questions affecting 1300 civilian staff working in CSDP missions, especially since only contracted staff, and not their seconded colleagues, are required to seek permission to appeal when challenging General Court judgments.

Where the EU Staff Regulations do not apply to such staff, the case law has established that the applicable legal framework derives primarily from the employment contract and mission specific instruments such as SOPs, supplemented, where relevant, by the analogous application of certain provisions of the EU Staff Regulations as well as certain general principles of EU law and the Charter of Fundamental Rights, as illustrated by JF v EUCAP Somalia.

Precisely because the legal framework governing CSDP contracted staff remains fragmented and continues to evolve, there is a strong argument that effective appellate review is of particular importance in this area.

Moreover, an appeal to the Court of Justice is not necessarily merely a second level of review. It may provide an important opportunity for the Court to give authoritative clarification of unresolved jurisdictional and constitutional questions concerning the scope of judicial protection in the CFSP context.

Conclusion

The appeal-filtering mechanism introduced by Article 58a of the Statute of the Court of Justice places international contracted staff serving in CSDP missions at a significant disadvantage compared with other categories of EU personnel in terms of access to appellate judicial review. EU staff subject to the EU Staff Regulations may bring claims under Article 270 TFEU, while seconded CSDP staff can bring actions under Article 263 TFEU. By contrast, international contracted staff whose disputes fall under Article 272 TFEU face an additional – and potentially insurmountable – hurdle when challenging a General Court judgment before the Court of Justice.

This disadvantage is all the more significant because the legal framework governing employment within CSDP missions remains fragmented and continues to develop. Restricting access to the Court of Justice therefore risks limiting not only the right of individuals to effective judicial protection, but also the development of a coherent and authoritative body of case law on employment within CSDP missions.

The Court of Justice can do little to remedy the disadvantage created by Article 58a of the Statute itself; addressing this issue is a matter for the EU legislature that should not be delayed.

 

*Antje Kunst is an international lawyer and barrister of Garden Court North Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to fundamental rights within the CFSP and other fields including staff cases. She has appeared in numerous cases before both the Court of Justice and the General Court of the Court of Justice of the European Union.  She acted as Counsel for JF in JF v EUCAP Somalia, Case 194/20. She represents SC in SC v Eulex Kosovo, Case C-881/22, and obtained the Court Order of 29 April 2025.

 

With greater power comes no extra accountability: the proposed new Europol Regulation

 

Wannes Bellaert, PhD researcher and academic assistant, Ghent University

Photo credit: OSeveno, via Wikimedia Commons

Once again a new Europol legal framework

On the 24^th of June 2026, the European Commission proposed a new legal framework for Europol (i.e. the European Union Agency for Law Enforcement Cooperation). As reflected in the preparatory documents and the proposal itself, the intentions are clear: extending Europol’s competencies, while refraining from remedying existing shortcomings in Europol’s accountability framework.

Back then, when candidate Commission President Von Der Leyen suggested making Europol a “truly operational police agency”, uncertainty reigned over what she intended. Both the preparatory documents and the proposal demonstrate that a European FBI is still far off. Nonetheless, the European Commission envisages an expansion and codification of several elements. As regards the expansion, the European Commission envisages expanding the scope of cooperation with private parties, Europol’s Prüm competencies (ie a bigger role in the exchange of specific types of data for criminal law purposes), Europol’s interconnectivity with Member States, the obligation(s) to provide Europol data, and Europol’s presence in Member States. All of the preceding happens without remedying the existing accountability shortcomings in Europol’s legal framework.

Strengthening its competencies …

The 2016 Europol Regulation envisioned some restricted cooperation with private parties. Following the 2022 amending Europol Regulation, Europol could exchange personal data with private parties and request data via the national competent authorities to combat terrorism, extremism and online child sexual abuse material. With its proposal, the Commission proposes an overhaul and extension of these competencies to all crime areas for which Europol is competent and limiting the existing restrictions (absence of “upon their request”). In combination with Europol’s Open Source Intelligence (OSINT) collection, this could enable Europol to collect a vast amount of data, either without or with only limited involvement of the Member States. While the collection of this data is not necessarily a problem (as long as the legal framework is respected), Europol cannot conduct its own investigations, leaving open the question of where this leads.

The 2024 Prüm II Regulation enables Europol to consult national police databases when receiving information from third countries. Even though the framework is not yet operational, the Commission already proposes to extend it to data from Member States. With this extension, Europol should become more efficient and effective. Why the European Commission has refrained from offering Europol a general ability to check (including for data from private parties and EU agencies) remains unclear. National competent authorities can easily consult Prüm II, thereby limiting the purpose of extended Europol access rights based on their information. On the contrary, allowing Europol to use Prüm II based on information from private parties and EU agencies could be beneficial, as it would enable Europol to identify interested Member States. Extending Europol’s access rights for Prüm II would still leave the overarching system incomplete as Europol has no access rights to the European Criminal Record Information System (ECRIS).

With its proposal, the Commission seeks to strengthen the interconnectivity between the Member States and Europol by establishing a Europol Cloud Infrastructure. It is intended to support Member States, EU entities and third countries to access Europol’s tools, collaborative environments and other operational and analytical capabilities, including the Joint Operational Analysis Cases (JOACs). Additionally, the Europol Cloud Infrastructure should enable Member States to connect their national system to it through the EU Police Digital Identity. From the proposal, it cannot be deduced how this system will operate. It is unclear what the connection between the national system and the Europol Cloud will entail. Likewise, the impact for JOAC’s remains unclear, as they also remain part of the Europol Analytical Environment. Hence, Member States can have different JOACs in different environments. Furthermore, following the legal abolition of Europol’s pre-determined data systems (e.g. EIS), Europol created a so-called “data lake”. How this “data lake” will interact with the Europol Cloud Infrastructure remains uncertain.

Another interesting point is the obligation to provide Europol with information. For a very long time, the Europol Regulation required Member States only to provide Europol with the “necessary information”. Following the 2005 Council Decision on Terrorism, they should provide Europol with specific information on terrorism. Under the 2025 amending Europol Regulation, Europol should receive information from Member States when participating in Operational Task Forces. However, this new proposal raises several problems. While, in principle, the general obligation to provide Europol with all “necessary” information is retained, the proposed Article 38 on Europol’s cross-checking service obliges Member States to provide the service with “any data that relates to forms of crime falling within the scope of Europol’s competence”. Without any reference to the earlier necessary obligation, this entails a new obligation. Additionally, immigration liaison officers “shall provide Europol with relevant information”. This seems to diverge from the earlier “necessary” obligation once again. Furthermore, the Operational Task Forces should “ensure the continuous and structured exchange of all relevant information”. As a result, three different obligations exist concerning the provision of data. Most important is the first problem: should Member States provide Europol with all information, or only all information concerning crimes for which the Member States find it “necessary”?

Finally, one of the most interesting developments is the “support offices”. It is a misjudgement to compare these with local FBI offices; more apt is it to see them as permanent mobile offices, which Europol currently uses on action days. The Commission proposes to have Europol staff as liaison officers in the Member States “to ensure appropriate uptake by Member States of Europol’s support”. While this concerns Europol staff (thus EU staff), these should act under the responsibility of both Europol and the Member States. The Europol Management Board will set out the division of responsibilities, yet also decide on the organisation and functioning of these support offices. Additionally, the European Commission proposes provisions on the deployment of Europol staff, yet without any actual limits, leaving it open for almost all tasks. Interestingly, in this perspective, is the inclusion of: “to ensure that the outputs produced through operational support … may be used as evidence in national investigative and judicial proceedings”. If adopted, this would link deployment of Europol staff to the production of evidence, yet would not remedy the non-inclusion of the rapporteur’s failed attempt to include a similar provision in the 2025 amending Europol Regulation.

... but leaving its accountability framework untouched

When all preceding elements are combined, Europol’s competencies are clearly expanding once again. Europol should take up more tasks, but most interestingly, its ability to provide Member States with instruments and tools will significantly expand. Still, the number of and the competencies of its accountability forums have not been significantly revised in the proposal. While this could be considered a shortcoming of the European Commission, it is not. The biggest shortcoming is the European Commission’s reluctance to address existing shortcomings in Europol’s legal framework.

Undeniably, the European Data Protection Supervisor (EDPS) and Europol’s data protection officer (DPO) have a strong position to hold Europol accountable for its data processing, yet, unfortunately, without requirements concerning its staffing. Even though the FRO is offered formal independence in the proposal, its tasks remain limited, while these could be expanded and it could be provided with stronger tools to enhance its point of view. Furthermore, the annual reports of Europol’s fundamental rights officer (FRO) and DPO are not provided to the JPSG or the European Parliament. These reports should be made available on a confidential basis to these forums to enable them to be properly informed about Europol’s conduct.

Similarly, the JPSGs' and the European Parliament’s tasks have remained unchanged, without formal ability to sanction Europol or its executive director, besides the discharge procedure for the European Parliament. Meanwhile, the European Commission has proposed to strengthen its own position regarding Europol’s Executive Director. Why not the other way around? Why not allow the joint parliamentary scrutiny group (JPSG) and the European Parliament to propose the dismissal of Europol’s Executive Director? If so, the European Parliament should have the competence to request the Executive Director’s attendance at a public hearing, in contrast to the European Commission’s and the Management Board’s closed-door session. Furthermore, in the proposal, the Council’s powers are limited in comparison to the current legal framework, as it would no longer be able to appoint or dismiss the Executive Director. Europol’s Internal Investigation Service is not offered a specific legal basis either. The inclusion thereof should go alongside the inclusion of specific competencies to combat fraud and corruption within Europol (e.g. access rights to documents).

If all proposed changes are adopted, Europol’s responsibility and autonomy to tackle crime can no longer be ignored or denied. Already, Members of the German Bundestag argue that Europol is a partner, and not merely a supportive entity. As a partner, one should take responsibility and be held accountable. Therefore, besides the previously suggested changes, the immunity of Europol staff cannot be retained when performing similar tasks, as when Europol staff is part of a Joint Investigation Team (JIT), particularly given the divided responsibility (see Supra). As a result, a general waiver should be included in the EU legal framework, and a specific waiver procedure should be included in the Europol Regulation (in conformity with existing CJEU case law). Similarly, the liability of Europol and its staff should be clarified to ensure proper criminal and civil liability.

Additionally, as previously mentioned, the European Commission’s proposal falls short of offering rules concerning the testimony of Europol staff in national courts. The preceding is essential, as in a trial in Malta conflicts arose concerning this practice. The Union legislator should include specific obligations for Europol staff, e.g. when they can refuse to answer a judge, when they can refuse to appear, what information they can disclose and subject to what rules (EU or national rules).

Finally, the new proposal contains no rules concerning the use of information used as evidence in court. The 2023 Exchange of Information Directive copies the phrase of its predecessor (i.e. the Swedish Framework Decision) requiring prior approval from the providing Member State to use information as evidence, but the European Commission falls short of including rules to prevent the Europol Regulation being used to circumvent the 2023 Directive, especially with SIENA becoming the regular instrument for exchanging information. Furthermore, it offers no rules concerning the use of evidence collected as part of a JIT, even though rules have existed since the Naples II convention on customs cooperation.

More power, not more control, just the needed control

If the Union legislator were to adopt this European Commission proposal, Europol would significantly expand its competencies, yet remain a supportive agency without executive powers. Still, concerning some competencies, questions arise about their use. Concerning other competencies, the underlying relationship should be clarified to ensure Europol has a clear legal framework without contradictions. While it is common to argue for increased control over Europol when competencies expand, no additional accountability obligations are required. Europol has a strong accountability framework when considering the powers of the EDPS and its DPO. Nevertheless, shortcomings in its accountability framework exist that should be remedied to ensure Europol is held properly accountable.

What happens if a UK government removes benefits from EU citizens in breach of the withdrawal agreement?

 

 

Professor Steve Peers, Law School, Royal Holloway University of London

 

Photo credit: Martin Robson, via Wikimedia Commons

 

Recently the Reform Party proposed that in government it would withdraw benefits from all non-UK citizens, including from those EU citizens who had moved to the UK before the end of 2020. It acknowledged that this would breach the Brexit withdrawal agreement (for an annotated text of the rules on EU and UK citizens’ rights under the agreement, see here, particularly Article 15).

 

Legally the EU response if the UK breached the withdrawal agreement on this issue (I’m assuming the Reform government would amend UK legislation as needed, to ensure that the breach was valid as domestic law) would be to challenge it in the arbitration process which the withdrawal agreement set up. (For an annotated text of the dispute settlement rules, see here). A dispute can be settled politically; if not settled, it goes to arbitration. An arbitration decision is binding, so if a party is found in breach of the withdrawal agreement, it is legally obliged to comply with the ruling.

 

But what if it does not comply with the ruling? The key provision is Article 178, which provides first of all that fines can be imposed upon the party that remains in breach of the treaty despite an arbitration ruling. Article 178 goes on to refer to possible additional retaliation for a continuing breach, but (in paragraph 2(a)) it says that such retaliation cannot concern Part Two of the withdrawal agreement, ie the citizens’ rights provisions. Therefore, the EU cannot respond to the UK breach of EU citizens’ rights by taking UK citizens’ reciprocal rights away. Instead, Article 178 refers to possible retaliation under other agreements (paragraph 2(b)), which brings us to the Trade and Cooperation Agreement (TCA).

 

The TCA has a separate set of dispute settlement rules, which I have annotated here. The key provision on links with the withdrawal agreement is Article 749(4) of the TCA. It states that a continuing breach of the withdrawal agreement can also result in suspension of parts of the TCA, ie tariffs on goods or suspension of other provisions of the agreement (subject again to some limits on the subject-matter of retaliation, ie the retaliation cannot affect social security).

 

The retaliation must be proportionate though, and if the party in breach argues that the amount of that suspension is disproportionate, the arbitration panel can be recalled to rule on the point (Article 178(3) of the withdrawal agreement).

 

One possible form of retaliation which would arguably be proportionate would be to reimpose tariffs equal to the amount of benefits EU citizens would be losing as a result of the breach, to which they would otherwise be entitled under the withdrawal agreement. So if the breach of the agreement caused EU citizens to lose €1 billion in benefits, UK goods exports would face €1 billion in tariffs. Under the World Trade Organisation, in comparable cases, the EU has targeted high profile exports from its trading partner in breach of the rules; for the UK, that might mean higher tariffs in particular on Scottish salmon or whisky, or Jaguar cars. To be clear, this is speculation – the EU might prefer another type of retaliation which is allowed under the agreements. And the EU would be charging its usual tariff rate for countries which it does not have a free trade deal with, which would only mean a big increase for some products.

 

It’s possible it wouldn’t get to this stage: the EU might decide to negotiate changes to the withdrawal agreement; indeed the Reform Party document states that it will ‘renegotiate’ the treaty. But a treaty can only be renegotiated if all parties agree; and it seems very unlikely politically that the EU would agree, given the priority which it placed on the issue before. (On the EU side, an amendment would need to be agreed by a qualified majority of Member States, having been proposed by the Commission, after consent of the European Parliament).

 

As for additional possible sanctions, the EU might, for instance, suspend talks on other issues with the UK. It could even suspend or terminate the entire TCA, although arguably the rule on proportionality of retaliation applies here. In practice, during prior disputes with the UK, the EU has preferred the negotiation and dispute settlement route rather than escalation: both the EU and the UK have previously triggered disputes under the withdrawal agreement and the later Trade and Cooperation Agreement, although only one dispute has got as far as an arbitration decision.

 

For instance, when the EU disputed the UK’s application of (what was then) the Northern Ireland protocol to the withdrawal agreement, it suspended talks on the UK’s participation in EU research programmes and began dispute settlement proceedings, but it put the latter on hold pending negotiations, which eventually resulted in a revised version of the protocol known as the Windsor Framework – after Liz Truss lost her nail-biting contest with a lettuce.

 

As for terminating the whole withdrawal agreement, as discussed further here, there is no termination clause (apart from the trade aspects of the Windsor Framework, subject to certain conditions), and in any event the EU would have no interest in terminating the basis for the Windsor Framework and the protection of its citizens’ rights. Nor does a breach of a treaty automatically terminate it, under international law – which has a whole Latin phrase (pacta sunt servanda) for the importance of upholding treaties. (Though to be fair, international law has a Latin phrase for nearly everything)

 

Anyway, as has been pointed out, EU citizens might choose to apply for UK citizenship before any new UK rules took effect.

 

All of this points to a policy that, on this point at least, seems as ill-thought-through as Mr Farage’s decision not to declare the significant gifts he received shortly before becoming an MP, including those from a convicted money-launderer.