Bringing the Panopticon Home: the UK joins the Schengen Information System

 

Steve Peers

Over two hundred years ago, British philosopher Jeremy Bentham devised the concept of the ‘Panopticon’: a prison designed so that a jailer could in principle watch any prisoner at any time. His theory was that the mere possibility of constant surveillance would induce good behaviour in prison inmates. In recent years, his idea for a panopticon has become a form of shorthand for describing developments of mass surveillance and social control.

The EU’s forays in this area began with the creation of the Schengen Information System (SIS) in the 1990s. The SIS is a well-known EU-wide database containing enormous amounts of information used by policing, immigration and criminal law authorities.  

Until now, the UK has not had any access to the SIS. But this week, the EU Council finally approved the UK’s participation in the System, thereby linking the EU’s most iconic database with the intellectual home of the panopticon theory. What are the specific consequences and broader context of this decision?

Background

The main purpose of the Schengen system is to abolish internal border checks between EU Member States, as well as some associated non-EU States.  At the moment, the full Schengen rules apply to all EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia. Those rules also apply to four associates: Norway, Iceland, Switzerland and Liechtenstein.

All of the Member States are obliged ultimately to become part of the Schengen system, except for the UK and Ireland. Those two Member States negotiated an exemption in the form of a special Protocol at the time when the Schengen rules (which originated in the Schengen Convention, ie a treaty drawn up outside the EU legal order) were integrated into the EU legal system, as part of the Treaty of Amsterdam (in force 1999).

The UK and Ireland are not entirely excluded from the Schengen system. In fact, they negotiated the option to apply to join only some of the Schengen rules if they wished. Their application has to be approved by the Council, acting unanimously. The UK and Ireland essentially chose to opt in to the Schengen rules concerning policing and criminal law, including the SIS, but not the rules concerning the abolition of internal border controls and the harmonisation of rules on external borders and short-term visas.

The UK’s application to this end was approved in 2000 (see Decision here), and Ireland’s was approved in 2002 (see Decision here). But in order to apply each Decision in practice, a separate subsequent Council decision was necessary, because the Schengen system cannot be extended before extensive checks to see whether the new participant is capable of applying the rules in practice.  On that basis, most of the Schengen rules which apply to the UK have applied from the start of 2005 (see Decision, after later amendments, here). The exception is the rules on the SIS, which the UK was not then ready to apply. After spending considerable sums trying to link to the SIS, the UK gave up trying to do so, on the basis that the EU was anyway planning to replace the SIS with a second-generation system (SIS II). There’s a lot of further background detail in the House of Lords report on the UK’s intention to join the SIS (see here), on which I was a special advisor. (Note that Ireland does not apply any of the Schengen rules in practice yet).

It took ages for the EU to get SIS II up and running, and it finally accomplished this task by April 2013 (see Decision here). The UK had planned to join SIS II shortly after it became operational, but this was complicated by the process of opting out of EU criminal law and policing measures adopted before the entry into force of the Treaty of Lisbon, and simultaneously opting back in to some of them again, on December 1^st 2014 (see discussion of that process here). This included an opt back in to the SIS rules.

Once that particular piece of political theatre concluded its final act, the EU and the UK returned to the business of sorting out the UK’s opt in to SIS II in practice. This week’s decisioncompleted that process, giving the UK access to SIS II data starting from March 1^st. The UK can actually use that data, and enter its own data into the SIS, from April 13^th.

Consequences

What exactly does participation in the SIS entail? The details of the system are set out in the 2007 Decisionwhich regulates the use of SIS II for policing and criminal law purposes. There are also separate Regulations governing the use of SIS II for immigration purposes and giving access to SIS II data for authorities which register vehicles. The former Regulation provides for the storage of ‘alerts’ on non-EU citizens who should in principle be denied a visa or banned from entry into the EU, while the latter Regulation aims to ensure that vehicles stolen from one Member State are not registered in another one. The UK participates in the latter Regulation, but not the former, since it could only have access to Schengen immigration alerts if it fully participated in the Schengen rules on the abolition of internal border controls. On current plans, this will happen when hell freezes over.

The SIS II Decision provides for sharing ‘alerts’ on five main categories of persons or things: persons wanted for arrest for surrender or extradition purposes (mainly linked to the European Arrest Warrant); missing persons; persons sought to assist with a judicial procedure; persons and objects who should be subject to discreet checks or specific checks (ie police surveillance); and objects for seizure or use as evidence in criminal proceedings. There are also rules on the exchange of supplementary information between law enforcement authorities after a ‘hit’. For instance, if the UK authorities find that a European Arrest Warrant has been issued for a specific person, they could ask for further details from the authority which issued it.

On the other hand, the SIS does not, as is sometimes thought, provide for a basis for sharing criminal records or various other categories of criminal law data, although the EU has set up some other databases or information exchange systems dealing with such other types of data. (On criminal records in particular, see my earlier blog post here). The main point of setting up the second-generation system was to extend the SIS to new Member States (although in the end a new system wasn’t actually necessary for that purpose), and to provide for new functionalities such as storing fingerprints, which will likely be put into effect in the near future.

In practice, the UK’s participation in SIS II is likely to result in the Crown Prosecution Service receiving more European Arrest Warrants (EAWs) to process, and in more efficient processing of EAWs which the UK has issued to other Member States. It will also be easier, for instance, to check on whether a car or passport stolen in the UK has ended up on the continent, or vice versa.

Broader context

As noted already, while the UK is only now joining the SIS, the System has been around for many years, and has proved to be the precursor of many EU measures in this field. Indeed, as EU surveillance measures go, the SIS turned out to be a ‘gateway drug’: the friendly puff that led inexorably to the crack den of the data retention Directive.

Of course, interferences with the right to privacy can be justified on the basis of the public interest in enforcement of criminal law and ensuring public safety – if the interference is proportionate and in accordance with the law. Compared to (for instance) the data retention Directive and the planned passenger name records system, the SIS is highly targeted, focussing only on those individuals involved in the criminal law process, or police surveillance, or banned from entry from the EU’s territory. The legitimacy of the system therefore depends upon the accuracy and legality of the personal data placed in to it, and the connected data protection rules. On this point, the EU and national data protection supervisors have reported that many data subjects do not even know about the data held on them in SIS II, and they have produced a guide to help them with accessing their data in the system.

There’s an inevitable tension between the EU’s goal to set the world’s highest data protection standards, on the one hand, while also developing multiple huge databases, information exchange systems and surveillance laws, on the other.  It’s as if the brains of the utilitarian Jeremy Bentham and the libertarian John Stuart Mill were both battling for control of the same body – forcing it to draw up plans for the Panopticon at the same time as it was storming the Bastille. If this tension manifested itself in fiction, it would probably take the form of a comedy about a vegetarian butcher, or a virgin porn star. But the need to ensure that measures to protect our security do not remove all our liberty is not a laughing matter.

 

*This blog post is linked to ongoing research on the upcoming 4^th edition of EU Justice and Home Affairs Law (forthcoming, OUP).

 

Image credit: nytimes.com

Barnard & Peers: chapter 25

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Would the UK’s withdrawal from the ECHR lead to withdrawal from the EU?

Steve Peers

Having long pledged to repeal the Human Rights Act altogether should they obtain a majority of seats in the House of Commons, some Conservative Party figures have recently suggested that they support the UK’s possible withdrawal from the European Convention on Human Rights (ECHR), or at least some sort of national parliamentary override of the European Court of Human Rights (ECtHR) in domestic law (on the details of these plans, see the discussion by Mark Elliott). Indeed, there is a widespread view that one purpose of the recent cabinet reshuffle was to pave the way to this end, in particular by removing the former Attorney-General, Dominic Grieve, who apparently described the plans as a  ‘car crash’ (see further this analysis by Adam Wagner). 

It is sometimes suggested that some or all such changes would necessarily result in the UK having to withdraw from the European Union. Is this the case?

Withdrawal from the ECHR

Of course, it is entirely possible to sign up to the ECHR without being a Member State of the EU: some 19 countries are in this position. But there is no express rule the other way around (see further the analysis in this House of Commons briefing paper). Certainly when the Communities (as they initially were) were initially founded, there was no such expectation. Indeed, France was not a party to the ECHR until the 1970s. 

However, the role of human rights in EU law has evolved considerably since then, first of all with the fleshing out of the role of human rights as part of the ‘general principles of EU law’, then with the adoption of the EU’s Charter of Fundamental Rights (binding since 2009) and most recently with the development of plans for the EU itself to become a party to the ECHR. Furthermore, in all the most recent enlargements of the EU, the existing Member States expected the future Member States to sign up not only to the ECHR, but all of its Protocols, and many other human rights treaties besides. The EU is also a strong advocate of human rights treaties worldwide.

The practice relating to new Member States is underpinned by Article 49 TEU, which states that EU membership is open only to States which respect the EU’s ‘values’. Those values are defined in Article 2 TEU as including ‘respect for human rights’, but there is no express mention of ECHR ratification. In light of the recent practice as regards EU accession, there is undoubtedly an established political principle that EU Member States have to be parties to the ECHR when they join the EU. Logically there must be a corollary principle that they remain ECHR parties after they become EU Member States, no matter when they join the EU. But is this a legal rule?

Article 7 TEU provides that Member States can be suspended from EU membership if there is a ‘serious and persistent breach’ of the values set out in Article 2. There is no power for the EU to fully expel a Member State, but perhaps a country whose EU membership was suspended would be (even) more willing to consider  the option of unilateral withdrawal from the EU, which is provided for in Article 50 TEU.

Short of the ‘red card’ of suspending EU membership, there is also a possible ‘yellow card’ in Article 7(1) TEU. A Member State can be warned by the EU that there is a ‘clear risk of a serious breach’ of the values set out in Article 2 TEU. Neither the red card nor the yellow card provided for in Article 7 has ever been handed to a Member State, and the general assumption is that they would only be used in extreme situations like a military coup. The ‘red card’ would only be issued if all other Member States voted for this, and it could always be argued that the common law and/or a British Bill of Rights (if there were one, following ECHR withdrawal) would prevent egregious human rights breaches from happening in the UK.

There is no express mention of the ECHR in Articles 2, 7 or 49 TEU. However, there are several express mentions in Article 6 TEU, which sets out the basic framework for internal human rights protection within the EU legal order.  First of all, Article 6(3) states that human rights ‘as guaranteed by’ the ECHR are general principles of EU law, although the Court of Justice of the European Union (CJEU) has made clear recently (see the Fransson judgment, for instance), that this does not mean that the ECHR binds the EU as such, at least until the EU actually signs up to that Convention. However, the case law on the general principles frequently refers to the ECHR, and the CJEU has stated for years that it must ‘take account’ of the ECtHR’s judgments in that context.

Secondly, according to Article 6(2), the EU ‘shall’ accede to the ECHR. A draft treaty to that end has been drawn up, and is being reviewed by the CJEU; its judgment is expected later this year. If that ruling is positive, then the treaty would be opened for signature soon thereafter. It will need the unanimous support of all Member States (thus including the UK) to be approved, as well as approval at the national level. It could be argued that Member States are under a legal obligation to approve this accession treaty, in order to facilitate the obligation of the EU to accede to the ECHR. At the very least, it would be awkward if the UK ceased to be a party to the ECHR as a party but had to approve the EU becoming one.

Thirdly, Article 6(1) provides that the EU Charter has the same legal effect as the Treaties. While it is sometimes asserted that the UK has an opt-out from the Charter, due to an ambiguous Protocol on this issue (which also applies to Poland), this is simply not correct. In the NS judgment, the CJEU made clear that the UK was still subject to the Charter in the same way as other Member States. (It is arguably still possible that, due to the Protocol, the UK might not be fully bound by the Charter rules on social rights, but those rights do not generally appear in the ECHR).

The Charter contains many of the same rights as the ECHR, and refers to it several times. In particular, Article 52(3) of the Charter states that the Charter rights which ‘correspond’ to ECHR rights have the ‘same meaning and scope’, and this has been referred to several times by the CJEU. While a House of Commons committee recently suggested that UK legislation should attempt to override the Charter (see my criticism of this bad idea here), the government recently replied that it has a ‘duty to implement all EU law that applies to it’, apparently implicitly ruling out the idea of a change to national law in this respect. 

Taken as a whole, it is therefore right to keep in mind – as Joshua Rozenberg has pointed out – that in many respects EU law offers a stronger degree of legal protection for human rights than the ECHR. However, this is only relevant to the extent that the two areas of law cross over, ie a dispute falls within the scope of both EU law (otherwise the Charter doesn’t apply at all) and the rights set out in the ECHR.

So, while there is no formal requirement that a current EU Member State remain a party to the ECHR, and it would not be easy to enforce such a requirement if it existed, there is a very close relationship between the ECHR and EU law. The UK’s attempts to rid itself of the ECHR would be frustrated by the continued partial application of that Convention within the UK, wherever a dispute touched upon both EU law and ECHR rights. This would be exacerbated if the EU signs up to the Convention in the near future, but the EU’s attempts to this end will in turn be frustrated if the UK government or parliament refuses to approve the relevant treaty. Indeed, that treaty is drafted on the assumption that all of the Member States remain ECHR parties alongside the EU itself, and there would be complex questions to answer in the event that any cases arose concerning the UK, the ECHR and EU law once it were in force.

Taking all of these factors together, it is arguable that there is an implicit de jure legal requirement for all EU Member States to be party to the ECHR, otherwise the EU could not carry out its tasks effectively. Possibly the CJEU will clarify this issue in passing, in its upcoming judgment on the EU’s accession treaty to the ECHR. At the very least, there would de facto be enormous complications resulting from this scenario.

Amendment of domestic law

It is much harder to argue that merely reducing the impact of the ECtHR in UK domestic law is incompatible with EU membership. After all, the UK and Ireland did not give domestic legal effect to the ECHR until the last decade or so. (For an interesting discussion of the issues around parliamentary supremacy and human rights protection, see Gavin Phillipson and Mark Elliott).

There will, of course, still be complications if this route is taken. Every time that there is a link between EU law and the ECHR rights in the UK, it would be possible to enforce the ECHR rules by the EU law route, even if the UK parliament had legislated to ignore the ECtHR’s rulings. If the UK parliament then tried to legislate contrary to EU law to avoid this, there would be a direct conflict between the UK’s constitutional foundations and its obligations as a Member State of the EU.

Conclusions

It would of course be legally consistent for the UK to withdraw from both the EU and the ECHR, if that is what is intended. Some (like Eurosceptic MEP Dan Hannan) are open about their intentions in this respect. But there may be some who advocate withdrawing from the ECHR but not the EU as such. Frankly, that position constitutes either a cynical attempt to trigger an EU withdrawal by the back door (a sort of reverse Trojan Horse), or a negligent approach to this issue.  

Finally, one view is that the protection of human rights is undesirable, at least for the United Kingdom. For example, this argument is put by Dan Hannan, who asks the question “What have human rights ever done for the UK?” Indeed, he asks that question three times, so he obviously thinks it is a good one. But in fact, it is one of the stupidest questions in human history.

The purpose of human rights protection is clearly not to advance the interests of states, but rather to constrainthose states from mistreating individuals.  In particular, the ECHR (among many other things) guarantees a fair trial, protects against torture or other inhuman or degrading treatment, prevents arbitrary detention and ensures freedom of speech and privacy. While Hannan suggests that the UK could solve all those problems by itself, the fact is that it didn’t. Every individual who has won a case against the UK in the ECtHR had to try first (under the ECHR’s ‘exhaustion of domestic remedies’ rule) to obtain a remedy in the UK courts, but failed.

And although it is true that the UK (and some other ECHR signatories) does not breach the Convention as often as some other States, its continued participation in the system is valuable not only as regards protection of British citizens and residents, but as a contribution to supporting human rights protection across the rest of Europe, and indeed worldwide. The withdrawal of a large EU Member State from the world’s most sophisticated system for the protection of human rights would be bound to deal a significant blow to that system.

Barnard & Peers: chapter 2, chapter 9

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Metamorphosis of the third pillar: The end of the transition period for EU criminal and policing law

by Emilio De Capitani

On 1st December 2014, after five years of “legal gestation”, the previous “third pillar” of EU law will finally transform itself from an intergovernmental larva into a supranational butterfly. But will this really ensure a coherent policy, correctly applied by Member States and in full compliance with human rights?

More precisely, in compliance with Article 10 of Protocol 36 to the Treaties, added by the Lisbon Treaty, all the EU measures dealing with police and judicial cooperation in criminal matters adopted before the entry into force of the Lisbon Treaty will be treated like all the other EU legislative measures as far as the jurisdiction of the CJEU is concerned. Their transposition should be verified on the ground and, in case of problems, the Commission will be entitled to bring the Member States to the CJEU, which will also have the power to interpret these measures following references for a preliminary ruling from all national courts (only some national courts can send questions at present).

Moreover, with the end of the last transitional period for the Area of Freedom Security and Justice (AFSJ) it will be possible on the basis of real and transparent data to decide if dozens of measures (such as the European arrest warrant or the PRUM decision) which have been negotiated in a different political and legal context should be revised to comply with the new EU constitutional framework.

Quite surprisingly the aforementioned deadline – which will inevitably have a profound impact on the Member States’ policies and on the rights of the EU citizens – is approaching without any sort of public debate by the civil society, the national parliaments or the academia.

Even at EU level during the last Justice and Home affairs Council where the point was on the agenda no delegations took the floor nor the recent European Council referred to it in the Guidelines framing the future of the freedom security and justice area.

UK opt-in, opt-out and re-opt-in…

Why this silence? It is more than likely that such a “diplomatic” reserve and understatement are due to the fact that the UK is currently negotiating with the Council and the Commission which will be its final position on the former EU third pillar measures. (see here) It is was indeed to comply with the UK’s “red lines” that in October 2007 in the final phase of the Lisbon Treaty negotiations, a five year period freezing the Commission and CJEU enforcement powers was inserted in Protocol 36 (transitional measures).

At that time the UK government’s aim was (and probably still is) to protect its common law systems, and its police and judicial processes from the risk of the CJEU’s “judicial activism”. According to a House of Lords report, the UK Government asked it because the “vast majority” of pre-Lisbon police and judicial cooperation (PCJ) measures were not drafted with CJEU jurisdiction in mind and had often been agreed at the “lowest common denominator” in order to secure unanimity. As a result, much of the drafting was “not of a high standard and may be open to expansive interpretation by the ECJ” (see point 91 of House Of Lords Report “EU police and criminal justice measures: The UK’s 2014 opt-out decision” HL Paper 159).

Very skilfully the UK also obtained in the same Protocol the right to opt out from all the former third pillar measures before May 2014 as well as the possibility of a second thought, after December 1st 2014 of agreeing with the Council (for Schengen related measures) and with the Commission a new opt-in on some (or all) the former third pillar measures. However, according to Protocol 26 the UK re-opt-in could be granted only “without seriously affecting the practical operability” of the third pillar measures and by “respecting their coherence”.

Last year the UK Government submitted to the Council its Opt-Out decision and is now informally negotiating the possible re-opt-in for around 35/37 third pillar measures (see here)

It is too early to know which will be the result of the EU-UK negotiations. However if the Council and the Commission will accept the UK re-opt-in request (which for some measures can be delayed after the end of 2015) the situation will not be extremely different from the one existing before the block opt-out – except that the UK will now be subject to the Commission and CJEU enforcement powers.

The difficult quest of the former third pillar acquis ….

The UK’s (and Denmark’s) peculiar situation aside, the definition of the pre-Lisbon acquis for police and judicial cooperation in criminal matters will be extremely important also for the other EU member States and, quite probably for the European Parliament (EP) and for the national parliaments. The EP is, since the end of 2009, a co-legislator also for police and judicial cooperation in criminal matters but will not be associated with the implementation of Protocol 36. As for national parliaments, they will now share with the EP wide scrutiny powers (Articles 70, 71 85 and 88 TFEU) on these policies, and will at last have the opportunity to check what happened in the EU outside their national borders and even more inside their national territory. Maybe the December 1st deadline could then be an occasion at least for some of them to verify if these EU measures have been correctly transposed and, if they have to be amended (as it still possible for measures such as Europol and Eurojust which are currently renegotiated at EU level).

A revised list of the former third pillar measures has been recently established by the Commission in cooperation of MS representatives. The 123 measures currently covered by Protocol 36 are very diverse: some of them are of quasi legislative nature (such as the Framework Decisions) some others (such as the international agreements or Conventions, and the Council Decision) even if not legislative, are binding, and some others are of uncertain nature as it is the case for the “Joint Actions” adopted under the Maastricht Treaty regime.

As far as the content is concerned these measures deal with:

- mutual recognition of national decisions (such as the European Arrest Warrant (EAW) the European Supervision Order, the mutual recognition of freezing orders; fines; confiscation orders, probation orders; and of prison sentences…);
- harmonization of the definitions of certain criminal offenses and minimum penalties;
- criminal procedures;
- cross-border cooperation, in particular between police and law enforcement agencies, including the exchange of information and the investigation of crime;
- EU agencies (Europol, Eurojust and the European Police College (CEPOL));
- agreements with third countries on information sharing, mutual legal assistance and extradition

The Commission’s list is not final because between now and December 1st some of the measures could still be replaced by texts currently under negotiation. Moreover the Commission has also announced that some of them – which can be considered obsolete – will be repealed.

…the problem of their transposition and operability …

To assess the “operability” of these measures the European Commission has to verify if they have been correctly transposed by the Member States. The Commission is already collecting the relevant information even if it is not yet entitled to open infringement procedures in case of non compliance by the Member States.

It is worth recalling that in some cases (such as for the European Arrest Warrant) the Commission has already submitted several implementing reports. For other cases, the Commission has only recently adressed to the Member States some pre-alert communications which should be taken in account to avoid judicial proceedings after December 1st 2014.

The first pre-alert Commission report deals with the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention. These Framework Decisions (FD) have to be seen as a package of coherent and complementary legislation that addresses the issue of detention of EU citizens in other Member States and has the potential to lead to a reduction in pre-trial detention or to facilitate social rehabilitation of prisoners in a cross border context. 

The first FD (transfer of Prisoners) allows a Member State to execute a prison sentence issued by another Member State against a person who remains in the first Member State. On the other hand, it establishes a system for transferring convicted prisoners back to their Member State of nationality or habitual residence (or to another Member State with which they have close ties) to serve their prison sentence. Article 25 of the Transfer of Prisoners FD in conjunction with Article 4(6) and 5(3) of the European arrest warrant, allows a Member State to refuse to surrender its nationals or residents or persons staying in the latter if the other Member State undertakes to enforce the prison sentence in accordance with the same FD.

The second FD (Probation and Alternative Sanctions) applies to many alternatives to custody and to measures facilitating early release (e.g. an obligation not to enter certain localities, to carry out community service or instructions relating to residence or training or professional activities). The probation decision or other alternative sanction can be executed in another Member State, as long as the person concerned consents.

The third FD (European Supervision ) concerns provisional release in the pretrial stage. It will enable a non-custodial supervision (e.g. an obligation to remain at a specified place or an obligation to report at specified times to a specific authority) to be transferred from the Member State where the non resident is suspected of having committed an offense to the Member State where he normally resides. This will allow a suspected person to be subjected to a supervision measure in his home Member State until the trial takes place in another Member State, instead of being placed into pre-trial detention.

It is worth recalling that at the time of the Commission Communication, well after the relevant deadlines, respectively 10, 14 and 16 Member States have not yet transposed the Framework Decisions.

Another pre-alert Commission report deals with the implementation of the Framework Decision 2008/675/JHA of 24 July 2008 on taking into account of convictions in the Member States of the European Union in the course of new criminal proceedings. This Framework Decision aims to ensure that similar legal effects are given to domestic convictions and convictions from other Member States. Its article 3 is based on the principle of simple assimilation of convictions and imposes as a matter of principle that the legal effects of foreign convictions must be equivalent to the legal effect of domestic convictions. More than 3 years after the implementation date, 6 Member States have yet to notify the measures transposing the obligations of this Framework Decision: BE, ES, IT, LT, MT and PT.

A third pre-alert Commission report deals with the Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of jurisdiction in criminal proceedings. This FD addresses the situations where potentially several Member States are competent to conduct criminal investigations in respect of the crime and proceedings against the alleged perpetrators. This poses challenges not only in terms of coordination and effectiveness of criminal prosecutions, but also with regard to respect for the fundamental principle of criminal law, also enshrined in the Charter of Fundamental Rights of the European Union (“the Charter”), that a person may not be prosecuted and convicted twice for the same offense (Ne bis in idem). More than 1 year after the implementation date, 13 Member States yet to notify the measures transposing the obligations of this Framework Decision: BG, DK, EE, EL, ES, FR, IE, IT, LT, LU, MT, SE and the UK. Seven Member States informed the Commission of the process of preparing relevant transposition measures at national level (BG, EL, ES, FR, LT, MT and SE). However, none of these Member States adopted the measures or notified the Commission at least before April 2014.

In all these pre-alert Communications the Commission has abundantly made clear that the non-implementation of the Framework Decisions by some Member States is problematic since those Member States who have properly implemented the Framework Decisions cannot benefit from their co-operation provisions in their relations with those Member States who did not implement them in time. As a consequence, when cooperating with a Member State who did not implement in time, even those Member States who did so will have to rely on the random and often lengthy practice of traditional mutual legal assistance in criminal matters without a reliable guarantee of a timely detection of bis in idem cases, which should already take place at early stages of criminal proceedings. Such a practice increases significantly a risk of double jeopardy.

…and the problem of their “coherence” and compliance with the EU Charter.

But the priority for the EU legislator in the coming months should be to verify if the former third pillar measures which were negotiated without taking in account the now binding Fundamental rights Charter are consistent with the new EU institutional and legal framework.

Even if some scholars and politicians try to sell the idea that there is a substantial continuity between the pre Lisbon and Post Lisbon era this is certainly not the case for the AFSJ, where the entry into force of the Charter has marked a clear change of perspective. A proof of this has been recently offered by the recent CJEU jurisprudence in the asylum domain where the presumption of compliance with fundamental rights by another Member State has been considered rebuttable in circumstances where fundamental rights are under threat (CJEU Judgment in NS) or to recall the data retention judgment, where the EU data retention  Directive was annulled for violation of the principle of proportionality and of the Charter. If this is the position of the CJEU how many of the 123 measures in the Commission list will require a substantial revision to be considered “coherent” with the new post – Lisbon legal and constitutional framework?

Please don’t throw out real rights for fake security…

Pre-Lisbon measures should also be subject to the parliamentary scrutiny at European and national level as it is required since five years by Article 70 of the TFEU. They should also be effective as they can affect EU citizens’ security and fundamental rights. However it is difficult to ascertain if the interference with EU citizens’ rights has been proportionnate and effective. As the post-Snowden saga has now abundantly showed, “intelligence led policing” and “operational cooperation” cover practices which can be extremely intrusive without offering clear results to the European and/or to the national parliaments. Moreover what is even more worrying is that parliamentarians do not examine whether their country is playing any role in the so called EU “Internal security strategy” or in the “policy cycle” which are less transparent than the “joint actions” negotiated under the Maastricht regime… Are these “soft law” initiatives still justified forty years after the first TREVI cooperation was launched in these domains?  Or, after Lisbon, can the EU citizens expect from the EU and its Member States a legislative framework which can at the same time deliver effective security and protect fundamental rights?

This was announced by the new treaties and by the Charter five years ago and what EU citizens are deemed to obtain; it is then the duty of the incoming Commission and of the newly elected European Parliament to do what the European Council didn’t dare to propose.

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What happens to British expatriates if the UK leaves the EU?

By Steve Peers

While much of the debate about the UK’s membership focusses upon the 2.3 million citizens of other EU countries living in the UK, a nearly identical number of UK citizens live in other Member States. There has been surprisingly little discussion about what would happen to them if the UK left the EU. ‘Europe Day’ is a suitable occasion to look at this issue in more detail.

Essentially, there are three different scenarios following withdrawal, as far as the movement of people between the UK and the remaining EU is concerned.

In the first scenario, the UK retains its membership in the European Economic Area (EEA), an existing treaty which extends much of the EU’s single market, and some related policies, to Norway, Iceland and Liechtenstein. This would mean that all the existing rules on the free movement of people continue to apply.

But is this politically realistic? The opponents of UK membership of the EU traditionally based their arguments on issues of cost and sovereignty. These arguments have not disappeared, but they have been joined by a third main argument: immigration control. The EEA does allow its members to adopt safeguard measures if there are ‘serious economic, societal or environmental difficulties of a sectorial or regional nature’ which are ‘liable to persist’, but these measures must be ‘restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation’. It is questionable whether these limited possibilities would be sufficient to satisfy those who are concerned about the numbers of people in the UK from the rest of (or rather, the remaining) European Union.

In the second scenario, the UK and the EU negotiate an ad hoc solution regulating the movement of persons, which falls short of the EEA rules but which contains some special rules which facilitate the movement of persons to some degree. But it’s impossible to know at this point whether such an agreement would be signed, and what its content would be. So it’s not possible to analyse this possibility in any detail.

The third scenario is that there’s no agreement between the UK and EU on this issue, and so only the national law of the UK on the one hand, and the EU and its Member States on the other hand, regulates the issue. It’s possible that the second and third scenarios could be combined in some way. For instance, there could be a treaty which focuses entirely, or mostly, upon protecting the rights of those persons who moved before the UK’s withdrawal, leaving the issue of migration after the withdrawal date to be governed by national law (and partly by EU law, for the remaining Member States).

We have a good idea what this third scenario would entail, for those UK citizens who live (or would like to live) in the remaining EU. That’s because there is already a significant body of EU immigration law. Since the UK has opted out of most of it, this law hasn’t attracted much attention in the UK, but it would be hugely relevant to UK citizens in the remaining EU in the event of the third scenario. There’s also a body of EU asylum law, and if UK citizens were non-EU citizens (third-country nationals), they could apply for asylum in the EU (and vice versa). But (for now at least) this prospect seems improbable.

This analysis will therefore look in turn at the impact of applying three other main areas of law to UK citizens: border and visa law; legal migration law; and the law on ‘illegal’ (ie, irregular) migration.

EU law on borders and visas

UK citizens already have to cross the ‘Schengen’ border when they visit other most other Member States (Ireland does not have to join the Schengen rules, and Romania, Bulgaria, Cyprus and Croatia have not done so yet). However, the checks on UK citizens currently co-exist with EU free movement law, meaning that the checks can only be cursory, in order to verify British citizens’ identity and nationality at Schengen borders.  

Following a UK withdrawal from the EU, the borders rules alone would apply, meaning that there will be more intrusive questions about the purpose of each British citizen’s visit, and checks on the intention to return and level of income.

As for visas, the EU would be free to impose visa requirements on UK citizens in the event of withdrawal. While the EU tends not to impose visa requirements on wealthy countries, it does expect such countries (such as the USA and Canada) in return to exempt all EU citizens from a visa. So if the UK wished to impose visas (for instance) on Romanians and Bulgarians, it would face pressure from the EU to waive such requirements – or face the imposition of a visa requirement for UK citizens. Even if there is no visa requirement for UK citizens visiting the EU, they would in future be subject to the EU’s planned entry-exit system, which will keep a record of all movements of third-country nationals into and out of EU territory.

Legal Migration  

Those UK citizens who were long-term residents in a Member State (legal residence for more than five years) could apply for long-term resident status under EU law. But as compared to obtaining permanent residence status as an EU citizen, there are more conditions attached to obtaining such status, and fewer benefits. For instance, according to EU immigration law, a long-term resident of a Member State can move to another Member State, but this is subject to much stricter rules than those applying to EU citizens. Also, British citizens would often be subject to ‘integration’ rules, such a requirement to speak the language of the host country, before getting such status. For British pensioners living in the EU, the EU rules which guarantee the receipt (and upgrading) of their British pensions would no longer apply.

Similarly, UK citizens in a Member State who wanted their family members to join them (if those family members were British, or nationals of another third country) would be subject to far stricter family reunion rules than they are now, including possible waiting periods and integration (language) requirements. Those UK citizens who were family members of an EU citizen living in his or her own Member State (ie, a German citizen living in Germany) would be subject to national law only, which is sometimes even stricter (in the Netherlands, for instance). Only those UK citizens who are family members of an EU citizen who has exercised free movement rights (a French citizen in Germany, for instance) would still be able to rely (only indirectly) on EU free movement law.

As for UK citizens who wished to move to, or remain in, an EU Member State, but who do not yet have long-term resident status, they would be subject to possible quotas and EU-preference rules on labour migration. Highly-skilled British professionals could not simply move to another Member State and take up work, but would have to apply for a Blue Card as provided for in EU law, or qualify as an intra-corporate transferee, both possibilities subject to more restrictive rules than for EU citizens. Less skilled workers and self-employed British citizens would be subject entirely to restrictive national laws on their admission (although they would have some limited equality rights under the single permit Directive), unless they were seasonal workers, in which case their residence would be subject to a strict time limit.

There are EU rules on admission of students and researchers, but there would be no requirement to award UK citizens who wanted to study in EU Member States equal treatment as regards tuition fees or admission quotas. British students would have more limited rights to work during their studies, and no right as such to stay on after their completion.

Irregular migration

In principle, according to the EU’s Returns Directive, British citizens who did not, or no longer, had a right to stay in the EU would have to be expelled from the territory, by force if they did not go voluntarily. To facilitate their departure, they could be detained for up to six months, or up to 18 months if there were complications with their removal.

Various other restrictive EU laws would also apply to UK citizens in the EU. So there would be sanctions against employers of irregular British migrants, as well as prosecution of those friends or family who assisted with their unauthorised stay. In accordance with the Returns Directive, most irregular British migrants to the EU would be subject to an entry ban, with their names listed on the Schengen Information System to ensure that no EU Member State lets them back in for up to five years.

Conclusions

Usually, patriots and nationalists are concerned about the plight of their fellow citizens living abroad. One might think this would be particularly the case in the UK, given the large number of British citizens living abroad due to the current forces of globalisation – never mind the country’s colonialist past. Yet it seems more likely that British expatriates in the EU will be, in effect, the eggs that have to be broken to make the omelettes of those British politicians who feel uncomfortable living next to Romanians.

The negative consequences of UK withdrawal from the EU for British expatriates could be avoided, if the UK government of the time were willing to treat EU citizens who were living in (or wanted to come to) the UK generously.

But as noted already, this prospect looks unlikely. It is undoubtedly possible in theory to make a rational and reasonable argument for the UK’s withdrawal from the European Union (although there are, of course, counter-arguments for staying in). But in recent years, the argument for withdrawal has become increasingly linked with a degree of distaste for, if not loathing of, the citizens of other Member States living in the UK (to say nothing of other expressions of racism, sexism and homophobia).

If it left the EU, the UK would be free to give expression to these views, but there would be consequences for British expatriates remaining in the EU.  The corollary of hearing fewer foreign languages spoken on British trains is that English would be spoken less often in European trains. Taking into account restrictive EU rules on family reunion, access to employment and benefits and detention of third-country nationals, the immigration status of a growing number of British citizens in the EU would be, in Hobbes’ words, solitary, poor, nasty, brutish and short.  

(See also the post on what would happen to EU citizens in the UK after 'Brexit').

Barnard & Peers: chapter 2, chapter 13, chapter 26

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The UK’s Failed Challenge to the Financial Transaction Tax: Keep Calm and Wait

By Steve Peers

‘In capitalist countries, the bank robs YOU’. Rightly or wrongly, this phrase sums up the reaction of many EU citizens (as well as many of those outside the EU) to the bank bailouts and austerity of the last few years. The reaction to these concerns has been a series of populist measures by the EU – a restriction on short-selling (upheld by the CJEU), criminal penalties for market abuse, and a possible financial transactions tax (FTT).

As widely expected, the CJEU today ruled against the UK’s legal challenge to the plans of a group of EU Member States to impose an FTT. In the form proposed by the European Commission, the FTT could possibly do significant damage to the UK’s financial industry, based in the City of London. So at first sight, the failure of the UK’s legal challenge today looks like a significant setback to the City. However, in reality it is no such thing, since the UK will still be able to bring a separate legal challenge to the FTT, if and when it is finally adopted – and such a challenge would have a much better chance of being successful.

Background

Far from being a ‘one size fits all’ template, for many years EU law has provided for a number of different possibilities for some Member States to go ahead and adopt EU measures without all Member States participating. This is known in EU jargon as ‘differentiated integration’.

The best known of these possibilities are the rules on the EU’s single currency (along with some related rules on bailouts and economic governance) and on EU Justice and Home Affairs Law. But also there is a lesser known possibility for some Member States to go ahead without the others in any area of EU law, known as ‘enhanced cooperation’.

This possibility was first introduced by the Treaty of Amsterdam (in force 1999), but it was subject to strict rules, such as a de facto veto for each Member State. To make it easier for these rules to be used, particularly in light of the planned large enlargement of the EU, they were amended by the Treaty of Nice (in force 2003). They were amended again by the Treaty of Lisbon (in force 2009), and they have been used in practice three times since that point.

The first use of the enhanced cooperation rules was to adopt a Regulation on the choice of law in divorce in 2010. This proved uncontroversial. Secondly, the EU agreed in 2011 to create a unitary patent for a large number of Member States. Spain and Italy could not agree to the details of this proposal, since they wanted equal status for their languages. They brought a legal challenge to the Council’s decision to authorise enhanced cooperation in this case, but the Court of Justice of the European Union (CJEU) dismissed this challenge in 2013.

The third use of the enhanced cooperation procedure was to authorise a group of Member States to adopt an FTT. As noted already, the UK’s challenge to the decision authorising the FTT was dismissed today.

So why is the UK’s failure today not really a significant setback? The reason is that enhanced cooperation is a two-step procedure. First of all, the EU Council authorises a group of Member States to go ahead in a particular area. These authorisation decisions do not go into any detail about the law concerned. Secondly, the EU institutions then negotiate the details of the legislation which will apply to the participating Member States. This is known as the measure ‘implementing’ enhanced cooperation.

When the enhanced cooperation procedure was used for the first time (as regards choice of law in divorce), the Council very quickly agreed on the measure implementing enhanced cooperation. However, on the second occasion when this procedure was used (the unitary patent), it took nearly two years for the EU to adopt the legislation implementing enhanced cooperation. This was due to a need to agree these implementing rules with the European Parliament, as well as very difficult talks between Member States on a separate treaty creating a Unified Patent Court, particularly because it was hard to agree (among other things) where that Court would be located.

Similarly, although the Commission proposed legislation to set up an FTT back in 2011, and tabled a revised version of this proposal in 2013, once the EU authorised enhanced cooperation as regards the FTT, the participating Member States clearly appear to have difficulties reaching agreement on this proposal (each of the participating Member States has a veto).

Certainly, the Commission proposal is objectionable from the UK’s point of view. It provides not only for taxing transactions which take place in the financial markets of the participating Member States (reasonably enough), but also for taxing transactions which take place in the financial markets of non-participating Member States – as long as one of the parties to the transaction is located in a participating Member State. To this end, the proposal would deem a British bank to be a French bank (for instance) in certain circumstances.

There is a very good argument that this proposal violates the EU’s rules on free trade in the internal market, and interferes with the taxation powers which would normally belong to the UK and other participating Member States. The EU Treaties require any enhanced cooperation to be consistent with those rules. Indeed, it is widely known that the EU Council legal service believes that, for these reasons, the Commission’s proposal would be illegal – if it were in fact adopted.

While the CJEU today rejected those arguments at this stage of the process, this was simply because the final shape of the FTT has not yet been decided. It is entirely possible that the participating Member States might not agree on an FTT at all, or that they might agree on an FTT which does not contain such elements.

Even if they do agree to adopt the Commission’s proposal, the UK will be able to challenge that Directive when the time comes. Similarly, some of Spain’s detailed arguments against the legality of the unitary patent have been raised in a second legal challenge (still pending) which that country has brought against the legality of the EU measures implementing enhanced cooperation in this field.

Conclusion

If the UK had been successful today, it would have ended any prospect of an FTT for the time being. Its failure keeps the prospect of an FTT alive. But because the Court of Justice rightly did not rule on the merits of the UK’s case against the Commission proposal – simply because that proposal has not yet been adopted – the UK has only lost a minor skirmish, not the war.

The mere fact of bringing this legal challenge has made it clear to the participating Member States that the UK will vigorously defend its legal position, and may therefore have contributed to their difficulties in agreeing to the Commission proposal. And the government’s legal action, although unsuccessful, may yet play some role in ensuring that an FTT, if one is finally agreed, does not have an extraterritorial scope.

Without extraterritorial features, an FTT would of course not raise as much money. Then again, the UK could also reduce its budget deficit if it could (for instance) collect a toll from drivers on German motorways, or tax all the cheese bought in France. The absurdity of these scenarios shows why a future British legal challenge to the final FTT, if such a challenge is necessary, would have a much greater chance of success.


Barnard & Peers: chapter 5, chapter 14

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