A Threat to Human Rights? The new e-Privacy Regulation and some thoughts on Tele2 and Watson

Matthew White, Ph.D candidate, Sheffield Hallam University

Introduction

In a follow-up to last Christmas’s post, on 10 January 2017, the European Commission released the official version of the proposed Regulation on Privacy and Electronic Communications (e-Privacy Regs). Just as the last post concerned the particular aspect of data retention, this post will too.

Just as the former leaked version maintained, the proposal does not include any specific provisions in the field of data retention (para 1.3). This paragraph continues that Member States are free to keep or create national data retention laws, provided that they are ‘targeted’ and that they comply with European Union (EU) taking into account the case-law of the Court of Justice of the European Union (CJEU) and its interpretation of the e-Privacy Directive and the Charter of Fundamental Rights (CFR). Regarding the CJEU’s interpretation, the proposals specifically refers to Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others, and Joined Cases C-203/15 and C-698/15 Tele2 Sverige AB and Secretary of State for the Home Department. Aspects of the latter case is the focus of this post; the case itself has been thoroughly discussed by Professor Lorna Woods.

So, when is the essence of the right adversely affected?

Before discussing certain aspects of Tele2 and Watson, it is first important to draw attention to the provision which enables data retention in the new e-Privacy Regs. Article 11 allows the EU or its Member States to restrict the rights contained in Articles 5-8 (confidentiality of communications, permissions on processing, storage and erasure of electronic communications data and protection of information stored in and related to end-users’ terminal equipment). From Article 11, it is clear that this can include data retention obligations, so long as they respect the essence of the right and are necessary, appropriate and proportionate. In Tele2 and Watson the CJEU noted that any limitation of rights recognised by the CFR must respect the essence of said rights [94]. The CJEU accepted the Advocate General (AG)’s Opinion that data retention creates an equally serious interference as interception and that the risks associated with the access to communications maybe greater than access to the content of communications [99]. Yet the CJEU were reluctant to hold that data retention (and access to) adversely affects the essence of those rights [101]. This appears to highlight a problem in the CJEU’s reasoning, if the CJEU, like the AG accept that retention of and access to communications data is at least on par with access to the content, it makes little sense to then be reluctant to hold that data retention adversely affects the essence of those rights. The CJEU does so without making any distinction or reasoning for this differential treatment, and thus serves to highlight that perhaps the CJEU themselves do not fully respect the essence of those rights in the context of data retention.

The CJEU’s answer seems only limited catch all powers

The thrust of the CJEU’s judgment in Tele2 and Watson was that general and indiscriminate data retention obligations are prohibited at an EU level. But as I have highlighted previously, the CJEU’s answer was only in response to a very broad question from Sweden, which asked was:

[A] general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime…compatible with [EU law]?

Therefore, provided that national laws do not provide for the capturing of all data of all subscribers and users for all services in one fell swoop, this may be argued to be compatible with EU law. Both the e-Privacy Regs and the CJEU refer to ‘targeted’ retention [108, 113]. The CJEU gave an example of geographical criterions for retention in which David Anderson Q.C. asks whether the CJEU meant that ‘it could be acceptable to perform “general and indiscriminate retention” of data generated by persons living in a particular town, or housing estate, whereas it would not be acceptable to retain the data of persons living elsewhere? This is entirely possible given the reference from Sweden and the answer from the CJEU. In essence the CJEU have permitted discriminatory general and indiscriminate data retention which would in any event respect the essence of those rights.

Data retention is our cake, and only we can eat it

A final point on Tele2 and Watson was that the CJEU held that national laws on data retention are within the scope of EU law [81]. This by itself may not raise any concerns about protecting fundamental rights, but it is what the CJEU rules later on in the judgment that may be of concern. The CJEU held that the interpretation of the e-Privacy Directive (and therefore national Member State data retention laws) “must be undertaken solely in the light of the fundamental rights guaranteed by the Charter” [128]. The CJEU has seemingly given itself exclusive competence to determine how rights are best protected in the field of data retention. It is clear from the subsequent paragraph that the CJEU seeks to protect the autonomy of EU law above anything else, even fundamental rights [129]. This is despite the ECHR forming general principles of EU law and is mentioned in Article 15(1) (refers Article 6(3) of the Treaty of the European Union (TEU) specifically referring to the ECHR as such). Article 11 of the e-Privacy Regs refers to restrictions respecting the ‘essence of fundamental rights and freedoms’ and only time will tell whether the CJEU would interpret this as only referring to the CFR. Recital 27 of the e-Privacy Regs just like Recital 10 and 30 of the e-Privacy Directive refers to compliance with the ECHR, but as highlighted previously, Recitals are not legally binding.

Is the CJEU assuming too much?

A further concern, is that had the European Commission added general principles of EU law into Article 11, the CJEU may simply have ignored it, just as it has done in Tele2 and Watson. The problem with the CJEU’s approach is that it assumes that this judgment offers an adequate protection of human rights in this context. The ECHR has always been the minimum floor, but it appears the CJEU wants the CFR to be the ceiling whether it be national human rights protection, or protection guaranteed by the ECHR. What if that ceiling is lower than the floor? The AG in Tele2 and Watson stressed that the CFR must never be inferior to the ECHR [141]. But I have argued before, the EU jurisprudence on data retention is just that, offering inferior protection to the ECHR, and the qualification by the CJEU in Tele2 and Watson does not alter this. This position is strengthened by Judge Pinto De Albuquerque in his concurring opinion in the European Court of Human Rights judgment in Szabo. He believed that:

[M]andatory third-party data retention, whereby Governments require telephone companies and Internet service providers to store metadata about their customers’ communications and location for subsequent law-enforcement and intelligence agency access, appeared neither necessary nor proportionate [6].

Of course, Judge Pinto De Albuquerque could have been referring to the type of third party data retention which requires Internet Service Providers (ISPs) to intercept data from Over The Top (OTT) services, but his description is more in line with data retention of services’ own users and subscribers.

Conclusions

Although the CJEU has prohibited general indiscriminate data retention, the CJEU does not seem to have prevented targeted indiscriminate data retention. If the European Court of Human Rights (ECtHR) were to ever rule on data retention and follow its jurisprudence and the opinion of Judge Pinto De Albuquerque, this may put EU law in violation of the ECHR. This would ultimately put Member States in a damned if they do, damned if they do not situation, comply with the ECHR, and violate EU law autonomy; comply with EU law and violate the ECHR. When the minimum standards of human rights protection in this context are not adhered to, because of EU law, the ECHR should prevail. As anything less is a threat to human rights, meaning that the (even if well intentioned) CJEU can also be.

JHA4: chapter II:7

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Bailouts, Borrowed Institutions, and Judicial Review: Ledra Advertising

Alicia Hinarejos, Downing College, University of Cambridge; author of The Euro Area Crisis in Constitutional Perspective 

One of the features of the response to the euro area crisis has been the resort to intergovernmental arrangements that largely avoid judicial and parliamentary control at the EU level. The paradigmatic example has been the European Stability Mechanism (ESM), created by the euro area countries in order to provide financial assistance to countries in difficulties, subject to conditionality. The ESM was created through the adoption of an international agreement, the ESM Treaty; it is an intergovernmental mechanism created outside the framework of the EU, but with significant links to it. Most importantly, the ESM ‘borrows’ two EU institutions, namely the Commission and the European Central Bank (ECB), in order to carry out its functions. (Those two bodies, along with the International Monetary Fund, constitute the so-called ‘Troika’ which oversees the controversial bail-out processes).

The nature of the ESM and the way it operates raises important questions regarding judicial protection. As mentioned above, ESM financial assistance is granted after strict conditions have been negotiated and agreed in a Memorandum of Understanding. These conditions typically require the Member State in receipt of assistance to adopt ‘austerity’ reforms that have an impact on its citizens—understandably, these citizens may wish to challenge the validity of these conditions, often questioning their compliance with the EU Charter of Fundamental Rights.

In Pringle, the Court stated that Member States were not within the scope of application of the Charter of Fundamental Rights when creating the ESM, or presumably when acting within its framework. This meant that their actions could not be reviewed for accordance with the Charter (although they can still be reviewed in national courts for compliance with purely national law, or in the European Court of Human Rights for compliance with that treaty). This, however, left open the question of whether, or in what form, the Charter applied to the EU institutions—the Commission and the ECB—when operating under the ESM. This is the question that the Court of Justice had to answer in the Cyprus bailout cases (Ledra Advertising and Mallis).

Cyprus wrote to the Eurogroup in 2012 to request financial assistance, and it was in receipt of ESM assistance from 2013 until 2016. The country had to recapitalize its biggest bank and wind down its second. The Memorandum of Understanding stipulated that bondholders and depositors would bear part of the cost. As a result, the applicants suffered substantial financial losses and turned to the EU courts: first to the General Court, and then on appeal to the Court of Justice. They were challenging the validity of the Memorandum of Understanding (Ledra Advertising), as well as a Eurogroup statement that referred to the conditions attached to the bailout (Mallis); they also asked for damages. In their view, the involvement of EU institutions—the Commission and the ECB—in the adoption of these measures meant that it should be possible for individuals to challenge their validity at the EU level; they also argued that these institutions’ involvement should trigger the EU’s non-contractual liability.

The General Court dismissed all complaints as inadmissible. It decided that neither the Memorandum of Understanding nor the Eurogroup statement could be the subject of an action for annulment; the former because it is not a measure adopted by an EU institution, the latter because it is not intended to produce legal effects with respect to third parties. It considered that the involvement of the Commission and the ECB in the adoption of these measures was not enough to attribute authorship to them, or to trigger the non-contractual liability of the Union.

The Court of Justice agreed, in part, with the General Court: neither the Eurogroup statement (Mallis) nor the Memorandum of Understanding (Ledra Advertising) can be the object of an action for annulment. The Court insisted again on its finding in Pringle that ESM acts fall outside the scope of EU law; the involvement of the Commission and the ECB does not change this, and is not enough to attribute authorship of these acts to them for the purposes of judicial review.

Yet the Court goes on to reveal a twist in Ledra Advertising: even if they are not its authors, the involvement of the Commission and the ECB in the adoption of an ESM Memorandum of Understanding may be unlawful, and thus able to trigger the non-contractual (damages) liability of the EU. The Commission, in particular, retains its role as ‘guardian of the Treaties’ when acting within the ESM framework. As a result, the Commission should not sign an ESM act if it has any suspicions as to its accordance with EU law, including the Charter.

The Court repeated the usual rules for the EU institutions to incur non-contractual liability: (a) they must have acted unlawfully, (b) damage must have occurred, and (c) there must be a causal link between the unlawful act and the damage. Not just any unlawful act gives rise to damages liability: there must be ‘a sufficiently serious breach of a rule of law intended to confer rights on individuals’. While the right to property enshrined in the Charter was a ‘rule of law intended to confer rights on individuals’, that right is not absolute: Article 52 of the Charter allows interference with some Charter rights. Applying that provision, the Court came to the conclusion that the measures contained in the Memorandum did not constitute a disproportionate and intolerable interference with the substance of the applicants’ right to property, given ‘the objective of ensuring the stability of the banking system in the euro area, and having regard to the imminent risk of [greater] financial losses’.

So individuals can challenge the EU institutions’ bailout actions by means of an action for damages (non-contractual liability), but not by means of an annulment action. It is useful to remember that the rules on access to the EU courts as regards those two types of remedy are quite different. The standing rules are more liberal for damages actions: it’s sufficient to allege that damages have been suffered as a result of an unlawful act by the EU, whereas it’s much harder to obtain standing to bring annulment actions. The time limits are more liberal too: individuals have five years to bring damages cases, but only two months to bring actions for annulment. On the other hand, the threshold to win cases is much higher for damages cases: any unlawfulness by the EU institutions leads to annulment of their actions, but only particularly serious illegality gives rise to damages liability.

In any case, we know from the Court’s ruling that breaches of at least some Charter provisions within the ESM framework could potentially give rise to damages liability. In the anti-austerity context, it should be noted that social security and many social welfare claims fall within the scope of the right to property, according to the case law of the European Court of Human Rights. In the case at stake, the Court did not discuss the proportionality of the interference with the applicant’s rights at much—or any—length, but it is clear that future applicants will face an uphill struggle.

On the whole, Ledra Advertising is a welcome change from other cases concerning measures adopted as a result of a bailout, where the Court’s approach had been to deny the existence of any link to EU law. Indeed, it seems unavoidable that the EU should bear the appropriate degree of responsibility when allowing its EU institutions to operate within the ESM framework. This is not to say that it will be easy for individuals to be awarded damages; as this case illustrates, the threshold is extremely high. Moreover, while a significant aspect of the role of the EU institutions within the ESM has been clarified, questions remain concerning the judicial and democratic accountability of this mechanism. Overall, however, Ledra Advertising is a step in the right direction.

Barnard and Peers: chapter 19, chapter 8

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How Many Victims of Human Trafficking in the EU? A Statistical Quagmire

Dr. Vladislava Stoyanova

Postdoctoral Fellow, Faculty of Law, Lund University; Author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in Europe (Cambridge University Press, 2017)

On 19 May 2016 the Commission issued its first report (COM(2016) 267 final)) on the progress made in the fight against trafficking in human beings. As its title suggests, the report is based on Article 20 of the 2011 EU Trafficking Directive (Directive 2011/36/EU). The report has the objective to examine the progress made concerning prosecution of trafficking, protection of victims and prevention. It shows trends in trafficking, including statistical information. It is accompanied by a staff working document (SWD(2016) 159 final) that provides detailed factual information complementing the report.

Notably, this is not a report on the extent to which Member States have complied with the directive. Such a report is indeed required by Article 23 of the directive; however, despite the set deadline of 6 April 2015, so far the Commission has not issued a document assessing compliance. The Commission is late with its assessment with more than a year. A further report was due by 6 April 2016 on the circumstances of the use of services of trafficking victims. It has not been issued yet.

Focusing on the above mentioned progress report, it shows that according to the information submitted by Member States for the period 2013 – 2014 there were 15 846 registered victims of human trafficking. It is noted that this number is lower than the number recorded for the previous period 2010 – 2012. A clarification is immediately offered that ‘[a]lthough the data collection methods used for both periods are similar, it would not be advisable at this stage to compare the data, either between the two exercises or across individual years, due to possible differences in recording methods and legal definitions. For this reason, the discrepancy in the annual totals, and in particular the reasons why fewer victims of trafficking were registered, are issues that need to be explored and analysed further’ (page 5).

Indeed, the issue as to who is and who is not a victim of trafficking and who is registered and who is not registered as a victim of human trafficking are issues that have to be explored and analysed further. I plan to do this below. The Commission is correct that there might be differences in recording methods and legal definitions; however, the assumption that these differences will be somehow remedied so that we can get a clearer picture is far from warranted.

The number 15 846 refers to registered victims. Who are these registered victims? These are victims who are ‘both identified and presumed’ (page 4 of the report). It is clarified that some Member States have included both categories in their data collection, whereas others have only included one of the two categories. Already at this stage one starts to get suspicious about the data since it conflates different categories. Footnote 15 of the Commission report is indented to clarify the term ‘identified victim’: ‘[i]n accordance with the definition in the anti-trafficking Directive, the term “identified victim” refers to a person who has been formally identified by relevant authorities as a victim of trafficking.’ The text of the directive certainly does not deploy the term ‘identified victim’. It simply refers to victims and its Article 11(4) obliges the Member States to ‘take the necessary measures to establish appropriate mechanisms aimed at the early identification.’ The directive does not establish a separate legal status called ‘identified victim of human trafficking.’

The text of the earlier Directive 2004/81/EC (which concerns the immigration status of trafficking victims) does not refer to ‘identified victims’ either. It refers to victims who are holders of residence permits since they cooperate with the authorities in the fight against trafficking. Strangely, the Commission report does not even contain information about the number of such victims. This is very important information because when it comes to third country nationals, their formal identification as victims of human trafficking might not mean much and the assistance measures might not mean much if they cannot remain on the territory of the Member States. It should be also reminded here that the main EU Trafficking Directive (ie, the 2011 Directive) does not regulate the issue of the presence of victims on the territory of the Member States.

Footnote 15 of the Commission report continues to say that ‘[t]he term “presumed victim” is used for a victim of trafficking who has met the criteria of the EU Trafficking Directive but has not formally been identified by the competent authorities as a victim, or has declined to be formally and legally identified as a victim of trafficking [emphasis added].’ The term ‘presumed victims’ does not seem to be used here in the sense of Article 11(2) of the EU Trafficking Directive. The latter provision refers to individuals who have to be assisted and supported ‘as soon as the competent authorities have a reasonable-grounds indication for believing’ that they are victims. Neither is it used in the sense of Articles 5 and 6 of Directive 2004/81/EC, which refer to circumstances when the national authorities ‘take the view that a third country national may fall into the scope of this directive [i.e. may be a victim of trafficking]’ and extend a reflection period to this person. Rather ‘presumed victims’ appears hard to determine category in the way that it has been used in the report. In addition, it appears illogical how one can be a register victim (which implies some form of official recognition of one’s status) without being formally identified by the competent national authorities. As mentioned above, ‘presumed victims’ are included in the category of ‘registered victims’.

How do Member States after all formally identify individuals as victims of human trafficking? This is an important question if the Commission wants to ‘improve the reliability and comparability of data’ as stated on page 5 of its report. The Trafficking Directive does not stipulate which national authority has to be mandated with victim identification; its Article 11(4) simply says that ‘Member States should take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with relevant support organizations.’ Directive 2004/81/EC does not even have a provision about victim identification. It can be assumed from its provisions though that the national authorities responsible for criminal investigations and prosecutions identify victims by granting them a reflection period ‘so that they can take an informed decision as to whether to cooperate with the competent authorities’. Thus, in many EU Member States the authorities responsible for crime investigation and prosecution are mandated to identify victims. This is certainly problematic since eventually victim identification is intimately linked with crime investigation.

This results in refusals to formally identify victims if there is no basis for initiation or continuation of criminal proceedings, a problem exposed with the recent judgment L.E. v. Greece Application No. 71545/12 delivered by the European Court of Human Rights on 21 January 2016.[1] In other Member States, the immigration authorities might be mandated to identify victims of human trafficking. A relevant example in this respect is the United Kingdom, where the UK Border Agency identifies migrants as victims of human trafficking. In this way, crime investigation and victim identification are clearly separated. Against this diversity of national practices, it might be difficult to get a comparable date and even clear idea who is a registered victim of human trafficking in the EU.

Certainly, the problem is not only one of procedure, but also of substance. The EU Trafficking Directive defines human trafficking and determines the minimum scope of criminalization. However, the Member States can interpret trafficking more expansively. An example to this effect is Bulgaria where the crime of human trafficking is interpreted in an exceedingly wide way which leads to high number of prosecutions and victims.[2] The Commission itself does not seem to be particularly clear about the conceptual limits of trafficking either. It defines it as ‘the buying, selling and exploitation of adults and children [emphasis added]’ (page 2 of the report). In this way, it subsumes exploitation under the definition of human trafficking.

However, on page 7 of the report the Commission observes that ‘[w]hile it is important to stress that not all exploitative situations in the EU labour market are a result of trafficking in human beings, some may be. In these cases all victims of trafficking for labour exploitation must be properly identified and helped.’ Here, a distinction appears to be made between trafficking and exploitative situations. Overall, though, there is no clear distinction between the two. It is thus hard to advance measures which can tackle each phenomenon. Perhaps, even more disturbingly, all the efforts have been focused on human trafficking (in whichever way it is interpreted in different jurisdictions). Little attention has been paid on severe forms of labour exploitation. As a consequence, the EU Fundamental Rights Agency in its 2015 report Severe Labour Exploitation: Workers Moving within or into the European Union. States’ Obligations and Victims’ Rights warned that

While trafficking has attracted much attention, the severe exploitation of workers in employment relationships – which may or may not occur in a context of trafficking – has not. This difference in the level of attention is reflected by an institutional setting in which specialised actors are available to deal with trafficking cases but not with cases of severe labour exploitation.    

Finally, what has been the impact of the newest trafficking instrument, i.e. the 2011 Trafficking Directive? Is it indeed the case, as the Commission suggests, that ‘with the correct and full implementation of the EU Directive, Member States will ensure the prevention of the crime, the prosecution of the perpetrators and most importantly, the protection of victims’ (page 15 of the report)? This is highly doubtful. The data from the report is not particularly promising. In addition, the data itself is very confusing which hampers clear understanding of the phenomenon that we have to address.   

Barnard & Peers: chapter 25

JHA4: chapter I:7

Photo credit: notitarde.com

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[1] Vladislava Stoyanova, ‘L.E. v. Greece: Human Trafficking and the Scope of States' Positive Obligations under the ECHR’ 3 European Human Rights Law Review (2016) 290.

[2] Vladislava Stoyanova, ‘The Crisis of a Legal Framework: Protection of Victims of Human Trafficking in the Bulgarian Legislation’ The International Journal of Human Rights (2013); Vladislava Stoyanova, ‘The Crisis of a Definition: Human Trafficking in Bulgarian Law’ 15(1) Amsterdam Law Forum (2013).

Referendum Briefing 3: Does the EU have a ‘democratic deficit’?

Laurent Pech, Professor of Law, Middlesex University

Steve Peers, Professor of Law, University of Essex

The EU is regularly accused from suffering a ‘democratic deficit’. In particular, it is often asserted that all EU decisions are made by the EU Commission – who are ‘unelected bureaucrats’.  

As we demonstrate in this post, this criticism is clearly invalid. It fundamentally misunderstands (a) the powers that the Commission has – and more generally how decisions are made in the European Union; and (b) the way in which the European Commission gets into office. We will examine each of those issues in turn.

Who does what? Does the Commission adopt all EU laws?

The crucial thing about the EU system is that the Commission does not have anywhere near as much power as many people think it has. The standard EU’s decision-making process is: the Commission alone makes legislative proposals. Those proposals are then considered by the Council (the intergovernmental body representing elected national governments), jointly with the elected Members of the European Parliament (representing EU citizens), whose powers have been gradually and significantly increased over the last three decades. Some people say that the Council and European Parliament simply rubber-stamp Commission proposals, but that is not true: they sometimes reject them and almost always amend them.

This graph illustrates the EU decision-making process:

 

In addition, national parliaments have seen their involvement with the EU’s decision-making process formally recognised and all draft legislative acts, for instance, must be forwarded to them. If enough national parliaments object to an EU proposal, it must be reconsidered (a so-called ‘yellow card’). The UK’s renegotiation deal says that if enough national parliaments object to a proposed law, it will be rejected (so-called ‘red card’). Any major changes to the EU (new Member States, new Treaties) have to be approved by national parliaments.

Overall guidance on what policies the EU should take comes not only from the Commission but also from the European Council – the EU body made up of Member States’ Prime Ministers and Presidents, such as Cameron, Hollande and Merkel. When they call for the proposal of an EU law on an issue the Commission usually reacts quickly. The Council and European Parliament can also ask the Commission to propose laws.

Although a lot of EU decisions are made by a ‘qualified majority’ in the Council (meaning they need 55% of the Member States with 65% of the population to support them), there is a tradition of seeking wide consensus. So – as the graph at the top of this blog post indicates – the UK has in recent years voted in favour of 95% of EU laws.

Once an EU law is adopted the Treaties say that implementation powers are left in principle to Member States. So it’s up to national authorities to apply most laws which Member States have agreed in the EU. As an exception the Commission has powers in a few cases to adopt some detailed further rules to implement the technical details of an EU law which was already agreed, so that the EU law applies in the same way in all Member States. But the Commission’s use of such powers is controlled by Member States and the European Parliament, who can block such draft technical measures. This is similar to the process in most national systems – including the UK, where the government drafts ‘Statutory Instruments’ which the House of Commons or House of Lords can block.

This system is a complex one because it has to reflect several and sometimes competing objectives such as the necessity to ensure the fair treatment of all Member States from the largest to the smallest. Member States insist on retaining their control over the EU’s decision-making process to democracy at the national level, and democratic legitimacy at EU level is reflected by the strengthening over time of the legislative, budgetary and supervisory roles of the European Parliament whose position as a ‘co-legislator’, jointly with the Council, is now firmly established. It is because the member states believe that their national interests were and continue to be better served by an independent Commission with atypical powers (e.g. the Commission’s monopoly on legislative initiative or its enforcement powers) that the Commission’s role, functions and powers have been left essentially unchanged since the Treaty establishing the European Economic Community of 1957.

To argue that such the EU’s system of governance is not democratic illustrates a failure to grasp that, in fact, the EU’s institutional framework has been specifically designed not to function on the basis of a mere majority rule but on the contrary, as an highly consensual system where nothing of importance can be agreed without the joint consent of the Commission, Parliament and Member States’ governments in the Council.

With respect to the Commission, critics quite often point out that it alone has the right of legislative initiative, meaning that legislative acts may be adopted solely on the basis of a Commission proposal. However, they usually fail to point out that, as noted above, EU leaders often ask for the Commission to propose a new EU law; both the Council and the Parliament have the formal power to ask the Commission for a proposal; and the Council and the Parliament must adopt proposals from the Commission for them to become law.

In practice, the annual work programmes adopted by the Commission are in any event devised in the light of a process of intensive and continuous dialogue with the European Parliament and the Council. One may also note in passing that at the national level, bills tend to be written by civil servants working for ministerial departments. In the UK, in practice Private Members’ Bills cannot be adopted unless the government wants them to be.

Finally, a word about EU judges. They are often described as ‘unelected’ – but of course judges in the UK and most other countries are unelected as well. In fact, the UK has a veto over the appointment of EU judges. So none of them can take up their jobs in the first place or keep their jobs (appointments are reviewed every six years) without the UK government’s approval.

The European Commission

It’s simply inaccurate to describe the Commission as ‘unelected’. Rather, like many national legislative bodies, it is elected indirectly – meaning that it is appointed by people who are directly elected. A candidate for President of the Commission is selected by the national Heads of State and Government (each democratically accountable to their own Member State), taking into account the results of the elections to the European Parliament. In other words, the choice of the Commission President is based on which party got the most seats in the European Parliament elections – just as the choice of the UK Prime Minister is based on who gets the most seats in a UK general election. (The Annex to this blog post shows how the Commission is appointed in graphic form - compared to the UK).

Moreover, starting from the current Commission (which took office in 2014) the candidates for Commission President had actually been nominated by European political parties in advance. So voters could make a judgment on which potential Commission President they preferred when they cast their vote in European Parliament elections – just as they can do the same for potential Prime Ministers when voting in a UK general election.

This allows a connection between the voting choices made by citizens all across the EU in the European Parliament elections with the political colour of the selected candidate to the presidency of the Commission. The nomination of the President must be further approved by a majority of those elected Members of the European Parliament. For those who ask ‘how can I get rid of the Commission President?’, the answer is simple. He got that job in the first place because of the results of the European Parliament elections. If he runs again to be Commission President and you don’t want him to keep the job, don’t vote for his party (or for another party that would back him).

Then the remaining members of the Commission are each proposed by Member States’ elected governments, and as a body, they must be subject to a vote of approval by the European Parliament. Prospective commissioners are also subject to individual questioning by the appropriate European Parliament committee prior to the European Parliament’s approval.

How can voters vote out the European Commission as a whole? They don’t get to vote on the entire Commission – but that’s because the appointment process defers to Member States. People criticise the EU for not being a democracy, but in many ways it is an international organisation. We don’t usually expect international organisations to be democratic as such; rather their accountability comes from national governments’ participation in them. So we don’t get to ‘vote for NATO’ or ‘vote for the UN Security Council’; we vote for governments that represent us in those international institutions. Similarly, a vote in a British national election determines the political background of the British Commissioner: the current Commissioner is a Conservative, and the previous one was Labour.

Some argue that Commissioners and/or its President must be directly elected. The idea of direct election for the president of the European Commission however reveals not only a misunderstanding of the Commission’s role (it is not supposed to act as the government of the EU) but also a lack of understanding of how national Heads of State or Government are appointed. For instance, there is no actual direct election for selecting the Prime Minister in parliamentary regimes like the UK.

The Prime Minister would certainly be locally elected as an MP – like David Cameron is in Witney. Yet, he or she will become Prime Minister, strictly speaking, on the sole ground of being the victorious leader of a political party, which selected that leader beforehand, without asking citizens’ opinion. We also had examples in the UK of seeing an MP being coroneted PM without a general election being organised (Brown, Major and Callaghan, just in recent years).  In other words, it is wrong to assume that electors directly decide on the identity of the Prime Minister; rather they select the leader of the country from a pool of names put forward by political parties. This is essentially equivalent to the appointment of the EU Commission.

Similarly, it is also wrong to assume that national cabinet ministers (equivalent to the rest of the Commission) are always elected officials. This is for instance the situation in France where anyone can be appointed minister without having ever been elected to the national Parliament or to a local assembly. The UK cabinet has ministers from the unelected House of Lords. Even worse, in a multi-party system, as opposed to a two-party system, the citizens may find themselves with a government that does not represent the most popular political party, but which is the fruit of arrangements made between political parties after the elections are held – like the UK coalition government between 2010 and 2015. With these examples in mind, the selection and appointment of Commissioners by the European Council and the European Parliament cannot be said to be less ‘democratic’ nor less ‘transparent’ than the equivalents in the UK or other Member States.

Furthermore, it’s possible for the Commission to be dismissed by the European Parliament – just like the UK’s House of Commons can pass a vote of non-confidence in a government.  However, it’s true that this power has never successfully been used. Does the EU suffer from a comparison with the Member States in this respect? Not quite, as the power to dismiss the government has simply been lost at national level for a range of reasons: fixed election dates, the so-called rationalisation of parliamentary rules and a more disciplined partisan system. In the UK, for instance, we only have one example of a government brought down by a motion of no confidence since World War II.

Conclusion

At the end of the day, the European Union’s institutional architecture and decision-making process merely reflect the twofold legitimacy of the EU as a union of States and of citizens on which competences have been conferred to meet common objectives. In other words, the legitimacy of the EU’s institutional architecture flows from two sources: the Member States, which are represented at the EU level in the European Council by their Heads of State or Government and in the Council by their governments which are democratically accountable to their national Parliaments, and the European Parliament, which is directly elected and represents European citizens.

In this context, the highly consensual and arguably cumbersome process governing the selection and appointment of the Commission may be perhaps better understood and justified. If anything, one may even argue that it would be unwise, and one may even say undemocratic, to push for a complete ‘democratisation’ of the Union’s institutional architecture and organise the transformation of the Commission into something akin to a national government. Indeed, and contrary to popular wisdom, the strict implementation of a purely majoritarian system and the direct transplantation of the mechanisms associated with the national model of parliamentary democracy would, in all likelihood, undermine the EU’s legitimacy due to the ‘thin’ character of the European Union’s sense of collective identity.

The resulting original system of government could be a hard sell to the man on the street, as it may differ from his instinctive (and, in most cases, idealised) understanding of what a democracy is or how one’s democratic system actually works. It may, nonetheless, be defended in the name of democracy, one where the value of consensus trumps the majoritarian features classically associated with the Westminster model of parliamentary or representative democracy. This is not to say of course that there is no room for improvement when it comes to the democratic life of the EU.  It remains however ludicrous to describe the EU as an undemocratic ‘superstate’. For all its imperfections, the EU may actually offer the chance of political leadership at a level where the social impact of globalisation could be democratically and effectively managed. One may only that hope that people remember, to paraphrase Voltaire, that the best can quite often be the enemy of the good.

Graphics credits: The Conversation (Council voting); tasc.ie (EU decision-making); uktostay.eu (Commission appointment)

Annex: Appointing and dismissing the European Commission 

The Commission’s draft EU-US Privacy Shield adequacy decision: A Shield for Transatlantic Privacy or Nothing New under the Sun?

  

Dr. Maria Tzanou (Lecturer in Law, Keele University)

On 6 October 2015, in its judgment in Schrems, the CJEU invalidated the Commission’s decision finding that the US ensured an adequate level of protection for the transfer of personal data under the Safe Harbour framework on the basis that US mass electronic surveillance violated the essence of the fundamental right to privacy guaranteed in Article 7 EUCFR and the right to effective judicial protection, enshrined in Article 47 EUCFR (for an analysis of the judgment, see here).

             

On 2 February 2016, the Commission announced that a political agreement was reached on a new framework for transatlantic data flows, the EU-US Privacy Shield, which will replace the annulled Safe Harbour. On 29 February 2016, the Commission published a draft Privacy Shield adequacy decision followed by seven Annexes that contain the US government’s written commitments on the enforcement of the arrangement. The Annexes include the following assurances from the US: Annex I, a letter from the International Trade Administration of the Department of Commerce, which administers the programme, describing the commitments that it has made to ensure that the Privacy Shield operates effectively; Annex II, the EU-US Privacy Shield Framework Principles; Annex III, a letter from the US Department of State and accompanying memorandum describing the State Department’s commitment to establish a Privacy Shield Ombudsperson for submission of inquiries regarding the US’ intelligence practices; Annex IV, a letter from the Federal Trade Commission (FTC) describing its enforcement of the Privacy Shield; Annex V, a letter from the Department of Transportation describing its enforcement of the Privacy Shield; Annex VI, a letter prepared by the Office of the Director of National Intelligence (ODNI) regarding safeguards and limitations applicable to US national security authorities; and, Annex VII, a letter prepared by the US Department of Justice regarding safeguards and limitations on US Government access for law enforcement and public interest purposes.

Similar to its predecessor, Privacy Shield is based on a system of self-certification by which US companies commit to a set of privacy principles. However, unlike Safe Harbour, the draft Privacy Shield decision includes a section on the ‘access and use of personal data transferred under the EU-US Privacy Shield by US public authorities’ (para 75). In this, the Commission concludes that ‘there are rules in place in the United States designed to limit any interference for national security purposes with the fundamental rights of the persons whose personal data are transferred from the Union to the US to what is strictly necessary to achieve the legitimate objective.’ This conclusion is based on the assurances provided by the Office of the Director of National Surveillance (ODNI) (Annex VI), the US Department of Justice (Annex VII) and the US Secretary of State (Annex III), which describe the current limitations, oversight and opportunities for judicial redress under the US surveillance programmes. In particular, the Commission employs four main arguments arising from these letters to reach its adequacy conclusion: Firstly, US surveillance prioritises targeted collection of personal data, while bulk collection is limited to exceptional situations where targeted collection is not possible for technical or operational reasons (this captures the essence of the principles of necessity and proportionality, according to the Commission). Secondly, US intelligence activities are subject to ‘extensive oversight from within the executive branch’ and to some extent from courts such as the Foreign Intelligence Surveillance Court (FISC). Thirdly, three main avenues of redress are available under US law to EU data subjects depending on the complaint they want to raise: interference under the Foreign Intelligence Surveillance Act (FISA); unlawful, intentional access to personal data by government officials; and access to information under Freedom of Information Act (FOIA). Fourthly, a new mechanism will be created under the Privacy Shield, namely the Privacy Shield Ombudsperson who will be a Senior Coordinator (at the level of Under-Secretary) in the State Department in order to guarantee that individual complaints are investigated and individuals receive independent confirmation that US laws have been complied with or, in case of a violation of such laws, the non-compliance has been remedied.

The draft Privacy Shield framework may have been hailed as providing an ‘essentially equivalent’ level of protection for personal data transferred from the EU to the US, but despite the plethora of privacy-friendly words (‘Privacy Shield’, ‘robust obligations’, ‘clear limitations and safeguards’) one cannot be very optimistic that the new regime will fully comply with the Court’s judgment in Schrems. A first problematic aspect with the US assurances is that they merely describe the US surveillance legal framework and the relevant safeguards that already exist. In fact, the only changes that were introduced in the US following the Snowden revelations was the issuance of Presidential Policy Directive 28 (PPD-28) (in January 2014) which lays down a number of principles on the use of signal intelligence data for all people; and the passing of the USA Freedom Act which modified certain US surveillance programmes and put an end to the mass collection of Americans’ phone records by the NSA (in June 2015).  Finally, in February 2016, the US Congress passed the Judicial Redress Act which was signed into law by President Obama. Given that one can reasonably assume that the Court was aware of these developments when laying down its judgment in Schrems in October 2015, it seems that, with the exception of the Ombudsperson, Privacy Shield does not change much in US surveillance law. In fact, the Commission has entirely based its draft adequacy analysis on a mere detailed description of this law without any further commitment that this will improve in any way in order to comply with EU fundamental rights as interpreted by the CJEU.

While the assurance that US surveillance is mainly targeted and does not take place in bulk is important, there is no reference to the fact that US authorities access the content of the personal data that was deemed to violate the essence of the right to privacy in Schrems. Furthermore, even if the US authorities engage only in targeted surveillance, the CJEU has held in Digital Rights Ireland that the mere retention of private-sector data for the purpose of making them available to national authorities affects Articles 7 and 8 EUCFR and might have a chilling effect on the use by subscribers of platforms of communication, such as Facebook or Google and, consequently, on their exercise of freedom of expression guaranteed by Article 11 EUCFR. Individuals, when faced with surveillance, cannot know when they are targeted; nevertheless, the possibility of being the object of surveillance has an effect on the way they behave. Insofar as Article 47 EUCFR and the right to effective judicial protection is concerned, the Commission itself notes in its draft adequacy decision that the avenues of redress provided to EU citizens do not cover all the legal bases that US intelligence authorities may use and the individuals’ opportunities to challenge FISA are very limited due to strict standing requirements.

The creation of the Ombudsperson with the important function of ensuring individual redress and independent oversight should be welcomed as the main addition of the draft Privacy Shield. Individuals will be able to access the Privacy Shield Ombudsperson without having to demonstrate that their personal data has in fact been accessed by the US intelligence activities and the Ombudsperson, who will be carrying out his functions independently from Instructions by the US Intelligence Community will be able to rely on the US oversight and review mechanisms. However, there are several limitations to the function of the Privacy Shield Ombudsperson. First, the procedure for accessing the Ombudsperson is not as straightforward as lodging a complaint before a national Data Protection Authority (DPA). Individuals have to submit their requests initially to the Member States’ bodies competent for the oversight of national security services and, eventually a centralised EU individual complaint handling body that will channel them to the Privacy Shield Ombudsperson if they are deemed ‘complete’. In terms of the outcome of the Ombudsperson’s investigation, the Ombudsperson will provide a response to the submitting EU individual complaint handling body –who will then communicate with the individual- confirming (i) that the complaint has been properly investigated, and (ii) that the US law has been complied with, or, in the event of non-compliance, such non-compliance has been remedied. However, the Ombudsperson will neither confirm nor deny whether the individual has been the target of surveillance nor will the Ombudsperson confirm the specific remedy that was applied. Finally, Annex III stipulates that commitments in the Ombudsperson’s Memorandum will not apply to general claims that the EU-US Privacy Shield is inconsistent with EU data protection requirements. In the light of the above, the Privacy Shield Ombudsperson does not seem to provide the redress guarantees of a supervisory authority such as the DPAs as the AG had asked in his Opinion in Schrems.

Draft Privacy Shield is problematic for another reason as well: it puts together the regulative framework for commercial transactions with the regulation for law enforcement access to private sector data. These are, however, different issues and they should be dealt with separately. It is important to encourage and facilitate transborder trade, thus flexible mechanisms allowing for undertakings self-compliance with data protection principles should continue to apply. But, the challenges of online surveillance on fundamental rights are too serious to be covered by the same regime and some ‘assurances’ that essentially describe the current US law. Two solutions could possibly deal with this problem: Either the US adheres to the Council of Europe Convention No. 108 and abandons the distinction between US and EU citizens regarding rights to redress or a transatlantic privacy and data protection framework that ensures a high level of protection of fundamental rights and the transparency and accountability of transnational counter-terrorism operations (the so-called ‘umbrella agreement’) is adopted. Regrettably, the current form of the umbrella agreement is very problematic as to its compatibility with EU data protection standards- or even human rights standards in general, and, therefore, does not seem to provide an effective solution to the issue.

      

A recently leaked document reveals that the Article 29 Working Party has difficulties in reaching an overall conclusion on the Commission’s draft adequacy decision and supports the view that Privacy Shield does not fully comply with the essential guarantees for the transfer of personal data from the EU to the US for intelligence activities.

Should the Commission nevertheless decide to proceed with the current draft, it is highly possible that the CJEU will be called in the future to judge the adequacy of Privacy Shield in a Schrems 2 line of cases.

Photo credit: www.teachprivacy.com

‘Wisdom and goodness to the vile seem vile’: Towards a third phase of the Common European Asylum System?

Steve Peers*

How to fix the EU’s troubled Common European Asylum Policy? The Commission has given its views today in the form of a discussion paper, with plans for further legislation. Will this fix the problems?

The first phase of the EU’s Common European Asylum Policy was set in place in the form of legislation adopted over 2003-05. The second phase is based on legislation adopted between 2011-13. (For more details, see volume 3 of the Commentary on EU Immigration and Asylum Law, which I co-authored). Today’s communication effectively outlines the plans for a third phase – without actually using that phrase. It examines many facets of EU asylum policy, and also mentions immigration policy. I’ll look at the announced plans in turn.

It’s worth making two general points at the outset. First, the UK is bound by the first-phase asylum laws, but not by the second-phase laws, other than the Dublin rules, Eurodac, and the law setting up the European Asylum Support Agency. It can opt out of any of the third-phase laws, but if it opts out of new laws amending those laws which it’s already bound by, the EU Council could decide to end the UK’s participation in those laws, on condition that operating a different system for the UK is effectively impossible. (Ireland is in broadly the same position).

While it’s sometimes asserted that ‘the EU court controls UK asylum laws’, the UK chose to opt into those first-phase laws, and used its veto to ensure that they were consistent with existing UK law. The only British cases on asylum which have ever reached the EU court have been about the Dublin system. And eventual access to citizenship of a Member State by asylum-seekers is far harder to obtain than some imagine it to be.

Secondly, any proposals the Commission makes will have to be approved by a qualified majority of participating Member States (in the EU Council) and by the European Parliament. Obviously there’s no guarantee of obtaining either in this controversial area.

The Dublin system

The discussion paper devotes the most space to the plans to reform the EU’s Dublin system, currently set out in the Dublin III Regulation. The principal problem with this Regulation is its allocation of responsibility in most cases to the first EU state which the asylum-seeker entered. With its declining economy and a sharp increase in the number of asylum-seekers, Greece cannot handle this burden. Although the EU has already tried to address this problem, in the form of two Decisions relocating some asylum-seekers away from Italy and Greece (discussed here), this has not worked well in the absence of Member State willingness to apply the system: barely 1,000 of the promised 160,000 have been relocated. In addition, the second Decision has been challenged by two cases in the EU Court (see discussion here of one of these cases).

How to address this? The Commission suggests two options: a sort of compensation system that would kick in once a Member State had particular burdens, or a quota system reallocating all asylum-seekers across the EU. The former option is based on the current relocation decisions; it should be noted that the Commission already proposed amendments to the Dublin rules along these lines last September, but there seems to be little interest in this proposal. There could be adjustments to the current Dublin rules (so that responsibility would no longer cease due to lapse of time), and the relocation rules (so that more categories of asylum-seekers were covered, not just those with a 75%+ acceptance rate).

The second option would allocate all asylum-seekers in principle between Member States based on standard rules, with exceptions where there are family links for instance. Where the EU has designated a ‘safe’ country, though, the first Member State of entry would remain responsible, for the sake of efficiency. Obviously the intention here is to keep in place the new rules which aim to return people from Greece to Turkey quickly.

Either way, the Commission suggests possibly repealing the EU’s temporary protection Directive, a law designed to deal with mass influxes that has never actually been invoked to deal with any of them. (On its possible use to deal with the current crisis, see discussion here).

Eurodac

The Commission plans changes to the Eurodac Regulation, which currently requires taking and storing fingerprints of all asylum-seekers and irregular border crossers, mainly for the purpose of checking at a later stage if they have already applied for asylum or where they originally entered (for the purpose of applying the Dublin rules). Currently the database allows police access as well as checking of irregular migrants (separately from the asylum procedure). The Commission plans to make proposals for changes to match the changes to the Dublin rules as well as to make much more use of the system for migration control. This will parallel the smart borders proposals for an entry-exit system (also made today).

Procedures Directive

The intention is to replace the current Directive with a Regulation, setting out ‘comprehensive harmonisation’ and a genuinely ‘common procedure’, which would ‘reduce incentives to move to and within the EU’. There would be new rules on ‘key aspects of the asylum procedure’ which are currently optional, as regards admissibility (ie whether the asylum-seeker had, or should have sought, protection in a non-EU country), ‘the use of border and accelerated procedures’, the treatment of repeat applications, ‘and the right to remain in the territory’ during applications and appeals. This would harmonise the length of the initial application process and the appeals (the second-phase Directive already has common rules on the former issue, although not for the fast-track version of it).

On this point the Commission is particularly keen to harmonise ‘safe country’ rules, both as regards ‘safe country of origin’ (ie is the asylum-seeker safe in her own country?) and ‘safe third country’ rules (should he have applied for asylum elsewhere?). On the first aspect, the Commission wants the EP and Council to agree the proposal it made back in September 2015 for a partly common list (designating the Western Balkans and Turkey as ‘safe’: discussed here). But neither institution has rushed to adopt the Commission proposal. The intention is for more harmonisation relating to countries where many applicants come from. But as I pointed out in my previous analysis this proposal wrongly includes Turkey – despite its dubious human rights record – for cynical political reasons, and does not provide enough safeguards for those who claim may be genuine.

The Commission also wants to harmonise the use of the ‘safe third’ country concept, and set up a process of defining a common list in future. This would avoid awkward problems where differences between Member States divert flows of asylum-seekers or cause a ‘protection lottery’ with divergent decisions for similar cases. But it remains to be seen how these standards are applied. Given that (as discussed here) the Commission and Member States support the absurd designation of  Turkey as a ‘safe third country’ – despite its non-application of the Geneva Convention to most asylum-seekers and evidence of refoulement, unsafe treatment, and low standards – the prospect of further moves in this direction are unappealing.

Qualification Directive

The Commission has been carrying out an evaluation of the qualification Directive (which defines the concept of ‘refugee’ and ‘subsidiary protection’ status, and the rights which each group receive, but there is no mention of that here. The main concerns of the paper are twofold: further harmonisation of the rights received, including ‘differentiation’ of the two types of status, as subsidiary protection is ‘inherently more temporary’. This contradicts the second-phase Directive, which accepted that subsidiary protection was often not temporary and harmonised the two forms of status in most respects: see discussion of the first EU court judgment here. Secondly, protection will be granted ‘only for so long as they need it’.

This means that the Directive will be replaced by a Regulation, and the intention seems to be harmonisation downwards: ‘to reduce both undue pull factors and secondary movements’. There will be a ‘regular check’ to see if protection can justifiably be taken away, although this is consistent with the Geneva Convention, which refers to ‘cessation’ of refugee status when circumstances change in the country of origin. There will be standard rules on identity documents (although note that the Geneva Convention has already provided for a standard travel document for refugees). In the long term, there could be mutual recognition of decisions and a transfer of protection (on the latter issue, see my earlier paper). This reflects the Treaty obligation to create a status ‘valid through the Union’ – although the Commission cannot bring itself to refer to this concept.

Reception conditions

The Commission plans ‘targeted’ amendments to the reception conditions Directive, which governs the day-to-day life of asylum-seekers outside the procedural aspects of their asylum claim.  There’s no detail of these plans but the intention is to ‘reduce incentives to move to Europe’ and within the EU, while still ensuring ‘humane’ treatment.

Reducing ‘secondary movements’

As evident already, a main purpose of the paper is to stop asylum-seekers moving within the EU – a reversal of the usual logic of EU legislation. The paper elaborates further on this, referring to ‘proportionate sanctions’ for those who leave the responsible Member State. This will entail an obligation to send back the asylum-seeker to the responsible State (does that mean the options to consider the application in the Dublin Reg will be dropped?), a fast-track examination procedure without an automatic right to remain during the appeal, detention or restriction of movement, removal of benefits (overturning the judgment in CIMADE and GISTI on this point), and reduced credibility of the claim, on the basis of ‘existing provisions in the acquis’ dealing with last-minute applications. There will also be punishments for those who move without authorisation after obtaining refugee or subsidiary protection status, including a ‘status review’, and the five-year waiting period to obtain long-term residence status will be restarted every time they do so. There will be a common document issued to asylum-seekers, making clear that they cannot leave the responsible Member State except for ‘serious humanitarian reasons’.

The European Asylum Support Office

Currently this EU agency has a modest role supporting national asylum decision-makers. The Commission wants to enlarge its role, allowing it to evaluate Member States’ compliance with asylum standards, and suggesting changes they should make in national practice. If there were no compliance, the Agency could provide ‘enhanced support’, and there would be ‘measures’ to prevent ‘any incentive for Member States or asylum seekers not to respect the rules’. In particular, the Commission would have the power to decide on ‘operational measures’ to be taken by a Member State where the Agency found a breach of asylum standards, as regards case-handling and reception support, linked to the parallel actions by the EU Border Guard. (Obviously the drafters of the paper are thinking of Greece here).

The Agency would also have the power to offer detailed guidance (as it does occasionally already) on the substance of asylum law, with a reporting mechanism and case-auditing. The Agency would also have a key role assessing whether third countries are ‘safe’, giving its opinions to the Commission on this point.  It will also operate the revised Dublin system, on the basis of criteria not leaving it any discretion (it’s not possible to give EU agencies discretionary policy-making powers, according to the EU court).

Finally, the agency would have a reserve of national experts it could call on, and extra financial resources, linked to the new money for humanitarian assistance within the EU. In the longer term, the Agency could be given the role of making first-instance decisions in place of national authorities, although the Commission realistically acknowledges that this prospect is on the far horizon. Indeed, that horizon is darkened by flocks of low-flying pigs.

Safe routes for entry

While much of the paper is focussed on getting the Dublin system to work, this is balanced somewhat by discussion of safe routes for entry. First of all, this refers to existing ‘soft law’: a general recommendation on resettlement (which means the movement of people from non-EU countries to the EU), and the controversial 1:1 deal between Turkey and the EU, in effect ‘trading’ resettlement places for readmission of non-Turkish refugees from the EU (discussed here).

The Commission will build on this to propose (as promised before) EU legislation on resettlement, which will set out a ‘common approach to safe and legal arrival in the EU’ for people who need protection. There will be general rules, addressing admission and distribution, the status of resettled persons, financial support, and punishment for secondary movements between Member States.  These general rules will then be applied in individual cases as regards specific countries or groups of people. For specific countries, resettlement might only be offered on a quid pro quo basis, related to readmission: this echoes the controversial 1:1 deal with Turkey. It should be noted that readmission treaty negotiations are about to start between the EU and Jordan, which is another major host country for Syrian refugees.

The paper also talks about other safe legal routes for entry. Existing laws on admission of workers, students and researchers should be made accessible to refugees, although the Commission makes no commitment as regards EU legislation dealing with that issue. Private sponsorship should be encouraged by developing EU ‘best practice’. The Commission also promises to look at the issue of humanitarian permits. The most obvious way to do this in the near future is by including provisions in the EU visa code, which is currently being amended – as I have previously advocated and as supported by the European Parliament.

Legal migration

The Commission argues in general that the EU needs more legal migration for economic and demographic reasons. It suggests several means to this end. First of all, it plans to amend the EU’s Blue Card Directive on highly skilled workers, to encourage admission and make this law (which has had limited success) more attractive. (On the Directive in practice, and possible reforms, see my discussion here).

Secondly, the Commission might make a proposal for an EU law on admission of entrepreneurs. Next, it will consider a proposal on admission of service providers from non-EU countries. It will also review the effectiveness of other existing EU legislation on labour migration, in particular in order to prevent exploitation of workers. Finally, the paper includes some general words about cooperation with third countries.

Comments

Today’s paper seems entirely focussed on the feasibility of the Dublin system, with all other aspects of asylum law subsumed to supporting that objective. Never in the course of human history has such a small tail wagged such a big dog. The implication (only hinted at once) is that Dublin must be saved so that Schengen can be saved. At no point does the Commission ask itself whether Dublin can be saved – or whether Schengen should be.

The problem is that it is hard to see how Dublin could be made to work, especially now that large increases in migration flows have made its malfunctioning a huge political issue. Allowing asylum-seekers to leave Greece and Italy in large numbers for other Member States is politically unacceptable for those other Member States, and has led to internal border checks being reimposed and the construction of new walls across the continent. Insisting that Greece – its economy impoverished by a combination of poor domestic and Eurozone governance – should bear the burden alone is untenable, and both the EU court and European Human Rights court ruled that Greek asylum standards were insufficient even before the twin economic and migration crises took full effect. The reasonable attempt to reduce the Greek burden a little by means of the relocation Decisions has been ineffective.

It’s hard to see how a slightly different version of the relocation system can be made to work either. And why would the Member States collaborate in a fully-fledged quota system, which they are likely to find even less attractive than the relocation rules?

All this explains the recent EU turn towards a ‘Plan B’: simply returning most or all those who reach Greece straight back to Turkey. Time will tell soon enough how workable this alternative is: it may also prove unfeasible if people switch to different routes, are not deterred from arriving, or successfully challenge the legality of the deal. Certainly, the Commission’s assumption is that enough people will still arrive to cause a political problem. So the most important elements of today’s paper are the twofold intention to punish secondary movements and to deter people from coming at all. (I won’t comment on the legal migration part, which simply reiterates existing plans).

It’s clearer how the Commission would like to punish secondary movements. The plans here resemble nothing more closely than a liberal parent who has finally lost his patience with his misbehaving children, resulting in a disproportionate authoritarian overreaction. Some of the plans are legally questionable: for instance, the CIMADE and GISTI judgment (ruling that asylum-seekers should retain benefits even if they are the responsibility of another Member State under the Dublin system) was based partly on the EU Charter. A legislative amendment overturning it might therefore be challenged as a breach of the Charter. So might new rules on detention (cf the recent CJEU judgment on challenges to existing detention rules).

Sensible parents use carrots as well as sticks. Why not offer asylum-seekers a modest cash bonus in kind if they accept allocation to a Member State under the relocation rules? Or let them have earlier access to work if they stick to the rules? Or simplified and quicker long-term residence status? 

Returning to the analogy of the angry parent, the Commission has clearly found, like King Lear: 

How sharper than a serpent’s tooth it is

To have a thankless child

Yet its response is, in its own way, as irrational as his.

As for new rules to deter people from coming to the EU in the first place, the Commission threatens much, but is silent on most of the details. One is reminded of Lear again:

I will do such things,—
What they are, yet I know not: but they shall be
The terrors of the earth

But Lear did not have to contemplate convincing the European Parliament, EU Member States or the courts of his unformed plans. So there are political, legal and practical limits to what the Commission can successfully propose. Member States will be reluctant, as ever, to curtail much of their significant remaining discretion over asylum procedures. The European Parliament will probably not rush to roll back the improved standards which it spent five years fighting for. Anyway, the underlying logic of the Commission’s argument is doubtful. If high asylum standards in the EU are such a pull factor, why are there so many more refugees in Turkey, Jordan, Lebanon, and East Africa? Won’t a sharper difference between refugee and subsidiary protection status encourage more appeals and secondary movements too?

The only semblance of balance in the Commission’s paper is its focus on safe passage. But it’s spent two years resisting safe passage in the context of the reform of the EU visa code, using the weak argument that humanitarian visas are not meant for short-term entry. But they fall within the scope of the rules on visas with ‘limited territorial validity’, where the normal rules on visas (such as the time limit) are expressly disapplied. The mention of humanitarian permits in this paper now looks like an excuse to defer dealing with the issue. Similarly, the EU could and should have developed a proper resettlement policy years ago. There’s still no mention of any numbers in this context: compare to the recent suggestions from the UNHCR. And expecting a quid pro quo for the humanitarian gesture of resettlement doesn’t get any less cynical with repetition.

Overall, this is a very disappointing paper from the Commission. There are certainly abuses of the asylum system, but EU legislation already has many possibilities to address them, as regards fast-tracking decisions and appeals, reduced benefits and detention. There’s little evidence here of a balanced, rational and coherent response to the crisis. In fact, this looks rather more like panic.

Of course EU asylum law does not develop in a political vacuum. Member States had a key role agreeing these laws, and the main role implementing them and driving the reaction to the crisis. No criticism of the ‘EU response to the crisis’ should ignore what is ultimately driving that response: the neo-nationalist political parties which are in government in several Member States and form the main opposition in several more. But is endless concessions to these parties really the right strategy? They will always be able to outflank the political mainstream when it comes to anger, fear and ignorance. It’s always better to stand and fight for what you really believe in than to pretend to agree with your opponents’ fundamentally different views.

*Disclaimer: I have been an independent consultant on the impact assessment relating to the reform of the Dublin system and the Blue Card Directive, and the evaluation of the qualification Directive. This does not restrict me from giving my own views on the Commission’s plans. 

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: www.ekathimerini.com