Tag Archives: European Parliament

by | 25 Mar 2014 · 05:31

“Mediterranean flows into Europe: Migration and the EU’s foreign policy” – Analysis by European Parliament DG for External Policies

The EP’s Directorate-General for External Policies just released an Analysis, “Mediterranean flows into Europe: Migration and the EU’s foreign policy,” in which it reviews the EU’s external policies and instruments relating to migration in the Mediterranean, including the Mediterranean Task Force established after 3 October 2013 tragedy at Lampedusa in which over 350 people died.

The Analysis describes the serious shortcomings of the security-driven approach that has been taken by the EU. Noting, for example, that “it is unclear whether the militarisation of EU border management (resulting from a tighter relation between the CSDP and Frontex) will actually save lives or create even more danger for migrants” and that “[t]he increasing militarisation of the issue of irregular migration was underscored in December 2013, when the European Council called for the establishment of an EU Maritime Security Strategy by June 2014 as well as for increased synergies between the EU’s Common Security and Defence Policy (CSDP) and freedom/security/justice actors to tackle illegal migration.”

The Analysis discusses possible ways in which the European Parliament might play a more significant role in the shaping of future policies:

“The coming months – which will include the European elections and the June 2014 Council – present an important opportunity for the EP to engage politically with the topic of migration in the Mediterranean. As outlined above, numerous EU external policies and instruments deal with migration in the region; […]

All should incorporate respect for human rights as a central concern and pursue the overall goals of prevention, protection and solidarity. The EP has tools at hand to contribute effectively to those objectives. The EP should use its co-decision powers to ensure the inclusion of human rights provisions in all migration-related legislation, and its power of consent to guarantee that international agreements contain effective human rights guarantees. The EP’s budgetary powers also allow the institution to link assistance to third countries to proper human rights monitoring mechanisms.

Most pressingly, the EP should advocate the implementation of the actions recommended by the Mediterranean Task Force set up by the Commission. The EP should also use the opportunities generated by inter-parliamentary relations (such as the 27th ACP-EU Joint Parliamentary Assembly in March and the EU-Africa summit in April) to engage in a dialogue about migration with third countries. This dialogue should foster cooperation in the management of regular migration and in the fight against irregular migration and trafficking networks, with special emphasis on the need to prevent migrants from embarking on dangerous journeys to the EU.

The dialogue should also seek to frame Mediterranean migration within a wider perspective, possibly in the following ways:

  • Steer away from excessively militarised and security-centred approaches. The EP should ensure that strict human rights standards are respected in the fight against organised crime and smugglers’ networks, and that a clear distinction is drawn between criminal networks and their victims. The EU should prevent the criminalisation of migrants and of humanitarian organisations supporting migrants.
  • Highlight the importance of good governance, and of good migration governance more specifically. By reinforcing the EU’s Regional Development and Protection Programmes, for example, the Union can develop a comprehensive and long-term framework to develop and enhance the capacities of migration management and national asylum systems in Mediterranean countries.
  • Demand full respect for humanitarian law, refugee protection and human rights (including the rights of non-nationals) in crisis situations, and stress that humanitarian access must be guaranteed to provide life-saving supplies.
  • Recognise the importance and challenges that South-South and intra-African migration represent for countries in the southern Mediterranean, rather than focussing solely on the (much smaller) flows towards the EU.
  • Encourage further research on the migration-development nexus and explore the positive impact of human mobility on socioeconomic development.
  • Encourage EU Member States to facilitate and speed up their procedures to grant asylum and EU protected status, whilst better differentiating between refugees and irregular migrants. The EP should respect the competence of the Member States in this regard, but could also encourage Member States – in cooperation with the UNHCR – to increase their quotas for resettling refugees not adequately protected in third countries. The EP should support the Mediterranean Task Force’s proposed feasibility study on the joint processing of protection claims outside the EU, and the Commission’s proposal to move towards a common approach for humanitarian permits and visas.

All these actions would contribute to reshaping the EU’s external action related to migration, notably in the Mediterranean. They would also enhance the EU’s credibility vis-à-vis those third countries that accept significant number of migrants and refugees, and that most directly bear the consequences of their neighbours’ conflicts. (This is the case today for Lebanon and Turkey, as a result of the Syrian civil war). A modified EU approach could also project a more nuanced and positive view of migration – a change that might, in turn, influence the way migration is perceived more broadly within the EU.”

Click here or here for the Analysis.

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by | 16 Oct 2013 · 05:50

EU Mediterranean States Oppose Provisions of Proposed Frontex Sea Borders Regulation Relating to Rescue and Disembarkation

[16 Oct. UPDATE: The document from the six states opposing the proposed Regulation is available here.]

One week ago Commissioner Cecilia Malmström called for an “extensive Frontex search and rescue operation that would cover the Mediterranean from Cyprus to Spain.” Yesterday the ANSA news service reported that all six EU Mediterranean states (Cyprus, Greece, Italy, Malta, France and Spain) have voiced opposition to the proposed Frontex Sea Borders Regulation (COM(2013) 197 final) and specifically to Articles 9 and 10 relating to “Search and Rescue Situations” and “Disembarkation.” ANSA reported that the six member states “expressed disapproval of the draft and called it ‘unacceptable for practical and legal reasons’.”  The six countries have reportedly taken the position that there is no need for further regulations pertaining to rescue at sea or post-rescue places of disembarkation since other international laws already “deal ‘amply’ with the matters.”

As you may recall, the earlier version of the Frontex Sea Borders Rule in the form of a Decision was adopted by the European Council in 2010 (Decision 2010/252/EU).  The Decision was subsequently annulled by the Court of Justice of the European Union on the ground that it introduced new essential elements into the Schengen Borders Code by way of the provisions on interception, rescue and disembarkation and that such substantive changes required the consideration and approval of the European Parliament. (European Parliament v Council of the European Union, Case C-355/10, 5 Sept. 2012). The proposed replacement for the annulled Decision is in the form of a Regulation but is fairly similar in content.

While the ANSA report does not identify the specific reasons why the six states are opposing the proposal, one can speculate that the objections to Art. 9, Search and Rescue Situations, may be based on a perception that it would expand the obligation to rescue under certain circumstances.  For example the Article requires that even in the absence of a distress call, a rescue operation might still be required if other factors are present, including:

  • the seaworthiness of the ship and the likelihood that the ship will not reach its final destination;
  • the number of passengers in relation to the type and condition of the ship;
  • the availability of necessary supplies such as fuel, water, food to reach a shore;
  • the presence of passengers in urgent need of medical assistance;
  • the presence of deceased passengers;
  • the presence of pregnant women or children.

The objections by the six states to Art. 10 regarding places of disembarkation are most likely due to the states’ conflicting positions regarding where disembarkation should occur.  While Art. 10 creates a procedure for decisions regarding places of disembarkation to be made by participating member states in advance of joint operations, its provisions identify circumstances under which disembarkation in member state may occur when that state is not participating in the joint operation.  Malta and Italy in particular have long disagreed on where disembarkations are to occur.  This long standing disagreement obviously contradicts the claims made by the six opposing states that existing international laws already deal “amply” with the disembarkation issue.

Click here for ANSA article.

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by | 28 Nov 2012 · 05:32

European Commission’s Second Biannual Report on Schengen Area

The European Commission released its “Second biannual report on the functioning of the Schengen area” covering the period 1 May 2012-31 October 2012.  (COM(2012) 686 final, 23.11.2012)  The first reporton the Schengen area was released in May of this year.  (COM(2012) 230 final, 16.5.2012)

Here are a few excerpts from the 8 page document:

The Commission intends to present a legislative proposal in early 2013 to replace the Frontex sea border operations rule (Council Decision 2010/252/EU) that was annulled by the Court of Justice on 5 September 2012;

Subsequent to the issuance of a letter of formal notice to Greece in October 2009 in response to “allegations of serious difficulties faced by migrants in applying for asylum and ill-treatment of asylum-seekers, including the turning back of persons who may face serious harm or persecution”, the Commission is continuing to analyse the situation “in the light of constant developments, such as the progress made in the implementation of the Greek National Action Plan.”;

Subsequent to a Commission request to Italy in July 2009 “to provide information on the measures to avoid the risk of refoulement” and the February 2012 European Court of Human Rights decision in the Case of Hirsi v. Italy, “[a]gainst this background, the Commission is now analysing the implications of this ruling on border surveillance operations at sea and on the asylum acquis.

Click  here or here for Second Report.

Click here for First Report.

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by | 10 Sep 2012 · 04:39

EU Court of Justice Annuls Frontex Sea Borders Rule – EU Parliamentary Approval Required (28.11.2012 update)

[UPDATE 28 November 2012: The European Commission intends to present a legislative proposal in early 2013 to replace the annulled Frontex sea border operations rule (Council Decision 2010/252/EU).  See EC’s “Second biannual report on the functioning of the Schengen area” covering the period 1 May 2012-31 October 2012.  (COM(2012) 686 final, 23.11.2012)]

The EU Court of Justice, Grand Chamber, issued a judgment on 5 September 2012 annulling Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by [Frontex] (OJ 2010 L 111, p. 20), i.e. the Frontex Sea Borders Rule.  ECJ Advocate General Paolo Mengozzi issued an Opinion on 17 April 2012 recommending that the Court annul the Rule.

The Court concluded that the provisions of the contested rule were not minor, non-essential provisions, but instead “constitute[d] a major [new] development in the [Schengen Borders Code] system” and which therefore required the consideration and approval of the European Parliament.

The Court stated that the Schengen Borders Code (“SBC”) as it currently stands “does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended….”  The contested rule “lays down the measures which border guards may take against ships [authorising] ships to be stopped, boarded, searched and seized…”  The contested rule “lays down rules on the disembarkation of the persons intercepted or rescued …stating that priority should be given to disembarkation in the third country from where the ship carrying the persons departed.”

The Court said the adoption of such rules conferring “enforcement powers on border guards …entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.”

The Court also noted that “the powers conferred in the contested [rule] mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.”

For these reasons the Court decided that the “contested [rule] must be annulled in its entirety because it contains essential elements of the surveillance of the sea external borders of the Member States which go beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.”

The Court ordered “the effects of the contested [rule] [to]  be maintained until the entry into force, within a reasonable time, of new rules intended to replace the contested decision annulled by the present judgment.”

Click here or here for Judgment.

Extensive Excerpts from Judgment:

THE COURT (Grand Chamber), composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot and A. Prechal, Presidents of Chambers, R. Silva de Lapuerta, K. Schiemann, E. Juhász, G. Arestis, T. von Danwitz (Rapporteur), M. Berger and E. Jarašiūnas, Judges,

Advocate General: P. Mengozzi,

having regard to the written procedure and further to the hearing on 25 January 2012, after hearing the Opinion of the Advocate General at the sitting on 17 April 2012, gives the following Judgment

1. By its action, the European Parliament seeks the annulment of Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by [FRONTEX] (OJ 2010 L 111, p. 20, ‘the contested decision’).

2. [***] The Parliament submits that the provisions of the contested decision ought to have been adopted by the ordinary legislative procedure and not by the comitology procedure based on Article 12(5) of the SBC [Schengen Borders Code].

I – Legal context

A – Decision 1999/468/EC

3.-7. [***]

B – The SBC

8.-16.[***]

C – Regulation (EC) No 2007/2004

17.-21.[***]

D – The contested decision

22.-29.[***]

II – Forms of order sought by the parties and the procedure before the Court

30. The Parliament claims that the Court should:

– annul the contested decision;

– order that the effects of the contested decision be maintained until it is replaced, …

31. The Council contends that the Court should:

– dismiss the Parliament’s action as inadmissible;

– in the alternative, dismiss the action as unfounded, …

32.[***] the Commission was granted leave to intervene in support of the form of order sought by the Council and, in its statement in intervention, it requests the Court to dismiss the Parliament’s action …..

III – The action

A – The admissibility of the action

33.-40.[***]

41. It follows from the above that the action for annulment must be declared to be admissible.

B – Substance

1. Arguments of the parties

42. [***]

(a) As regards the principles governing the implementing powers

43. The Parliament submits that the regulatory procedure with scrutiny can have as its subject-matter the modification or removal of non-essential elements of a basic instrument or the addition of new non-essential elements, but not the modification of the essential elements of such an instrument. [***]

44.-45.[***]

46. The Commission contends that [it has] the power to put flesh on the bones of the essential elements which the co‑legislators have chosen not to detail in extenso . It is authorised to supplement those elements and to regulate new activities within the scope of the essential subject-matter and of the essential rules.

(b) As regards the contested decision

47. Although the Parliament does not challenge the objectives of the contested decision, it takes the view that its content ought to have been adopted by means of a legislative act and not by an implementing measure. That decision goes beyond the scope of the implementing powers referred to in Article 12(5) of the SBC because it introduces new essential elements into that code and alters essential elements of the SBC as well as the content of the Frontex Regulation.

(i) Introduction of new essential elements into the SBC

48. As regards the introduction of new essential elements into the SBC, the Parliament submits that Parts I and II to the Annex of the contested decision lay down measures which cannot be considered to be within the scope of border surveillance as defined by the SBC or to be a non‑essential element of that code.

49. Thus, …, paragraph 2.4 of Part I to the Annex of the contested decision does not merely lay down detailed practical rules of border surveillance but grants border guards far‑reaching powers. The SBC is silent as to the measures which might be taken against persons or ships. However, the contested decision lays down far-reaching enforcement measures, yet does not ensure the right of persons intercepted on the high seas to claim asylum and associated rights, whereas, in accordance with Article 13 of the SBC, returning the persons concerned to the country from where they came can only arise in the context of a formal refusal of entry.

50. In addition, the rules relating to activities such as search and rescue and disembarkation in Part II to the Annex of the contested decision do not, in the Parliament’s view, fall within the concept of surveillance. Even though the title of Part II contains the word ‘guidelines’, Part II is binding and is intended to produce legal effects as against Member States which participate in an operation coordinated by the Agency, due to its wording, the fact that it is contained in a legally binding instrument, and the fact that it forms part of an operational plan provided for by the Frontex Regulation. The contested decision thus contains essential elements of the SBC and could not therefore be regulated in an implementing measure.

51. In addition, the Parliament submits that the contested decision exceeds the territorial scope of the SBC . In accordance with Article 2(11) of the SBC, surveillance is limited to the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, whereas, in accordance with paragraph 2.5 of Part I to its Annex, the contested decision applies not only to territorial waters, but also to contiguous zones and to the high seas.

52. [***]

53. [***] The Council contends that the argument alleging an extension of the territorial scope of the SBC is unfounded, since that code does not define the concept of a sea border, which must be understood as applying also to border surveillance carried out in the contiguous zones as well as on the high seas.

54. [***] Admittedly, helping ships in distress is not a surveillance measure in the narrow sense. However, if such a situation were to occur during a surveillance operation coordinated by the Agency, it would be indispensable to coordinate in advance how the search and rescue was conducted by various participating Member States. In those circumstances, the Council takes the view that the contested decision does not introduce new elements into the SBC.

55. The Commission contends that border surveillance is an essential element of the SBC, but that the essential rules governing that matter are found in Article 12 of the SBC which lays down provisions regarding the content as well as the object and purpose of the surveillance without serving to regulate that surveillance extensively and exhaustively. The co-legislators conferred on the Commission the power to supplement those essential elements. The power to regulate new activities allows the Commission to regulate the content of border surveillance and to define what that activity entails.

56. The Commission contends that the contested decision does not introduce new essential elements into the SBC. Surveillance must, in the light of its purpose, not only encompass the detection of attempts to gain illegal entry into the European Union but also extend to positive steps such as intercepting ships which are suspected of trying to gain entry to the Union without submitting to border checks. Article 12(4) of the SBC specifically mentions one of the purposes of surveillance as being to apprehend individuals. In order to assess whether ‘search and rescue’ falls within the concept of surveillance, it is important to take into consideration the factual circumstances in which attempted illegal entries arise. In many instances, the surveillance operation will prompt the search and rescue situation, and it is not possible to draw a sharp distinction between those operations. The issue of whether or not the guidelines are binding does not arise, given that the measures which they lay down fall within the concept of surveillance.

(ii) Modification of essential elements of the SBC

57. As regards the modification of the essential elements of the SBC, the Parliament contends, in particular, that the contested decision alters Article 13 of the Code. Since that article applies to any form of interception, persons who have entered illegally into the territorial waters and contiguous zones cannot be forced back or asked to leave without a decision pursuant to Article 13 of the SBC. However, paragraph 2.4 of Part I to the Annex of the contested decision confers on border guards the power to order the ship to modify its course outside of the territorial waters, without a decision within the meaning of Article 13 being taken or without the persons concerned having the possibility to challenge the refusal of entry.

58. In that connection, the Council and the Commission contend that Article 13 of the SBC does not apply to border surveillance activities so that the contested decision does not amend that article.

(iii) Amendment of the Frontex Regulation

59. As regards the amendment of the Frontex Regulation, the Parliament contends that Article 12(5) of the SBC does not grant the Commission the power to lay down rules which amend the powers and obligations set out by the Frontex Regulation for the operations co-ordinated by the Agency. The contested decision is not the appropriate legal instrument for creating obligations in relation to those operations or for modifying the provisions of the Frontex Regulation.

60. However, the contested decision is intended to apply only within the context of operations coordinated by the Agency and is obligatory not only for the Member States but also for the Agency, in light of the fact that its Annex forms part of the operational plan for each operation, whilst Article 8e of the Frontex Regulation determines the main elements of that plan. The mandatory inclusion in the operational plan of the rules and guidelines set out in the Annex of the contested decision significantly amends the list of necessary elements for the implementation of that plan, such as the roles of border guards, the participating units and the Rescue Coordination Centre, respectively.

61. In that connection, the Council contends that the contested decision does not amend the tasks of the Agency, even though the Annex of that decision forms part of the operational plan. [***]

62. According to the Commission, the contested decision does not affect the operation of the Frontex Regulation. The requirement in Article 1 of the contested decision that both Parts to the Annex are to be part of the operational plan imposes a requirement not upon the Agency, but rather the Member States as the persons to whom that decision is addressed and responsible for ensuring that the Annex forms part of that plan. In those circumstances, the contested decision does not amend the Frontex Regulation.

2. Findings of the Court

63.-68. [***]

69. As to whether the Council was empowered to adopt the contested decision as a measure implementing Article 12 of the SBC on border surveillance, on the basis of Article 12(5) of that code, it is first of all necessary to assess the meaning of that article.

70.-72.[***]

73. Although the SBC, which is the basic legislation in the matter, states in Article 12(4) thereof, that the aim of such [border] surveillance is to apprehend individuals crossing the border illegally, it does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended and subsequently – such as the application of enforcement measures, the use of force or conducting the persons apprehended to a specific location – or even measures against persons implicated in human trafficking.

74. That said, paragraph 2.4 of Part I to the Annex of the contested decision lays down the measures which border guards may take against ships detected and persons on board. In that connection, paragraph 2.4 (b), (d), (f) and (g) allows, inter alia, ships to be stopped, boarded, searched and seized, the persons on board to be searched and stopped, the ship or persons on board to be conducted to another Member State, and thus enforcement measures to be taken against persons and ships which could be subject to the sovereignty of the State whose flag they are flying.

75. In addition, paragraph 1.1 of Part II to the Annex of the contested decision lays down, inter alia, the obligation of the units participating in sea external border operations coordinated by the Agency to provide assistance to any vessel or person in distress at sea. Paragraph 2 of Part II lays down rules on the disembarkation of the persons intercepted or rescued, the second subparagraph of paragraph 2.1 stating that priority should be given to disembarkation in the third country from where the ship carrying the persons departed.

76. First, the adoption of rules on the conferral of enforcement powers on border guards, referred to in paragraphs 74 and 75 above, entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.

77. Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.

78. Thus, the adoption of provisions such as those laid down in paragraph 2.4 of Part I, and paragraphs 1.1 and 2.1 of Part II, of the Annex to the contested decision, requires political choices to be made as referred to in paragraphs 76 and 77 above. Accordingly, the adoption of such provisions goes beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC and, in the context of the European Union’s institutional system, is a matter for the legislature.

79. In those circumstances, it must be found that, as the Advocate General observed in points 61 and 66 of his Opinion, Parts I and II to the Annex of the contested decision contain essential elements of external maritime border surveillance.

80. The mere fact that the title of Part II to the Annex of the contested decision contains the word ‘guidelines’ and that the second sentence of Article 1 of that decision states that the rules and guidelines in Part II are ‘non-binding’ cannot affect their classification as essential rules.

81.-83. [***]

84. In those circumstances, the contested decision must be annulled in its entirety because it contains essential elements of the surveillance of the sea external borders of the Member States which go beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.

85. Consequently, the Parliament’s arguments to the effect that the contested decision amends the essential elements of the SBC and also the Frontex Regulation do not require to be examined.

IV – The application for the effects of the contested decision to be maintained

86. The Parliament requests the Court, should it annul the contested decision, to maintain its effects, pursuant to the second paragraph of Article 264 TFEU, until that decision is replaced.

87. The Parliament submits that it is necessary to maintain the effects of the contested decision, in the light of the importance of the objectives of the proposed measures in the context of the European Union’s policy on border control operations.

88. [***]

89. The annulment of the contested decision without maintaining its effects on a provisional basis could compromise the smooth functioning of the current and future operations coordinated by the Agency and, consequently, the surveillance of the sea external borders of the Member States.

90. In those circumstances, there are important grounds of legal certainty which justify the Court exercising the power conferred on it by the second paragraph of Article 264 TFEU. In the present case, the effects of the contested decision must be maintained until the entry into force, within a reasonable time, of new rules intended to replace the contested decision annulled by the present judgment.

V – Costs

91. [***]

On those grounds, the Court (Grand Chamber) hereby:

1. Annuls Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union;

2. Maintains the effects of decision 2010/252 until the entry into force of new rules within a reasonable time;

3. Orders the Council of the European Union to pay the costs;

4. Orders the European Commission to bear its own costs.

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by | 16 Jul 2012 · 06:20

Heinrich Böll Foundation Study: Borderline- The EU’s New Border Surveillance Initiatives, Assessing the Costs and Fundamental Rights Implications of EUROSUR and the ‘Smart Borders’ Proposals

The Heinrich Böll Foundation released a study written by Dr. Ben Hayes from Statewatch and Mathias Vermeulen (editor of The Lift- Legal Issues in the Fight Against Terrorism blog) entitled “Borderline – The EU’s new border surveillance initiatives: assessing the costs and fundamental rights implications of EUROSUR and the ‘Smart Borders’ Proposals.”  The Study was presented to the European Parliament last month.  As Mathias Vermeulen noted in an email distributing the study, “the European Parliament is currently negotiating the legislative proposal for Eurosur, and the European Commission is likely to present a legislative proposal on ‘smart borders’ in September/October.”

Excerpts from the Preface and Executive Summary of the Study:

“Preface

The upheavals in North Africa have lead to a short-term rise of refugees to Europe, yet, demonstrably, there has been no wave of refugees heading for Europe. By far most refugees have found shelter in neighbouring Arab countries. Nevertheless, in June 2011, the EU’s heads of state precipitately adopted EU Council Conclusions with far-reaching consequences, one that will result in new border policies ‘protecting’ the Union against migration. In addition to new rules and the re-introduction of border controls within the Schengen Area, the heads of state also insisted on upgrading the EU’s external borders using state-of-art surveillance technology, thus turning the EU into an electronic fortress.

The Conclusions passed by the representatives of EU governments aims to quickly put into place the European surveillance system EUROSUR. This is meant to enhance co-operation between Europe’s border control agencies and promote the surveillance of the EU’s external borders by FRONTEX, the Union’s agency for the protection of its external borders, using state-of-the-art surveillance technologies. To achieve this, there are even plans to deploy unmanned aerial vehicles (UAVs) over the Mediterranean and the coasts of North Africa. Such high-tech missions have the aim to spot and stop refugee vessels even before they reach Europe’s borders. A EUROSUR bill has been drafted and is presently being discussed in the European Council and in the European Parliament. [***]

EUROSUR and ‘smart borders’ represent the EU’s cynical response to the Arab Spring. Both are new forms of European border controls – new external border protection policies to shut down the influx of refugees and migrants (supplemented by internal controls within the Schengen Area); to achieve this, the home secretaries of some countries are even willing to accept an infringement of fundamental rights.

The present study by Ben Hayes and Mathias Vermeulen demonstrates that EUROSUR fosters EU policies that undermine the rights to asylum and protection. For some time, FRONTEX has been criticised for its ‘push back’ operations during which refugee vessels are being intercepted and escorted back to their ports of origin. In February 2012, the European Court of Human Rights condemned Italy for carrying out such operations, arguing that Italian border guards had returned all refugees found on an intercepted vessel back to Libya – including those with a right to asylum and international protection. As envisioned by EUROSUR, the surveillance of the Mediterranean using UAVs, satellites, and shipboard monitoring systems will make it much easier to spot such vessels. It is to be feared, that co-operation with third countries, especially in North Africa, as envisioned as part of EUROSUR, will lead to an increase of ‘push back’ operations.

Nevertheless, the EU’s announcement of EUROSUR sounds upbeat: The planned surveillance of the Mediterranean, we are being told, using UAVs, satellites, and shipboard monitoring systems, will aid in the rescue of refugees shipwrecked on the open seas. The present study reveals to what extent such statements cover up a lack of substance. Maritime rescue services are not part of EUROSUR and border guards do not share information with them, however vital this may be. Only just recently, the Council of Europe issued a report on the death of 63 migrants that starved and perished on an unseaworthy vessel, concluding that the key problem had not been to locate the vessel but ill-defined responsibilities within Europe. No one came to the aid of the refugees – and that in spite of the fact that the vessel’s position had been known. [***]

The EU’s new border control programmes not only represent a novel technological upgrade, they also show that the EU is unable to deal with migration and refugees. Of the 500,000 refugees fleeing the turmoil in North Africa, less than 5% ended up in Europe. Rather, the problem is that most refugees are concentrated in only a very few places. It is not that the EU is overtaxed by the problem; it is local structures on Lampedusa, in Greece’s Evros region, and on Malta that have to bear the brunt of the burden. This can hardly be resolved by labelling migration as a novel threat and using military surveillance technology to seal borders. For years, instead of receiving refugees, the German government along with other EU countries has blocked a review of the Dublin Regulation in the European Council. For the foreseeable future, refugees and migrants are to remain in the countries that are their first point of entry into the Union.

Within the EU, the hostile stance against migrants has reached levels that threaten the rescue of shipwrecked refugees. During FRONTEX operations, shipwrecked refugees will not be brought to the nearest port – although this is what international law stipulates – instead they will be landed in a port of the member country that is in charge of the operation. This reflects a ’nimby’ attitude – not in my backyard. This is precisely the reason for the lack of responsibility in European maritime rescue operations pointed out by the Council of Europe. As long as member states are unwilling to show more solidarity and greater humanity, EUROSUR will do nothing to change the status quo.

The way forward would be to introduce improved, Europe-wide standards for the granting of asylum. The relevant EU guidelines are presently under review, albeit with the proviso that the cost of new regulations may not exceed the cost of those in place – and that they may not cause a relative rise in the number of asylum requests. In a rather cynical move, the EU’s heads of government introduced this proviso in exactly the same resolution that calls for the rapid introduction of new surveillance measures costing billions. Correspondingly, the budget of the European Asylum Support Office (EASO) is small – only a ninth what goes towards FRONTEX.

Unable to tackle the root of the problem, the member states are upgrading the Union’s external borders. Such a highly parochial approach taken to a massive scale threatens some of the EU’s fundamental values – under the pretence that one’s own interests are at stake. Such an approach borders on the inhumane.

Berlin/Brussels, May 2012

Barbara Unmüßig

President Heinrich-Böll-Stiftung

Ska Keller

Member of the European Parliament

Executive Summary

The research paper ‘Borderline’ examines two new EU border surveillance initiatives: the creation of a European External Border Surveillance System (EUROSUR) and the creation of the so-called ‘smart borders package’…. EUROSUR promises increased surveillance of the EU’s sea and land borders using a vast array of new technologies, including drones (unmanned aerial vehicles), off-shore sensors, and satellite tracking systems. [***]

The EU’s 2008 proposals gained new momentum with the perceived ‘migration crisis’ that accompanied the ‘Arab Spring’ of 2011, which resulted in the arrival of thousands of Tunisians in France. These proposals are now entering a decisive phase. The European Parliament and the Council have just started negotiating the legislative proposal for the EUROSUR system, and within months the Commission is expected to issue formal proposals for the establishment of an [Entry-Exit System] and [Registered Traveller Programme]. [***]

The report is also critical of the decision-making process. Whereas the decision to establish comparable EU systems such as EUROPOL and FRONTEX were at least discussed in the European and national parliaments, and by civil society, in the case of EUROSUR – and to a lesser extent the smart borders initiative – this method has been substituted for a technocratic process that has allowed for the development of the system and substantial public expenditure to occur well in advance of the legislation now on the table. Following five years of technical development, the European Commission expects to adopt the legal framework and have the EUROSUR system up and running (albeit in beta form) in the same year (2013), presenting the European Parliament with an effective fait accomplit.

The EUROSUR system

The main purpose of EUROSUR is to improve the ‘situational awareness’ and reaction capability of the member states and FRONTEX to prevent irregular migration and cross-border crime at the EU’s external land and maritime borders. In practical terms, the proposed Regulation would extend the obligations on Schengen states to conducting comprehensive ‘24/7’ surveillance of land and sea borders designated as high-risk – in terms of unauthorised migration – and mandate FRONTEX to carry out surveillance of the open seas beyond EU territory and the coasts and ports of northern Africa. Increased situational awareness of the high seas should force EU member states to take adequate steps to locate and rescue persons in distress at sea in accordance with the international law of the sea. The Commission has repeatedly stressed EUROSUR’s future role in ‘protecting and saving lives of migrants’, but nowhere in the proposed Regulation and numerous assessments, studies, and R&D projects is it defined how exactly this will be done, nor are there any procedures laid out for what should be done with the ‘rescued’. In this context, and despite the humanitarian crisis in the Mediterranean among migrants and refugees bound for Europe, EUROSUR is more likely to be used alongside the long-standing European policy of preventing these people reaching EU territory (including so-called push back operations, where migrant boats are taken back to the state of departure) rather than as a genuine life-saving tool.

The EUROSUR system relies on a host of new surveillance technologies and the interlinking of 24 different national surveillance systems and coordination centers, bilaterally and through FRONTEX. Despite the high-tech claims, however, the planned EUROSUR system has not been subject to a proper technological risk assessment. The development of new technologies and the process of interlinking 24 different national surveillance systems and coordination centres – bilaterally and through FRONTEX – is both extremely complex and extremely costly, yet the only people who have been asked if they think it will work are FRONTEX and the companies selling the hardware and software. The European Commission estimates that EUROSUR will cost €338 million, but its methods do not stand up to scrutiny. Based on recent expenditure from the EU External Borders Fund, the framework research programme, and indicative budgets for the planned Internal Security Fund (which will support the implementation of the EU’s Internal Security Strategy from 2014–2020), it appears that EUROSUR could easily end up costing two or three times more: as much as €874 million. Without a cap on what can be spent attached to the draft EUROSUR or Internal Security Fund legislation, the European Parliament will be powerless to prevent any cost overruns. There is no single mechanism for financial accountability beyond the periodic reports submitted by the Commission and FRONTEX, and since the project is being funded from various EU budget lines, it is already very difficult to monitor what has actually been spent.

In its legislative proposal, the European Commission argues that EUROSUR will only process personal data on an ‘exceptional’ basis, with the result that minimal attention is being paid to privacy and data protection issues. The report argues that the use of drones and high-resolution cameras means that much more personal data is likely to be collected and processed than is being claimed. Detailed data protection safeguards are needed, particularly since EUROSUR will form in the future a part of the EU’s wider Common Information Sharing Environment (CISE), under which information may be shared with a whole range of third actors, including police agencies and defence forces. They also call for proper supervision of EUROSUR, with national data protection authorities checking the processing of personal data by the EUROSUR National Coordination Centres, and the processing of personal data by FRONTEX, subject to review by the European Data Protection Supervisor. EUROSUR also envisages the exchange of information with ‘neighbouring third countries’ on the basis of bilateral or multilateral agreements with member states, but the draft legislation expressly precludes such exchanges where third countries could use this information to identify persons or groups who are at risk of being subjected to torture, inhuman and degrading treatment, or other fundamental rights violations. The authors argue that it will be impossible to uphold this provision without the logging of all such data exchanges and the establishment of a proper supervisory system. [***]”

Click here or here for full text of Study.

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by | 25 Apr 2012 · 05:17

EU Court of Justice Advocate General Recommends Annulment of Frontex Sea Borders Rule

ECJ Advocate General Paolo Mengozzi issued an Opinion on 17 April in which he recommended that the European Court of Justice annul Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by Frontex (Sea Borders Rule).  The Advocate General’s recommendation, issued in the case of the European Parliament v Council of the EU, Case C-355/10, will be considered by the ECJ in the coming weeks.  The case was filed by the European Parliament on 12 July 2010.  A hearing was conducted on 25 January 2012.

The Advocate General’s recommendation is based primarily on the conclusion that the Council adopted the Frontex Sea Borders Rule by invoking a procedure which may only be used to amend “non-essential elements” of the Schengen Borders Code.  The Advocate General concluded that rather than amending “non-essential elements” of the SBC, the Council Decision introduces “new essential elements” into the SBC and amends the Frontex Regulation.  The recommendation calls for the effects of the Sea Borders Rule to be maintained until a new act can be adopted in accordance with ordinary legislative procedures.

[UPDATE:]  Paragraph 64 of the Recommendation explains why the Commission likely sought to implement the Sea Borders Rule through the committee mechanism rather than by pursuing ordinary legislative procedures:

“64.      Firstly, some provisions of the contested decision concern problems that, as well as being sensitive, are also particularly controversial, such as, for example, the applicability of the principle of non-refoulement in international waters (51) or the determination of the place to which rescued persons are to be escorted under the arrangements introduced by the SAR Convention. (52) The Member States have different opinions on these problems, as is evident from the proposal for a decision submitted by the Commission. (Ftnt 53)

Ftnt 53 – Moreover, it would seem that it is precisely a difference of opinion and the impasse created by it which led to the Commission’s choosing to act through the committee mechanism under Article 12(5) of the SBC rather than the ordinary legislative procedure, as is clear also from the letter from Commissioner Malmström annexed to the reply. These differences persist. The provisions of the contested decision concerning search and rescue, for example, have not been applied in Frontex operations launched after the entry into force of the contested decision on account of opposition from Malta.”

While this case presents a procedural question and does not involve a review of any of the substantive provisions of the Sea Borders Rule, the Advocate General’s statement in Paragraph 64 that “the applicability of the principle of non-refoulement in international waters” is a “controversial” position is wrong.  Perhaps the position is still controversial in some circles, but legally, with the important exception expressed by the US Supreme Court, it is clear that non-refoulement obligations apply to actions taken in international waters.

Click here for Opinion of Advocate General Mengozzi, Case C-355/10, 17 April 2012.

Click here, here, and here for articles.

Click here for my last post on the case.

Extensive Excerpts from the Advocate General’s Recommendation:

“1.        In the present proceedings, the European Parliament requests the Court to annul Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code (2) as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the contested decision’). (3) If the action should be upheld, Parliament requests that the effects of the contested decision be maintained until it shall have been replaced.

[***]

9.        The contested decision was adopted on the basis of Article 12(5) of the SBC, in accordance with the procedure provided for in Article 5a(4) of the comitology decision … [***]

10.      According to recitals (2) and (11) of the contested decision, its principal objective is the adoption of additional rules for the surveillance of the sea borders by border guards operating under the coordination of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’ or ‘Frontex’), established by Regulation 2007/2004 (‘the Frontex Regulation’). (9) It consists of two articles and an annex divided into two parts entitled ‘Rules for sea border operations coordinated by the Agency’ and ‘Guidelines for search and rescue situations and for disembarkation in the context of sea border operations coordinated by the Agency’. Under Article 1, ‘[t]he surveillance of the sea external borders in the context of the operational cooperation between Member States coordinated by the … Agency … shall be governed by the rules laid down in Part I to the Annex. Those rules and the non-binding guidelines laid down in Part II to the Annex shall form part of the operational plan drawn up for each operation coordinated by the Agency.’

11.      Point 1 of Part I to the Annex lays down certain general principles intended, inter alia, to guarantee that maritime surveillance operations are conducted in accordance with fundamental rights and the principle of non-refoulement. Point 2 contains detailed provisions on interception and lists the measures that may be taken in the course of the surveillance operation ‘against ships or other sea craft with regard to which there are reasonable grounds for suspecting that they carry persons intending to circumvent the checks at border crossing points’ (point 2.4). The conditions for taking such measures vary depending on whether the interception takes place in the territorial waters and contiguous zone of a Member State (point 2.5.1) or on the high seas (point 2.5.2). Point 1 of Part II to the Annex lays down provisions on units participating in the surveillance operation in search and rescue situations, including with regard to communicating and forwarding information to the rescue coordination centre responsible for the area in question and the coordination centre of the operation, and defines certain conditions for the existence of an emergency (point 1.4). Point 2 lays down guidelines on the modalities for the disembarkation of the persons intercepted or rescued.

II –  Procedure before the Court and forms of order sought

12.      By act lodged at the Registry of the Court of Justice on 12 July 2010, the Parliament brought the action which forms the subject-matter of the present proceedings. The Commission intervened in support of the Council. At the hearing of 25 January 2012, the agents of the three institutions presented oral argument.

13.      The Parliament claims that the Court should annul the contested decision, rule that the effects thereof be maintained until it is replaced, and order the Council to pay the costs.

14.      The Council contends that the Court should dismiss the application as inadmissible or, in the alternative, as unfounded and order the Parliament to pay the costs.

15.      The Commission requests the Court to dismiss the application and order the Parliament to pay the costs.

III –  Application

A –    Admissibility

[***]

23.      For all the reasons set out above, the application must, in my view, be declared admissible.

B –    Substance

24.      The Parliament considers that the contested decision exceeds the implementing powers conferred by Article 12(5) of the SBC and therefore falls outside the ambit of its legal basis. In that context it raises three complaints. Firstly, the contested decision introduces new essential elements into the SBC. Secondly, it alters essential elements of the SBC. Thirdly, it interferes with the system created by the Frontex Regulation. These complaints are examined separately below.

[***]

3.      First complaint, alleging that the contested decision introduces new essential elements into the SBC

[***]

61.      Given both the sphere of which the legislation in question forms part and the objectives and general scheme of the SBC, in which surveillance is a fundamental component of border control policy, and notwithstanding the latitude left to the Commission by Article 12(5), I consider that strong measures such as those listed in point 2.4 of the annex to the contested decision, in particular those in subparagraphs (b), (d), (f) and g), and the provisions on disembarkation contained in Part II to that annex, govern essential elements of external maritime border surveillance. These measures entail options likely to affect individuals’ personal freedoms and fundamental rights (for example, searches, apprehension, seizure of the vessel, etc.), the opportunity those individuals have of relying on and obtaining in the Union the protection they may be entitled to enjoy under international law (this is true of the rules on disembarkation in the absence of precise indications on how the authorities are to take account of the individual situation of those on board the intercepted vessel), (47) and also the relations between the Union or the Member States participating in the surveillance operation and the third countries involved in that operation.

62.      In my view, a similar approach is necessary with regard to the provisions of the contested decision governing interception of vessels on the high seas. On the one hand, those provisions expressly authorise the adoption of the measures mentioned in the preceding paragraph in international waters, an option which, in the context described above, is essential in nature, irrespective of whether or not the Parliament’s argument is well founded, that the geographical scope of the SBC, with regard to maritime borders, is restricted to the external limit of the Member State’s territorial waters or the contiguous zone, and does not extend to the high seas. (48) On the other hand, those provisions, intended to ensure the uniform application of relevant international law in the context of maritime border surveillance operations, (49) even if they do not create obligations for the Member States participating in those operations or confer powers on them, other than those that may be deduced from that legislation, do bind them to a particular interpretation of those obligations and powers, thereby potentially bringing their international responsibility into play. (50)

63.      Two further observations militate in favour of the conclusions reached above.

64.      Firstly, some provisions of the contested decision concern problems that, as well as being sensitive, are also particularly controversial, such as, for example, the applicability of the principle of non-refoulement in international waters (51) or the determination of the place to which rescued persons are to be escorted under the arrangements introduced by the SAR Convention. (52) The Member States have different opinions on these problems, as is evident from the proposal for a decision submitted by the Commission. (53)

65.      Secondly, a comparison with the rules on border checks contained in the SBC shows that the definition of the practical arrangements for carrying out those checks, in so far as they concern aspects comparable, mutatis mutandis, to those governed by the contested decision, was reserved to the legislature, and this is so notwithstanding the fact that the Commission expressed a different opinion in the proposal for a regulation. (54)

66.      In the light of all the preceding provisions, I consider that the contested decision governs essential elements of the basic legislation within the meaning of the case-law set out in points 26 to 29 of this Opinion.

67.      Therefore, the Parliament’s first complaint must, in my opinion, be upheld.

4.      Second complaint, alleging that the contested decision alters essential elements of the SBC

68.      In its second complaint, the Parliament claims that, by providing that border guards may order the intercepted vessel to change its course towards a destination outside territorial waters and conduct it or the persons on board to a third country [point 2.4(e) and (f) of Part I to the annex], the contested decision alters an essential element of the SBC, that is to say, the principle set out in Article 13, under which ‘[e]ntry may only be refused by a substantiated decision stating the precise reasons for the refusal.’

69.      The Parliament’s argument is based on the premise that Article 13 is applicable to border surveillance too. This interpretation is opposed by both the Council and the Commission, which consider that the obligation to adopt a measure for which reasons are stated pursuant to that provision exists only when a person who has duly presented himself at a border crossing point and been subject to the checks provided for in the SBC has been refused entry into the territory of Union.

70.      The Parliament’s complaint must, in my view, be rejected, with no need to give a ruling, as to the substance, on the delicate question of the scope of Article 13 SBC on which the Court will, in all likelihood, be called to rule in the future.

[***]

5.      Third complaint, alleging that the contested decision amends the Frontex Regulation

[***]

82.      However, the fact remains that Article 1 of the contested decision substantially reduces the latitude of the requesting Member State and, consequently, that of the Agency, potentially interfering significantly with its functioning. An example of this is provided by the events connected with the Frontex intervention requested by Malta in March 2011 in the context of the Libyan crisis. The request by Malta, inter alia, not to integrate into the operational plan the guidelines contained in Part II to the annex to the contested decision met with opposition from various Member States and involved long negotiations between the Agency and the Maltese Government which prevented the operation from being launched. (62)

83.      In actual fact, the annex to the contested decision as a whole, including the non-binding guidelines – whose mandatory force, given the wording of Article 1, it is difficult to contest – (63) is perceived as forming part of the Community measures relating to management of external borders whose application the Agency is required to facilitate and render more effective under Article 1(2) of the Frontex Regulation. (64)

84.      Furthermore, the non-binding guidelines contained in Part II to the annex to the contested decision relating to search and rescue situations govern aspects of the operation that do not fall within Frontex’s duties. As the Commission itself points out in the proposal on the basis of which the contested decision was adopted, Frontex is not an SAR agency (65) and ‘the fact that most of the maritime operations coordinated by it turn into search and rescue operations removes them from the scope of Frontex’. (66) The same is true with regard to the rules on disembarkation. None the less, the contested decision provides for those guidelines to be incorporated into the operational plan.

85.      On the basis of the foregoing considerations, I consider that, by regulating aspects relating to operational cooperation between Member States in the field of management of the Union’s external borders that fall within the scope of the Frontex Regulation and, in any event, by laying down rules that interfere with the functioning of the Agency established by that regulation, the contested decision exceeds the implementing powers conferred by Article 12(5) of the SBC.

[***]

C –    Conclusions reached on the application

89.      In the light of the foregoing, the action must, in my view, be allowed and the contested decision annulled.

IV –  Parliament’s request that the effects of the contested decision be maintained

90.      The Parliament requests the Court, should it order the annulment of the contested decision, to maintain the effects thereof until a new act be adopted, pursuant to the power conferred on it by the second paragraph of Article 264 TFEU. That provision, under which ‘the Court shall, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive’ has also been used to maintain temporarily all the effects of such an act pending its replacement. (68)

91.      In the present case, annulment pure and simple of the contested decision would deprive the Union of an important legal instrument for coordinating joint action by the Member States in the field of managing surveillance of the Union’s maritime borders, and for making that surveillance more in keeping with human rights and the rules for the protection of refugees.

92.      For the reasons set out, I consider that the Parliament’s application should be granted and the effects of the contested decision maintained until an act adopted in accordance with the ordinary legislative procedure shall have been adopted.

[***]”

Click here for Opinion of Advocate General Mengozzi, Case C-355/10, 17 April 2012.

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by | 10 Nov 2011 · 04:29

Malmström: Commission Hopes Migration Talks With Libya Will Begin Soon

In response to a parliamentary question submitted by Italian MEP Fiorello Provera (EFD, Northern League) regarding the “control of migratory flows in the southern Mediterranean”, Commissioner Cecilia Malmström provided a written response on 25 October in which she stated that “[t]he Commission hopes [migration discussions] will start as soon as possible with the Libyan authorities.”

In his question, MEP Provera praised the Italy-Libya Friendship Agreement:  “In an example of successful migration control, Italy and Libya signed a friendship treaty in 2008, which included measures to put Libya in charge of its 2 000 km coastline to stem the flow of illegal migrants into the EU. The agreement had an enormous impact: in 2008, 40 000 migrants attempted to cross illegally into Italy, but according to The Economist, the number of migrants was reduced to 4 406 in 2010. However, following the popular uprising against Gaddafi forces at the start of 2011, 27 000 immigrants managed to cross from Libya into Europe.”

Full text of Ms Malmström’s written response:   “The Commission would like to underline that the discussions which were held on 4 October 2010 in Tripoli by the Members of the Commission responsible for Home Affairs and Enlargement and European Neighbourhood Policy took place in a context, and with interlocutors, which have profoundly changed.

Although the tentative list of common actions identified in October 2010 (1) may still represent a basis for future cooperation between the EU and Libya in the areas of migration, asylum, visa policy and border management, it is clear that the pattern and content of this future cooperation will have to be substantially revised on the basis of new discussions. The Commission hopes these will start as soon as possible with the Libyan authorities.

The revision of the cooperation with Libya, in any case, is necessary also to take into account several important changes which have taken place not only in Libya but also in the EU since the spring.

In particular, the European Council of 24 June 2011 which approved a new policy approach towards the Southern Mediterranean countries. This approach will be characterised by the launch of a Dialogue on Migration, Mobility and Security with these countries aimed at reinforcing cooperation and strengthening relations with Europe’s southern neighbours.

(1) ‘common actions aimed at preventing irregular migration, addressing more effectively its consequences and root causes, promoting the use of the regular channels of migration and mobility, avoiding further loss of migrants’ lives as well as to protecting their fundamental rights’.”

Click here for Question and here for Answer.

Click here for article. (EN)

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by | 23 Sep 2011 · 04:18

EP Study on Implementation of EU Charter of Fundamental Rights and Impact on Frontex, Europol, and EASO

The European Parliament Policy Dept. C has released a study requested by the LIBE Committee entitled: “Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies: Frontex, Europol and the European Asylum Support Office.”  The study is authored by Prof. Elspeth Guild, Dr. Sergio Carrera, Mr Leonhard den Hertog, and Ms Joanna Parkin.  The study will be presented in the 3 October 2011 LIBE meeting.

Abstract:  “This study sets out to examine the impact and implementation of the EU Charter of Fundamental Rights with respect to three EU Home Affairs agencies: Frontex, Europol and EASO. It assesses the relevance of the EU Charter when evaluating the mandates, legal competences and practices of these agencies, particularly in the fields of external border control and the management of migration.  After identifying specific fundamental rights guaranteed in the EU Charter that are potentially put at risk by the actions of these three agencies, and judicial obstacles that prevent individuals from obtaining effective legal remedies in cases of alleged fundamental rights violations, we present a set of policy recommendations for the European and national parliaments.”

Excerpts from the 100+ page study:

“KEY FINDINGS

  • EU home affairs agencies have confirmed themselves as distinct forms of EU regulatory agency. Their scope of action and tasks are not fully predetermined and defined in their founding regulations, at times allowing for the flexible accommodation, and sometimes extension, of their competences to new domains on an ad hoc basis. The three agencies have been granted important operational tasks that go beyond mere ‘regulatory activities’. Yet their dominant framing as depoliticised ‘coordinators’ or ‘facilitators’ of Member State actions has increased their relative autonomy, in some cases preventing a proper democratic scrutiny of the nature and impact of their activities and evading questions of accountability, responsibility and liability in cases of alleged unlawful actions, including potential fundamental rights breaches and risks. These observations are particularly pronounced in the cases of Frontex and Europol. It remains to be seen the extent to which the functioning and activities of EASO will follow a similar pattern.
  • Certain activities performed by Frontex, Europol and EASO as foreseen in their legal remits or developed through informal (de facto) practices present a sensitive relationship with specific fundamental rights provisions foreseen in the EU Charter. This is particularly relevant as regards three categories of actions common to each agency: 1) operational activities, 2) the exchange and processing of information and, in the case of Frontex and Europol, personal data (and the subsequent uses of this information) and 3) relations, cooperation (including so-called ‘capacity building’) and exchange of information with third countries through working arrangements and ‘soft law’. Inter-agency cooperation between Frontex, Europol and potentially in the future EASO, further magnifies the scope, and opens up new venues for, breaches of fundamental rights.
  • The relationship between Frontex, Europol (and to some extent) EASO and fundamental rights is further strained by their ‘home affairs focus’ and the legacy of cross-pillarisation which affects their policies, practices and political ambitions. A conflation of irregular migration with ‘insecurity’ and ‘threat’ legitimises the adoption of coercive policies which, together with a culture of secrecy and lack of transparency, exacerbates the vulnerable status of individuals targeted by the actions of these agencies.
  • There is a profound ‘knowledge gap’ concerning the added value, nature and impact of the activities by Frontex, Europol and EASO on the ground, as well as their full compatibility or coherency with EU internal and external policy priorities and legal frameworks. This report reveals a severe lack of information and monitoring of their actions, especially those of an ‘operational’ nature, which lead to legal uncertainties and accountability gaps that put the agencies at odds with the EU Charter and general rule-of-law principles of the European legal regime.
  • Finally, there is an anachronistic relationship between the overly-politicised nature of some of these EU home affairs agencies as a result of pressures applied by certain EU Member States and the European institutions to demonstrate the practical application of ‘the principle of solidarity’ and ‘mutual trust-based cooperation’ at EU level, and their weak democratic and public accountability. It is paradoxical that, despite the political drivers which steer the activities of EU Home Affairs agencies, their framing as ‘technical’ rather than political actors prevents a full and plural debate and accountability of their actions.

RECOMMENDATIONS

Recommendation 1: A new ‘model of agency-building’ should be ensured and mainstreamed across current and future EU Home Affairs agencies. The model should act as a ‘standard setter’ against which the European Parliament and national parliaments can evaluate and scrutinise the performance and functioning of agencies, while still respecting agencies’ specific characteristics. Given the dynamic evolution of EU Home Affairs agencies, the model could be taken into account if and when the legal mandates of the agencies are opened for re-negotiation. The components and features of this model should include:

  • A more direct involvement of the European Parliament in the appointment of agency Executive Directors by requiring a binding approval from the Parliament for selected candidates.
  • A stronger representation of the European Commission on the Management Boards of agencies (a minimum of 5 Commission representatives, increased weighting of their votes and the granting of veto rights for certain fundamental rights sensitive issues.)
  • Advisory boards or ‘consultative forums’ should be established in all EU Home Affairs agencies as an integral part of their governance structure.
  • Time limits on the confidential status of documents pertaining to agency activities, which oblige the automatic release of such documents to the public within a set time frame should be put in place to promote transparency and public accountability.
  • Institutional structures for individuals to access effective legal remedies in cases of fundamental rights violations should be revised and developed.
  • Codes of conduct and comprehensive training in fundamental rights for all staff involved in agency activities, particularly operational actions, should be streamlined across all Home Affairs agencies.
  • Mechanisms to strengthen compliance with fundamental rights obligations on the ground should be included in the legal mandates of EU Home Affairs agencies: fundamental rights strategies and implementation plans, an in-house fundamental rights officer and independent monitor responsible for initiating disciplinary measures in case of misconduct.
  • To support internal accountability an independent Board of Appeals could be established composed of independent lawyers. Any challenged actions should be frozen while under consideration by the Board of Appeals.
  • EU Home Affairs agencies should have the competence to suspend or terminate activities if violations of fundamental rights occur in the course of those activities.
  • Clear legal definitions should be provided for key concepts related to agency tasks; agency actions should not exceed their legal remits and competences.
  • Comprehensive provisions on data protection should be integral to the legal mandates of EU Home Affairs agencies accompanied by independent supervisory bodies empowered to issue binding opinions.

Recommendation 2: The Inter-Institutional Working Group (IIWG) charged with identifying rules to support a global framework for regulatory agencies should explicitly recognise the fundamental rights-related accountability gaps identified by this report in the activities of EU Home Affairs agencies and take these into account it its final declaration.

Recommendation 3: A closer democratic scrutiny of agencies functioning, planning and work should be ensured through the creation of a permanent inter-parliamentary body or committee dealing specifically with regulatory agencies. The body should be run by the European Parliament’s LIBE Committee and include representatives from the corresponding committees of national parliaments.

Recommendation 4: In order to improve access to justice and effective remedies for individuals regardless of their nationality and/or location, subject to actions by EU Home Affairs agencies, a new branch of the Court of Justice should be established – an Agencies Tribunal – following the same format as the EU Civil Service Tribunal. This body would deal with admissibility claims and complaints of a legal and administrative nature against the agencies and national authorities participating in agencies’ operations and activities.

Recommendation 5: the Commission should have the competence to freeze Agency activities in cases of actual, suspected or imminent breaches of fundamental rights, while the legality of the case is being examined in detail. For such an ex ante procedure to be fully effective, careful attention should be paid to ensuring its overall objectivity, impartiality and democratic accountability. The procedure would be activated by the European Commission (on its own initiative or that of the European Parliament) on the basis of evidence provided by impartial actors such as the EU Agency on Fundamental Rights (FRA) or a new external network of independent and interdisciplinary experts/academics working in close cooperation with civil society organisations based in the different member states.

Recommendation 6: A new piece of secondary law should be adopted specifying the access to rights and to justice by third country nationals subject to new border and migration controls (including those taking place ‘extraterritorially’). The tasks and competences of the EU Home Affairs agencies call for more legal certainty. Their remits and activities and allocation of responsibilities should be clearly defined in law. Any experimental governance activities should be avoided in order to ensure respect for the principles of legal certainty and accountability.

Recommendation 7: Particular attention should be paid to the practical implementation of EASO’s mandate, given the particularly sensitive nature of some of the agency’s tasks from a fundamental rights viewpoint. Guaranteeing the right to asylum envisaged in Article 18 of the EU Charter of Fundamental Rights should constitute an explicit priority for EASO and the agency’s work should be focused first and foremost around this objective.

Recommendation 8: The fundamental rights sensitivities of Europol’s work and safeguards should be taken into account when Europol’s mandate is re-opened for negotiation in 2013. DG Justice should play an active role during the preparation of the Commission’s proposal for a Europol Regulation to conduct a fundamental rights proofreading of the new legislation. Moreover, the European Parliament should ensure that the new ‘model of agency-building’ proposed in Recommendation 1 of this report would be mainstreamed to Europol to the largest extent.

Recommendation 9: The European Parliament should call upon Frontex to no longer conduct any joint operation in the maritime territory of third states, as the consistency of this practice is not only questionable with respect to the rule of law principles of legal certainty and accountability, but it is also at odds with fundamental rights foreseen in the EU Charter.”

Click here for Study.

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by | 03 May 2011 · 04:06

New Study: Implementation of Article 80 TFEU on the principle of solidarity between MS in the field of border checks, asylum and immigration

The European Parliament’s Directorate-General for Internal Policies, Policy Department C, Citizens’ Rights and Constitutional Affairs, released a 120+ page study in April entitled “The Implementation of Article 80 TFEU on the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States in the field of border checks, asylum and immigration.”

The study was made by Prof. Dr. Dirk Vanheule, Project Director, Dr. Joanne van Selm, and Dr. Christina Boswell and was prepared at the request of the LIBE committee.

ABSTRACT:  “The study assesses the scope and implications of Article 80 TFEU, which relates to the principle of solidarity in the field of Border Checks, Asylum and Immigration. The study analyses primary and secondary sources of European law in order to identify the implications of Article 80 TFEU in terms of obligations and jurisdiction. It also discusses the results of a questionnaire that was administered to senior public officials in the EU, collecting their views on the scope and possible mode of implementation of Article 80 TFEU. The study’s conclusions outline some practical solutions for the implementation of new solidarity mechanisms in the field of EU immigration and asylum policies.”

Click here for the full study.

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by | 03 May 2011 · 03:47

MEPs Express Concern Over Possible Changes to Schengen Rules

According to an EP press release, during Monday’s LIBE meeting, MEPs expressed concern over the “Commission’s announcement that it is considering a temporary reintroduction of checks at the EU’s internal borders.”

From the EP press release:

“‘Schengen governance is suffering too much from inter-governmentalism’, said the Commission representative [at the LIBE meeting], adding that the Commission would table a communication on the issue on 4 May. The Commission paper will seek to ‘replace the unilateral re-introduction of border controls by a Community mechanism’. This would enable the Commission temporarily to impose checks at national borders, in exceptional circumstances and as a last resort.  [Click on this link [DRAFT 15-04-2011] for a draft version of the Commission Communication on Migration.]

‘The decision would be taken collectively, and not unilaterally as is now the case’, said the Commission representative, pointing out that, at present, Member States’ decisions to restore internal border checks cannot be challenged before the European Court of Justice.

‘Schengen should not be weakened’, said Civil Liberties Committee rapporteur Carlos Coelho (EPP, PT), asking for ‘some precaution’ on this issue….

According to the Commission representative, the 4 May communication, to be unveiled ahead of the extraordinary meeting of the Justice and Home Affairs Council on 12 May and of the European Council in June, will provide a long-term perspective for migration policies.

The communication will focus on the management of the Schengen area and propose ways to improve the administration of the visa system. It will also address the common asylum system, which needs to overcome the current impasse in the Council, and the ‘security and mobility partnership’….

‘This is not a Schengen problem, this is a social problem’ to do with migration, said Birgit Sippel (S&D, DE), adding that ‘I am bothered about the timing’ of these requests by Sarkozy and Berlusconi.

The ‘Council is not willing to deal with migration’, added Judith Sargentini (Greens/EFA, NL). Concerning the reintroduction of border controls, she called for a clear definition of ‘temporary’. Franziska Keller (Greens/EFA, DE), asked ‘Which are the specific cases and who decides what is an emergency or not?’…”

Click here for EP press release.

Click on this link [DRAFT 15-04-2011] for draft version of the Commission Communication on Migration.

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by | 30 Mar 2011 · 16:07

Frattini Criticises EU for Failure to Assist Italy; Frattini and MEPs Call for Implementation of Temporary Protection Directive and Mandatory Burden Sharing

Italian Foreign Minister Franco Frattini has again criticised what he describes as the EU’s and European Commission’s failure to assist Italy with the migrant situation in Lampedusa. Minister Frattini singled out Commissioner Malmström for his criticism.  A statement on the Italian Foreign Ministry web site says that “Italy continues to solicit Europe’s help in confronting the immigration emergency, not only in terms of economic aid but also in terms of a plan for the distribution of the refugees among Member States. ‘Europe has been totally inert in this period’, Minister Frattini asserted and, commenting on EU Home Affairs Commissioner Cecilia Malmström[‘s] observation that Italy had already received European funding for managing the influx, specified: ‘This is the typical expression of a European bureaucracy that thinks money alone solves everything’, but it is not enough, ‘there need to be policy interventions’. …[I]n addition to funds it is necessary to ‘invoke a European law clearly establishing the adoption of an extraordinary plan with any sudden influx of refugees toward one or more Member States, which includes the distribution of the refugees among Members within the temporary timeframe necessary to repatriate those who are not refugees, as in the case of the Tunisians, who are simply economic immigrants’.”

MEPs Simon Busuttil (Malta) and Salvatore Iacolino (IT) issued a press release calling on the Commission “to activate the Solidarity Mechanism envisaged in EU law in cases of mass influx of displaced persons. … ‘EU law already provides for a solidarity mechanism that can be triggered in the event of a mass influx of displaced persons (Council Directive 2001-55-EC)’ [and ‘we call upon the Commission to activate it’] Busuttil and Iacolino said.”

Click here for Italian Foreign Ministry statement.

Click here for MEPs Busuttil and Iacolino press release.

Click here for link to Temporary Protection Directive.

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by | 17 Mar 2011 · 05:49

EP Foreign Affairs Committee Calls for Reinstatement of EU-Libya Migration Agreement Once New Libyan Govt in Power

While the likelihood of there being a new transitional government in Libya appears less and less likely every day, the European Parliament’s Foreign Affairs Committee yesterday, 16 March, called for the reinstatement of the EU-Libya cooperation agreement on migration, signed in Tripoli on 4 October 2010 by Commissioner Cecilia Malmström, as soon as a new transition government able to respect human rights is in place in Libya.

From the EP Press Release: “MEPs believe that the EU-Libya cooperation agreement on migration – currently suspended – should be reinstated as soon as a new transition government able to respect human rights is in place.  This move … [was] highlighted on Wednesday in a draft resolution by the Foreign Affairs Committee as the best way[] to tackle illegal immigration from conflict regions.   Regretting that ‘the only option available’ was the suspension of the EU-Libya Cooperation Agenda on migration, MEPs stress that the suspension ‘should be revoked as soon as there is a new transitional government willing to promote a democratic and human rights based implementation of the agreement’. Similar migration agreements should be reached with other EU neighbouring countries, said MEPs in the draft resolution, which was adopted by 53 votes to 1, with 3 abstentions.”

The Committee also called for a burden sharing plan “to help resettle refugees from the region and provide support for displaced persons.  This would require activation of Article 80 of the EU Treaty on the Functioning of the European Union (TFEU), which cites the principle of solidarity and fair burden-sharing among all Member States on policies to do with managing border checks, asylum and immigration, including their financial implications.”

Click here for EP Press Release.

Click here for article.

Click here for 18 Jan 2011 Draft Resolution (18.1.2011) and amendments considered (18.2.2011).

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by | 01 Mar 2011 · 16:35

Update from Today’s LIBE Committee’s Discussions re Central Mediterranean

The Hungarian Presidency and LIBE have released summaries regarding today’s LIBE Committee meeting.  Here are some points from the two summaries:

  • Commissioner Malmström emphasized that, so far, migrants had not started coming to Europe from Libya, but the EU had to prepare for this possibility;
  • Frontex Director Laitinen made it clear that the region should not be seen as a whole, but as separate countries with separate problems;
  • Laitinen underlined that from Tunisia only economic migration could be seen so far, but for the moment, as Tunisian authorities have regained control of the migration flow, this had stopped, as well. Since 26 February, no migrants had arrived to Lampedusa.
  • Laitinen also stressed that Italy was not the only entry point for migrants from North-Africa. Greece should not be forgotten in this context.  Low-cost flights from North-Africa to Istanbul were operating, bringing many migrants who then were trying to enter the Schengen area through the Greek-Turkish border;
  • Laitinen said that the possibility of extending Hermes to address Malta’s needs was being examined. More money and staff might be needed if the current emergency persists;
  • MEPs urged Member States to accelerate work on the “asylum package” and stressed the need for solidarity as regards relocating migrants;
  • Malmström said that most of the current migration from Tunisia to Lampedusa appears to be for economic reasons;
  • Malmström said that “Frontex and Member States may not push away people in need of international protection”;
  • MEP Simon Busuttil (EPP, MT) said the three main priorities in Libya are halting violence, sending humanitarian aid and planning for a possible immigration emergency. “What if a mass influx turns into Europe, is there a plan in the drawer to be pull out if this happens?” “Member States show no appetite for relocation.”

Click here and here for the two articles.

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by | 01 Mar 2011 · 06:53

Live Coverage, 1 March, 09:00, LIBE Meeting re Situation in the Central Mediterranean

LIBE will reconvene today, 1 March, 09:00-10:30, to discuss “the situation in the central Mediterranean…. They will consider the democratisation process in the region and its impact on migration flows and EU immigration and asylum policy. In attendance: Hungarian Presidency representative, H.E. Peter Györkös, Cecilia Malmström, Commissioner for Home Affairs and Ilkka Laitinen, Executive Director of Frontex, the EU border security agency.”

Click here for live coverage.

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by | 26 Feb 2011 · 17:46

LIBE Meets 28 Feb-1 March with Full Agenda

LIBE will meet on Monday and Tuesday with a full and timely agenda.  I’ll try to post summaries of several of the meeting documents which are now posted on the EP LIBE Meeting Document page later today or Sunday.

Here are some of the agenda items to be voted on or considered:

28 Feb. 2011, 15.00  (room PHS, Hemicycle)

Item 4. Adoption of Draft Opinion – Migration Flows arising from Instability: Scope and Role of the EU Foreign Policy

[Frenzen’s note – the draft opinion on which the vote will be taken is dated 14 January 2011 and was prepared before the current situation in North Africa became apparent].

Click here for Draft Opinion and here for Amendments 1-53.

Item 12. Consideration of Amendments – Minimum standards on procedures in Member States for granting and withdrawing international protection (recast)

Click here for Draft Report  and here for Amendments 54 – 286.

Click here for “Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on minimum standards on procedures in Member States for granting and withdrawing international protection.”

Item 15. Consideration of Working Document – European Union’s Internal Security Strategy

Click here for Part 1 of the Working Document on the European Union’s internal security strategy and here for Part 2.

1 March 2011, 9.00 (Meeting with the Council and Commission – N.B. this part of the meeting will be held in meeting room JAN 4 Q 2)

Item 17. The democratic process in the central Mediterranean area, the impact on migration fluxes and the EU immigration and asylum policy.

Exchange of views in the presence of:

  • The Hungarian Presidency, H.E. Peter GYÖRKÖS, Permanent Representative of Hungary to the EU
  • European Commission representative (name to be confirmed)
  • Mr. Ilkka LAITINEN, Executive Director of Frontex (European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the EU)

No documents for this item have been posted.

Click here for the Full Agenda of the LIBE meeting and here for the Meeting Documents page.

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