The new guidelines for the Area of Freedom, Security and Justice: some critical comments

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. 

The next Justice and Home Affairs Programme: everything changed, so nothing can change?

By Henri Labayle and Emilio De Capitani 

The Council Presidency has started sailing toward the next phase of the EU's Area of Freedom, Security and Justice. However, "if a man does not know what port he is steering for, no wind is favourable to him" (Seneca) 

Soon to be debated by Coreper (the Member States’ representatives to the EU), the Greek Council Presidency proposals for the future European Council guidelines on the post-Stockholm Programme in the Area of Freedom, Security and Justice (AFSJ) are quite disappointing , if not disturbing.  Back in Tampere in 1999, the European Council (the heads of state and government of Member States) succeeded in the double challenge of framing  their internal security in a supranational dimension by preserving at the same time the smooth evolution of the EU machinery. That spirit now seems far away.

Quite the contrary, the perspective proposed by the Council Presidency looks quite surreal, if not disconnected from reality. Probably this is not a coincidence, so that  we have to consider that such blindness is a deliberate choice , leading us to wonder , as it happens in any good detective story , to whom the crime will be beneficial...  However what is already clear is that these draft guidelines will hardly be in the interest of the European Union citizens (totally ignored by the text), and not even in the interest of the European Union itself, whose effectiveness will hardly be strengthened.

I - The democratic imperative

The recurrent statement according to which the European citizen is "at the heart " of the security concerns of the actors of the AFSJ has become a hollow phrase - as is the attempt to bury this space in commercial considerations.

EU public opinion will not be mistaken as probably will be vividly confirmed by the incoming May European elections. For the first time, in fact, alongside the traditional criticism of the Union’s democratic deficit and its consequences,  European Union citizens will be critical of one of its main achievements: the free movement of persons.

From questioning Schengen cooperation, to the threats of restoring controls at the internal borders, to the increasing fears of the migration challenge, scathing public criticism is rising, focused more and more on the objectives, content and operation of the AFSJ.

Yet this dangerous trend is plainly ignored in the Council Presidency document. 

Written with a muffled style, the document describes the current state of things as if we were in an unchanging political and legal landscape, by closing its eyes to the new dynamics which are spreading at the core of the common space.  But these new dynamics and events should compel another look at the possible future of the AFSJ.

1. The institutional context

The first event which should have been taken into account is the end of the transitional period for the measures in criminal matters adopted before the entry into force of the Lisbon Treaty (see the current list here); it will trigger the full competence for the Court of Justice of the European Union (CJEU), as well the corresponding Commission duty to bring to justice Member States which have not correctly transposed the EU measures. The first signs are not encouraging and it is more than likely that on 1^st December 2014 we will discover that in most Member States dozens of EU measures adopted in the last fifteen years have never been transposed.

Moreover with the end of the transitional period we be faced also with the UK opt-out from those measures, along with the UK’s request to re-negotiate a possible opt-back-in to some of these acts (see the state-of-play on that issue here). Apart the legal complexity of such a political and institutional exercise, the question will arise whether, as a consequence of the UK opt-out, UK citizens will continue to benefit or not from the same degree of security and freedoms as  the EU citizens of other Member States.

Another controversial issue, from an EU citizens’ perspective, will be the persistent European Council determination to debate and adopt the new AFSJ guidelines even though the new Parliament and the new Commission are not yet in a position to give their contribution. This decision shows clearly how the European Council underestimates the importance of the democratization of  the Area of Freedom Security and Justice. The risk, however, is that this will be a short-sighted approach  because without a clear commitment of the EP and of the Commission, the “Lisbonisation” of the former Framework Decisions or the adoption of pending legislative proposals (Eurojust, European Public Prosecutor…) will be impossible. Also, this would damage the quality of the future dialogue with institutions which will act in a possibly different political context, less open than before to political compromises.

The lack in the Council Presidency document of any critical assessment of the EU institutions’ organizational choices is also appalling. Take, for instance, the persistent lack of dialogue between interior and justice ministers (as implicitly admitted by the document itself). 

Take for instance the Commission choice to split AFSJ policies between two Commission portfolios immediately after the long awaited consolidation of the first and third pillar, the lack of clear institutional  responsibility to face the new challenges arising from the new EU responsibilities on migration and fundamental rights, or, last but not least, even the way in which new EU agencies in these domains are created without a consistent strategy and a credible democratic accountability.

Similarly, how to judge the long passages devoted by the Council document to the "external dimension" of the AFSJ, which has not deserved anything except the politically correct discourse that had accompanied it since 1998? Everyone knows that this external dimension is far from a success story.  Someone should then explain why by a sort of miracle the EU foreign policy failure should lead to a better result when applied to migration or law enforcement.  Acting in a very different legal and institutional framework how can the Common Foreign and Security Policy actors be so closely intertwined within the AFSJ policies as envisaged by the Council Presidency document ? It will be quite a challenge to frame consistently EU agencies’ activity, enforcing (by unanimity) the external and internal security policy, to say nothing of the need to remove bureaucrats and diplomats from these policies. For instance, see the case of mobility partnerships with third countries, or the Global Approach to Mobility and Migration or the so-called "policy cycle", all instruments negotiated and implemented without any credible intervention at European or national level. 

Last but not least the absence of any reference to the possible outcome of the EU accession  to the ECHR shows how the Council (and the Governments) have not yet understood how after the Treaty of Lisbon the European Union’s judges can be decisive.  Has anyone understood how strong the CJEU’s message was in the Kadi ruling on freezing assets of alleged terrorists or in the Digital Rights ruling on data retention for security purposes ? Have they not understood that the European Union’s judges have become now full fundamental rights judges with growing responsibilities to answer the questions raised by the EP and EU citizens in the post Snowden phase ?           

2 . The AFSJ Material Context

It has been profoundly shaken, but the Council has not taken into account the impact of this evolution.

First:  transparency should be the keyword for a legitimate legislative and administrative action.

Second: Protection  of personal data can no longer be treated dealt as it was before Lisbon and the recent CJEU jurisprudence.

Third : new technologies can play an essential role in the security and migration domains. However how should we frame their role while respecting the criteria of proportionality and necessity highlighted in the recent EU jurisprudence ?

II - The challenge of efficiency

An efficient EU action in the AFSJ is important as its constitutional and political framework. However you can’t be effective without the active support of Member States and of EU citizens. Again, regrettably the Council Presidency document misses the target also on this perspective.

Surely everyone can support the principles outlined in the document in favour of quality and efficiency of EU action. However the implementation of these principles requires credible measures and evaluation procedures of the MS action.

1. The principle of solidarity and burden-sharing

As recently recalled in several occasions by the European Parliament, in the AFSJ solidarity and fair sharing of responsibility cannot be dissociated and are the basis of the EU “common” policies on borders, asylum and migration. Solidarity is not then an expression of goodwill but an aspect of the Member States’ collective responsibility before EU citizens when protecting the same EU borders. However in a sort of understatement the document recognises that “…there is no full consensus on the prospect of far-reaching burden-sharing mechanisms (the allocation of beneficiaries of international protection, asylum seekers, irregular migrants and non-removable returnees (3rd country nationals whose return is not possible) even though an important number of Member States claim that this is the logical consequence of the solidarity principle and of the huge current threat they are facing, which risks to disrupt their societies”.

Yet the Council Presidency, instead of proposing a possible strategy also for non-financial aspects of solidarity (such as joint permanent teams and structures), proposes as a priority for the coming years to …assess the costs of the EU and Member States. But this should have been done years ago (even before the ratification of the Lisbon Treaty) or at least during the negotiation of the last Multiannual financial programmes for the AFSJ for 2014-2020. To raise again such an idea five years after the entry into force of the Treaty of Lisbon and of the Charter looks more as a further excuse to avoid the burden of shared responsibility as written in the Treaties. 

2 . Evaluation

According to the Council Presidency document “…an overarching priority for the future should be the quality and effectiveness of the EU law….There is a need to evaluate consistency and effectiveness of the existing legislative framework in the JHA area ..(and) … to ensure a proper transposition and implementation of the already existing instruments.”

These ideas should be more than welcome in the AFSJ domain where until now information is rarely sent to the Council and/or the Commission,  many EU measures are still to be transposed by a majority of Member States, and when those data which are available are not comparable (so that it took years before sharing comparable data on migratory movements). Such lack of cooperation between the Member States and the EU institutions is not specific to the AFSJ (as it is widely present also as regards internal market legislation) but in the AFSJ the outcome of these shortcomings is a lower level of trust between the Member States and the risk of problems when applying mutual recognition measures (be it in the asylum domain or as regards  judicial cooperation in criminal matters).

The Council Presidency rightly refers to Article 70 of the TFEU, which provides for the adoption of measures concerning evaluation specific to the AFSJ. However, so far this legal basis has been employed (after a strong confrontation with the EP) only for the Schengen evaluation mechanism, so it remains to be seen if it could become a reference also for the other AFSJ policies.

But after the CJEU N.S. ruling (C-411/10) a new generalised form of mutual evaluation has been created (which is practically ignored by the Council document) according to which any national authority has the duty to verify “if there are substantial grounds for believing that there are systemic flaws” of fundamental rights policies in the other member states.

This concept has now been mirrored in the recent Directive on the European Investigation Order where the legislator acknowledges that “The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable.(emphasis added) …Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.”

Conclusions

It has still to be seen if and how the Council Presidency document will be taken into account by Coreper this week and by the Justice and Home Affairs Council early in June. So far it is just a hanger to hang hopefully new progressive ideas on.

However the risk exists that even after the inexplicable acceleration given by the European Council to adopt the AFSJ guidelines in the absence of the Parliament and of the Commission the EU citizens will discover that the emperor is… naked.

Barnard & Peers: chapter 3, chapter 25, chapter 26