Reconciling EU free movement rules with UK border controls

By Steve Peers 

Today’s Advocate-General’s opinion in the McCarthycase raises important questions about the scope of the EU’s free movement law rules and the relationship between those rules and EU or national rules on border controls and visas. It concerns Mr. McCarthy, a dual citizen of the UK and Ireland residing in Spain, with his third-country national (Colombian) wife and their joint child (also a dual citizen of the UK and Ireland).

Each time the family seeks to travel to the UK for short visits, they have to obtain a ‘family visa’ for Mr. McCarthy’s wife. This entails a trip within Spain from their residence in Marbella to the British consulate. Is this compatible with EU law?

As regards short visits, an issue like this one will largely arise only for people travelling between the Member States applying the Schengen rules (22 Member States, plus 4 non-EU associates) and the Member States not applying those rules (the UK, Ireland, Romania, Bulgaria, Cyprus and Croatia). That’s because legal third-country national residents of the Schengen States don’t need visas to visit other Schengen States, whether they are family members of an EU citizen (or travelling with that EU citizen) or not. In any case, they aren’t checked when they cross the borders between those States.

However, the UK and Ireland have negotiated a special protocol relating to border controls with the rest of the EU. They can check people at the borders to determine whether they are really entitled to enter the country in accordance with EU law. The other four non-Schengen States are obliged to join Schengen eventually, and must apply aspects of the Schengen rules in the meantime.

So is Mr. McCarthy’s wife entitled to enter the UK with him, and what rules apply when she seeks to do so? The starting point is the EU’s citizens’ Directive, adopted in 2004, which (among other things) intended to facilitate travel and residence for exactly this category of persons. The third-country national family members of EU citizens resident in other Member States (like Mrs. McCarthy) have to be given a ‘residence card’ to prove their status. If they have such a card – and Mrs. McCarthy does – they can travel to other Member States without having to obtain a visa, even if (for instance, if they are Colombians visiting the UK) they would normally have to do so.

This works both ways: for instance, if a French woman living in the UK wished to visit Germany with her Nigerian wife, Germany could not insist that the third-country national spouse obtain a Schengen visa, if the latter woman held a residence card.

In light of this legal background, what is the problem? There is clearly no possibility for the UK to require a ‘family visa’ for these trips. In fact, three issues arise in this case: the applicability of EU free movement law; the possibility of measures to control ‘abuse’ of EU law rights; and the interpretation of the borders protocol.  

Scope of EU law

At first sight, the McCarthy family’s position falls squarely within the scope of EU law, as he is a British & Irish citizen living in Spain with his family. But the case does not concern his position in Spain, but his visits to the UK, where he is a citizen.

The Advocate-General refers to recent CJEU case law (the S and O judgment) applying the citizens Directive by analogy to cases where a citizen of one Member State moves to another Member State, then seeks to return with his or her family to that first Member State. In his view, it is unsatisfactory to interpret EU primary law (the Treaty free movement rules) in accordance with secondary law which does not apply to that specific case. So he argues that the citizens’ Directive as such should apply to such cases, or at least to short-term visits as distinct from longer-term residence. 

Abuse of EU rights

Article 35 of the citizens’ Directive allows for measures to be taken to control abuse of free movement rights. The UK doesn’t claim that anyone in the McCarthy family is abusing those rights. But of course the ‘family visa’ requirement wasn’t adopted specifically for them, but for all third-country national family members of EU citizens who have moved between Member States, and who seek to visit the UK on the basis of a residence card.

The UK argues that the ‘family visa’ rule is justified because checks by the UK Border Agency found that a significant number of those holding residence cards were not genuinely entitled to them (it exempts from the rule those whose residence cards were issued in a more secure form). However, in the Advocate-General’s view, a measure taken against the abuse of rights can only concern individual cases, not all cases.

Border control powers

Finally, the opinion argues that the UK cannot justify its position by reference to the borders protocol. It allows the UK to check at its borders if people have rights under EU law, but not to breach EU free movement law as regards the position of those who indeed enjoy such rights.

Comments

On the questions actually asked by the national court (on abuse of rights and the borders protocol), the opinion is clearly correct. As regards abuse of rights, the limitation of this principle to individual cases is clearly established in prior CJEU case law. Indeed, the facts of this case show why the principle should be limited in that way, as the UK is seeking to do exactly what the Directive prohibits: to impose a visa requirement upon third-country national family members holding residence cards.

As regards the borders protocol, it is clearly and expressly subordinate to EU free movement law. The approach suggested in the opinion would leave the UK free to check that everyone seeking to enter the country pursuant to EU free movement law was entitled to do so, without restricting the free movement rights of those persons any further.

Undoubtedly, though, the evidence suggests that some individuals with residence cards are not entitled to have them. This is a legitimate concern of the UK government, but its response was simply disproportionate. So the opinion should have referred in more detail to other methods of dealing with this issue, for instance a joint agreement between Member States on common standards to ensure the authenticity of residence cards.

Finally, what about the scope of the Directive, an issue only raised by the CJEU itself? On this point, with great respect, the Advocate-General has led himself down something of a garden path. The key flaw in his reasoning is his implicit assumption that the EU citizens’ Directive can never apply to a citizen of the host Member State who is also a citizen of another Member State. On the one hand, it is correct (based on the case law, and the clear wording of the Directive) to say that British citizens, like Mr. McCarthy, cannot invoke the Directive against the UK. But on the other hand, Irish citizens, like Mr. McCarthy, certainly can. Like Schrodinger’s cat, he is simultaneously covered by the Directive, and not covered by it.

Back in 2011, in a case involving a differentdual British and Irish citizen named McCarthy, the CJEU ruled that the Directive could not apply. But in that case, the McCarthy in question had never resided outside the UK. As I have argued (along with Jonathan Tomkin and Elspeth Guild), in the Commentary on the EU citizens’ Directive, that judgment should only apply where a dual citizen of two Member States has always resided in one of them, which is hardly the situation when the person concerned in fact lives in a third Member State. More broadly, we argue that the 2011 McCarthy judgment is contradictory and confused, and should be set aside at the earliest opportunity. It is a great shame that the opinion does not seize the opportunity either to call for overturning the judgment or for limiting its scope, but rather assumes that its scope is very broad indeed.

Having opened Pandora’s Box by arguing implicitly that nodual citizens of two Member States can everrely on the citizens’ Directive, the Advocate-General immediately tries to close it again, by calling upon the Court to reverse the rule which he has himself created. But it would be better not to create that rule in the first place. One cannot seriously argue that the 2014 McCarthy, a pensioner who has spent only five years of his life in the UK, should be in the same legal position as regards the UK as the 2011 McCarthy, who had never resided outside the country.

Leaving aside the position of dual citizens, the Advocate-General’s opinion would also e relevant to the citizen of one Member State who seeks to visit his or her own country. Since CJEU case law has already confirmed that EU free movement law applies to those who return to their own country to reside there, it must also apply to those who return only to visit.

But does the EU citizens’ Directive apply as such(as the opinion argues) or by analogy(as the CJEU case law says)? Really, this is a distinction without a difference, as the outcome would be the same whichever route is chosen. Either way, the Court would be giving effect to the spirit of the free movement rules. It is unfortunate that the Advocate-General chose to chase this semantic butterfly, while leaving the front door open to the deterioration of the legal position of those who are dual citizens of two Member States. 


Barnard & Peers: chapter 13, chapter 26

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Access to documents: the Council might not implement a key CJEU judgment

Steve Peers

The EU is often accused by critics of a lack of openness and transparency – and often such criticisms are justified. This is particularly the case as regards the EU legislative process. In principle, this process ought to resemble the open process seen in national legislatures, with full public access to the drafts of legislation that passes through the legislative chamber(s).

However, despite the adoption of a general Regulation on access to documents in 2001, this aspect (among others) of EU transparency is problematic. The reason for this is that, within the Council, some Member States wish to keep their positions secret, at least while the negotiations are ongoing. Of course, this profoundly undermines the argument that citizens of each Member States, via national parliaments, can hold each individual government accountable for its action within the Council. For some Member States, though, accountability would bring embarrassment.

The CJEU, in accordance with its prior case law emphasising the importance of transparency in the EU legislative process, ruled in the Open Access Info judgment last year that the names of Member States in principle had to be released to the public. This ruling would seem to be straightforward enough. But the Council is trying to wriggle out of it.

According to an internal Council document discussed by Member States’ EU ambassadors (Coreper) last week, the Council is considering three options: referring always to Member State positions; making no reference to Member State positions; or continuing an unsystematic approach to this issue. The first option (full transparency) is rejected, because it sometimes this will not be ‘appropriate’, ie it might embarrass Member States. The second option is rejected, because it will be useful to have a record of Member States’ positions. So the suggestion is for the third option.

If this third option is chosen, what seems likely to result is that whenever a Member State believes that its position might be embarrassing, it will ask that there should be no listing of its name in the footnotes. Moreover, the Council document does not foresee any active transparency, ie disclosing a document with Member States’ positions as soon as it is drawn up. The new rules (when agreed) will only apply to documents when an individual requests a copy of them. By the time that the Council replies to such a request, discussions on a particular issue could have moved on and so there will not be an opportunity to have a public debate on whether a particular Member State’s position is justified.

So the whole process of challenging the Council in Court as regards this crucial aspect of EU legislative decision-making is ultimately likely to have only limited practical effect. Perhaps the next step in this battle will have to be non-judicial: either a demand by the European Parliament that the Council open up its legislative proceedings further (or at the very least, that both institutions open up the secretive ‘trialogue’ process); or a complaint to the European Ombudsman that the Council should proactively make all its legislative documents public without individual request.

Barnard & Peers: chapter 3, chapter 8

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

By Henri Labayle and Emilio De Capitani 

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

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

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

I - The democratic imperative

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

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

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

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

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

1. The institutional context

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

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

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

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

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

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

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

2 . The AFSJ Material Context

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

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

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

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

II - The challenge of efficiency

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

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

1. The principle of solidarity and burden-sharing

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

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

2 . Evaluation

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

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

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

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

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

Conclusions

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

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

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

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Towards a Web 3.0? The impact of the Google Spain judgment on social networks and Wikipedia

Steve Peers

If its age could be measured in ‘Internet years’, the EU’s data protection Directive would be prehistoric. This can easily be demonstrated by comparison with the age of Facebook. The Directive was adopted seven years before the virtual panty raid on Harvard students’ privacy that ultimately launched Facebook. Indeed, when the Directive was adopted in 1995, Mark Zuckerberg was eleven years old, and attending primary school. He turns 30 today.

That’s a significant birthday – but is there anything in the Google Spain judgment that would ruin the party? This blog post looks in detail at the possible application of the judgment to two well-known features of the Internet: social networks and Wikipedia.

Long ago (in Internet years), the Internet shifted to a ‘Web 2.0’ model, dominated increasingly by user-generated content such as social networks and Wikipedia (along with blogs and many other forms of such content). The question I want to pose here is whether the Google Spain judgment could launch a ‘Web 3.0’: an Internet dominated by data subjects’ control of their personal data?

Applying the Google Spain judgment to social networks and Wikipedia

Material scope of EU law

First of all, the information placed on social networks and Wikipedia certainly constitutes personal data, at least as far as it concerns living natural persons. It’s an interesting question as to whether the legislation also applies to dead persons: this conjures up the image of the supporters and critics of (say) Ronald Reagan or Margaret Thatcher using data protection law to litigate over the reputation of their heroes (or villains). But the exclusion of legal persons means that data protection law cannot be a vehicle for companies (or other legal persons such as NGOs, political parties, charities or governments) to attempt to remove all traces of criticism of their actions.

As the CJEU has made clear several times, it isn’t relevant that the data was initially (or subsequently) made available elsewhere. This point is relevant to Wikipedia in particular, given the sources it links to for most of its information.  

Placing information on the Internet amounts to ‘data processing’, at least where it is available to the general public. This is particularly relevant to Wikipedia, but it’s also relevant to those social network profiles which are accessible to the outside world. In both cases, the personal data would also be accessible by means of search engines, which means that Google (or other search engines) would be separately liable for securing data protection rights under the conditions set out in the Google Spain judgment.

However, where a social network profile is genuinely closed to the outside world and made accessible only to persons selected by the data subject, the EU’s ‘Article 29’ working party on data protection (a body made up of national data protection supervisors, which gives non-binding advice on the application of EU data protection law) has suggested that the so-called ‘household exception’ in the Directive might apply. This would mean that, since the data could only be seen by a closed circle of (presumably) friends and family, the EU law wouldn’t apply at all. Obviously, though, that exception wouldn’t apply to any processing of the personal data in question by the company which established the social network itself, for direct marketing or other purposes.

Who is the ‘data controller’, ie the person with greater liability for application of EU data protection legislation, as regards social networks and Wikipedia? On this point, there is a clash between the nature of Web 2.0 and the putative Web 3.0, to the extent that the content of the personal data is generated by the users. In principle, each individual chooses how much personal data to place online and who has access to it, and similarly the editors of Wikipedia generate its content. The liability of the social network provider or Wikipedia might arise, however, to the extent that they alter the privacy settings, or could be regarded as controlling (as in Google Spain) the systematic presentation of the data to the outside world.  We can’t forget that in that judgment, the CJEU ruled that there has to be a ‘broad definition of the concept’ of a data controller.

Territorial scope

Back when the Internet was (in Internet years) a teenager, the CJEU ruled in Lindqvist that the special rules on external relations in the data protection Directive should not, by means of the nature of the Internet, become a general regime applicable to the entire world. But in Google Spain, the Court conversely was anxious to ensure that the general rules of the Directive were applicable to companies based outside the EU.

However, this doesn’t mean that all social networks, or Wikipedia, are necessarily subject to the Directive. They are certainly subject to it if they are in the same situation as Google: with a subsidiary in a Member State, which is selling advertising connected to the Internet-related activities of the parent body. But this is surely not the only scenario when the Directive applies to companies based outside the EU. As the CJEU said in Google Spain, the Directive has ‘a particularly broad territorial scope’ and the relevant rules ‘cannot be interpreted restrictively’. So while it is an oversimplification to say that the Directive applies to any entity ‘doing business in the EU’, it probably applies at least where there is a significant local activity (certainly in the form of a branch, possibly in the form of an agent or licensee) by the parent entity, that has some link to its Internet activities.

It is also still open to argue (since the Court did not address the issue) whether a parent company can be regarded as ‘established’ or using equipment on the territory due to its use of domain names, storage of data, and use of crawlers or robots on the territory, or whether the EU Charter of Fundamental Rights imposes broader criteria as regards the territorial scope of the rules.

Of course, there will be practical difficulties enforcing the Directive where a non-EU entity does not have assets in the EU. However, in such cases there might be possibilities to enforce the Directive’s rules by seeking to enforce a court ruling in a non-Member State, or more directly by means of obtaining an injunction to block access to the information which infringes data protection rules. Undoubtedly, such an injunction could be sought against Google, where the data is accessible by means of its search engine, and arguably (by analogy with copyright law) against an Internet service provider.

Personal scope

One interesting question which the Court did not have to deal with in Google Spain was the personal scope of data subjects. For instance, could a celebrity based in America, who finally gets tired of stories about her enormous backside, try to use EU data protection law to prevent access to such stories?

There is no requirement in the Directive that the data subject must be a national of a Member State, and/or domiciled in the EU. Nor do the rules on the territorial scope of the Directive mention this factor. So it must follow that non-EU citizens who are not resident in the EU can rely upon the Directive to assert their data protection rights within Member States. So in principle, at least, the supporters and detractors of Barack Obama or Vladimir Putin could bring their disputes, in the context of editing Wikipedia entries, to the courts and data protection supervisors of EU countries.

While this might sound absurd, in fact there are other reasons which would stand in the way of the application of EU data protection law to such disputes – to which we now turn.

Responsibility of data controllers

Data controllers must ensure that the data quality rules in the Directive are satisfied, and that data was processed in accordance with one of the legal grounds for processing.

On the latter point, one of the crucial factors in the Google Spain case was that Google could only rely (as regards its search engine) on its ‘legitimate [commercial] interest’ in processing personal data, in accordance with Article 7(f) of the Directive. The same provision refers to the interests of third parties, namely freedom of expression. However, the Court held that such interests were overridden by the data subject’s rights in that case, due to the huge invasion of his privacy due to the use of search engines.

Two issues arise here: the balancing test, and the grounds for processing. The first issue is particularly relevant for Wikipedia, since (like Google, as regards its search engine) it must rely on this balancing test in order to justify its processing of personal data, in the absence of other possible grounds to justify it.  

Applying the balancing test, the CJEU ruled on both Google’s interest and the public interest in freedom of expression. As regards Google, the Court stated that its ‘merely economic’ interests were outweighed by the data subject’s. This suggests that a non-profit body like Wikipedia would arguably have a greater claim to assert its interests than a profit-making entity.

As regards the public interest, the Court listed the factors to be considered as ‘the nature of the information’, its ‘sensitivity for the data subject’s private life’, and the public’s interest in the data, which could ‘vary, in particular’, on the data subject’s ‘role…in public life’. It should be recalled that the concept of ‘private life’ usually includes data concerning a person’s activity in public, but here the Court does suggest that there might be a distinction between public and private activities. So the balance tips in favour of freedom of expression the more that the person concerned is a public figure, and the more that the information concerns his or her public activities. So certainly Wikipedia could contain a record of public criticism of a politician; but the sordid details of his intern’s (postponed) dry-cleaning might possibly be another matter.

The crucial question here is whether the test can be regarded as severable: ie can it be argued that even if a person is a public figure, his or her public and private activities can be distinguished? In any event, his or her mistress or children are data subjects in their own right, so would have a data protection right to assert independently of the politician, and are unlikely to be public figures. But of course, some spurned mistresses are very keen indeed to waive their data protection rights.

But who is a public figure in the first place? Presumably the concept has an autonomous meaning in EU law, so it is not up to Wikipedia (or the persons concerned) to determine what it means by themselves. But surely the nature of Wikipedia is a significant factor to take into account when developing and applying such a definition.

As regards the nature of the personal data, what if the information in question reflects very badly upon the person concerned? The CJEU did not address this issue expressly in Google Spain. But it could be argued that it depends on the public interest in receiving that information. So while past financial difficulty does not raise a public interest issue, there is a better case for arguing (say) that a woman who has been groped by a particular car mechanic has every right to warn other women against him via means of social networks.

Another crucial element in the Google Spain judgment was the journalist exception in the Directive. It didn’t apply, because Google itself was not a journalist, and the Court disregarded the use that journalists make of search engines. But where content is user-generated, such as Wikipedia and on blogs, surely the exception must apply, given the Court’s broad approach to it in previous judgments such as Satamedia and Lindqvist. So in that case it could be argued that the exception should be applied in practice by the national courts. Indeed, perhaps the only reason why the CJEU undertook the task of applying the balancing test between privacy and freedom of expression itself in Google Spain was because the journalist exception did not apply.

As for the second issue, social networks will usually be able to point to other grounds justifying the processing of personal data: namely unambiguous consent, and necessity to perform a contract. This raises important questions of how to interpret these grounds for data processing, but these are clearly different issues not addressed at all by the Google Spain judgment.

That judgment would only be relevant as regards the processing of personal data about third parties in social networks, for instance a man ranting about his ex-girlfriend on his Facebook page. The way to resolve situations such as these is for social networks to adopt and apply robust privacy policies, but the Google Spainjudgment can only be an indirect source of inspiration for such policies.  

The right to be forgotten

Finally, what of the ‘right to be forgotten’? The Court derived such an implicit right from the rules in the Directive on the relevance of data (one of the data quality principles), given that it might cease to be relevant over a long period of time.  While this can be seen as a positive right for data subjects, conversely it suggests that if information is accurate (and complies with all other rules in the Directive), there is not much of a right for a data subject to object to its dissemination as long as it is relatively fresh.

Conclusion

Is there good reason for Mark Zuckerberg's own knickers to be in a twist, following the Google Spain judgment? The CJEU does suggest that the territorial scope of the Directive is relatively broad, and as such is more likely to apply to social networks and other well-known Internet services than might otherwise have been thought. But it is not yet certain whether and when the Directive does apply to entities whose situation differs from Google’s. Equally the judgment confirms that the material scope of the Directive is broad, and it seems clear enough that its personal scope is broad too.

However, the judgment is unlikely to lead to a ‘Web 3.0’ as regards Internet services besides search engines, because there are basic differences in the substantive data protection law of the EU as it applies to the bodies offering such services. These differences concern in particular: the very nature of user-generated content (arguably changing who is the ‘data controller’); the existence of privacy or editing policies; the public figure exception; the possible application of different, additional grounds for processing personal data; and the Google Spain judgment itself – since it provides for an alternative, more effective means of blocking access to the personal data concerned.

Barnard & Peers: chapter 9

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The CJEU's Google Spain judgment: failing to balance privacy and freedom of expression

By Steve Peers

The EU’s data protection Directive was adopted in 1995, when the Internet was in its infancy, and most or all Internet household names did not exist. In particular, the first version of the code for Google search engines was first written the following year, and the company was officially founded in September 1998 – shortly before Member States’ deadline to implement the Directive.

Yet, pending the completion of negotiations for a controversial revision of the Directive proposed by the Commission, this legislation remains applicable to the Internet as it has developed since. Many years of controversy as to whether (and if so, how) the Directive applies to key elements of the Web, such as social networks, search engines and cookies have culminated today in the CJEU’s judgment in GoogleSpain, which concerns search engines.

The background to the case, as further explained by Lorna Woods, concerns a Spanish citizen who no longer wanted an old newspaper report on his financial history (concerning social security debts) to be available via Google. Of course, the mere fact that he has brought this legal challenge likely means that that the details of his financial history will become known even more widely – much as many thousands of EU law students have memorised the name of Mr. Stauder, who similarly brought a legal challenge with a view to keeping his financial difficulties private, resulting in the first CJEU judgment on the role of human rights in EU law.

The Court’s judgment

The CJEU addressed four key issues in its judgment: (a) the material scope of the Directive, ie whether it applies to search engines; (b) the territorial scope of the Directive, ie whether it applies to Google Spain, given that the parent company is based in Silicon Valley; (c) the responsibility of search engine operators; and (d) the concept of the ‘right to be forgotten’, ie the right of an individual to insist (in this case) that his or her history be removed from accessibility via a search engine. The details of the Court’s ruling have been summarised by Lorna Woods, but I will repeat some key points here in order to put the following analysis into context.  

Material scope

Does the Directive apply to search engines? The CJEU said yes.  The information at issue was undoubtedly ‘personal data’, and placing it on a website was ‘processing’. A search engine was processing personal data, even though it originated from third parties, because (using the definition in the Directive) it ‘collects’ data from the Internet, then ‘retrieves’, ‘stores’ and ‘discloses’ it. It was irrelevant that the material had been published elsewhere and not altered by Google, as the CJEU had already ruled in the Satamedia case (in the context of tax information published on CD-ROM). Moreover the definition of ‘processing’ does not require that the data be altered.

A second – and perhaps more important point – was whether Google was a ‘controller’ of the data, with the result that it has liability for the data processing.  Again the key issue was Google’s use of data already published elsewhere. The Advocate-General had concluded from this that Google was not a data controller – but the CJEU reached the opposite conclusion. On this point, the Court, ruling that there must be a ‘broad definition of the concept’ of a ‘controller’, distinguished between the original publication of the data and its processing by a search engine: Google undoubtedly controlled the latter activity, by means of its control over the search process. One is unavoidably reminded of the Machiavellian search-engine billionaire who frequently appears on episodes of The Good Wife – although of course he is nothing like the executives of Google.

In particular, the Court ruled that the activities of search engines make information available to people who would not have found it on the original web page, and provides a ‘detailed profile of the data subject’, and so have a much greater impact on the right to privacy than the original website publication.

Territorial scope

Does the Directive apply to search engine companies based in California, with a subsidiary in Spain? The national court suggested three grounds on which this might be the case: the ‘establishment’ in the territory; the ‘use of equipment’ in the territory (as regards crawlers or robots, the possible storage of data and the use of domain names); or the default application of the EU Charter of Fundamental Rights.

The Court found that Google Spain was ‘established’ in the territory, and therefore the data protection Directive, in the form implemented by Spain, applied. It was not necessary to rule on the other possibilities as regards the scope of the Directive, which are very significant in the context of the Internet, so those issues remain open. It should be noted, however, that in light of the objectives of the Directive, the rules on its scope ‘cannot be interpreted restrictively’, and that it had ‘a particularly broad territorial scope’.

Why was Google Spain established there, even though it did not carry out any search engine activities? The CJEU said that it was sufficient that the company carried out advertisingactivities, these being linked to the well-known business model of Google (selling advertising which was relevant to search engine results).

Responsibility of search engine operators

The CJEU ruled that search engine operators are responsible, distinct from the original web page publishers, for removing information on data subjects from search engine results, even where the publication on the original pages might be lawful. It confirmed that the right to demand rectification, erasure or blocking of data did not apply only where the data was inaccurate or inaccurate, but also where the processing was unlawful for any other reason, including non-compliance with any other ground in the Directive relating to data quality or criteria for data processing, or in the context of the right to object to data processing on ‘compelling legitimate grounds’.

This meant that data subjects could request that search engines delete personal data from their search results, and complain to the courts or data protection supervisory authorities if they refused.  As for Article 7(f) of the Directive, which provides that one ground for processing data (where there was no contract, legal obligation, public interest requirement or consent by the data subject) was the ‘legitimate interests of the controller’, this was a case where (as Article 7(f) provides) those interests were ‘overridden’ by the rights of the data subject.

There has to be a balancing of rights in such cases – including the public right to freedom of expression – but in light of the ease of obtaining information on data subjects, and the ‘ubiquitous’ nature of the ‘detailed profile’ that results from search engine results, the huge impact on the right to privacy ‘cannot be justified by merely the economic interest’ of the search engine operator. The public interest in the information was only relevant where the data subject played a role in public life.

In light of the greater impact of search engine results on the right to privacy, search engines are not only subject to a separate application of the balancing test, but a more stringent application of that test – meaning that the information might remain available on the original website, even if it was blocked from the search engine results. The CJEU states that search engines cannot rely on the ‘journalistic’ exception from the Directive.

The ‘right to be forgotten’

Finally, the CJEU accepts the arguments that the Directive’s requirements that personal data must be retained for limited periods, only for as long as it is relevant, amounts to a form of ‘right to be forgotten’ (although the Court does not say that such a right exists as such). While it leaves it to the national court to apply such a right to the facts of this case, the Court clearly guides the national court to the conclusion that the data subject’s rights have been violated.

Comments

The essential problem with this judgment is that the CJEU concerns itself so much with enforcing the right to privacy, that it forgot that other rights are also applicable.

As regards the right to privacy, the Court’s analysis is convincing. Of course, information on a named person’s financial affairs is ‘personal data’, and it has long been established that prior publication is irrelevant in this regard – a particularly important point for search engines. Equally, the Court had previously ruled (convincingly) in the Lindqvist judgment that placing data online is a form of ‘data processing’. 

While it is less obvious that Google is a ‘data controller’, given that it does not control the original publication of the data, the Court’s conclusion that search engines are data controllers is ultimately convincing, given the additional processing that results from the use of a search engine, along with the enormous added value that a search engine brings for anyone who seeks to find that data. In this sense, Google is a victim of its own success.

Similarly, as regards the territorial scope of the Directive, it would be remarkable if Google, having established a subsidiary and domain name in Spain and sought to sell advertising there, would not be regarded as being ‘established’ in that country. The sale of advertising in connection with free searches is, of course, the key element of Google’s business model (leaving aside the many other companies, such as YouTube and Blogger, that Google has acquired over the years), and making money is surely one of the ‘activities’ of any business that aims to make profits.

The separate liability of Google as a ‘data controller’ obviously justifies the Court’s conclusion that it might, in appropriate cases, be required to take down material from its search engine results that infringes the data protection directive. This is most obviously relevant where that data is inaccurate or libellous, but that is not the case here, where the personal data is simply embarrassing.

So, in the absence of another legitimate ground for processing (which will normally be the case as regards search engines), the case ultimately turns on the balancing of interests between the data subject, the search engine and other Internet users. And here is where the Court’s reasoning goes awry.

In its previous judgment in ASNEF, the Court ruled that Spanish law failed to apply the correct balance between data subjects and direct marketing companies, because by banning any use of personal data which was not already public, it implicitly did not give enough weight to the company’s right to carry on a business. But here the Court makes no reference to that right, even though Google’s methods are as central to its business model as the use of private personal data is for direct marketers. Indeed, Google’s highly targeted advertising (not as such an issue in this case) is itself obviously a form of direct marketing.

Also in ASNEF, the Court criticised the Spanish law for its automaticity, because it failed to weigh up the interests of companies and data subjects in individual cases. But in Google Spain, it is the Court which sets out an automatic test: the economic interest of the search engine is overridden if the individual is not a public figure.

The interests of other Internet users are only briefly mentioned, even though Article 7(f) requires only a balancing of interests between not only as between the data controller (ie, the search engine in this case) and the data subject, but also as regards third parties to whom the data are disclosed, ie the general public. Oddly, the Court does not expressly refer to the Charter right to freedom of expression (it’s in Article 11 of the Charter), and does not expressly link its statements about the balancing test to the case law of the European Court of Human Rights on the best way to balance privacy and freedom of expression.

Furthermore, unlike in ASNEF, the Court makes no mention of Article 52 of the Charter (the provision dealing with limitation of Charter rights, including in the interest of protecting other rights, which also requires consistent interpretation with the ECHR). It should also be noted that, in deciding the key freedom of expression issue itself, the Court has departed from its prior approach (in Satamedia and Lindqvist, for instance) of leaving it to the national courts to decide on this issue.

The Court’s dismissal of the journalistic exception also contradicts its willingness to agree, in Satamedia, that merely sending personal tax data by text message to nosy neighbours could constitute ‘journalism’. Here, of course, it is not Google which is the journalist; but Google is a crucial intermediaryfor journalists. If journalism can consist of sending out tax information by text message, it could also equally consist of commenting (for whatever reason, and in whatever forum) on an individual’s past financial problems. And there is no reason why the passage of time should count against the exercise of the right of freedom of expression – although that factor should be relevant, as the Court says, as regards the right to privacy.

Consequences of the judgment

Obviously, today’s judgment only concerns search engines, but it may have broader relevance than that.  Its relevance to social networks will soon be considered in another post on this blog. For search engines, those which are less successful than Google might not have an ‘establishment’ within the meaning of this judgment, which raises the question of whether they would otherwise have an establishment, use equipment on the territory, or can be covered due to the Charter.

More broadly, any non-EU company with a subsidiary selling advertising in an EU Member State in connection with its Internet services must obviously be regarded as covered by the data protection Directive by analogy with this judgment, without prejudice to those broader possibilities.

As for those search engines which do fall within the scope of the judgment, most obviously Google, it seems that their legal obligations are considerably greater than what they had thought them to be. They must respond to individual complaints that the personal data which can be found about that individual is simply too old to be relevant any more, whether it is accurate or not, and they can be challenged before the courts or a supervisory authority if they do not comply.  In fact, an individual could also take action to this end before a supervisory authority.

Could a supervisory authority act of its own motion to enforce this judgment? Probably not, because the rights at issue in this case are triggered by individual complaints. Some people assiduously search Google to see what results they can find on themselves; in this context, I should point out that I am not the same ‘Steve Peers’ from Essex who has been convicted for non-payment of council tax. But others are unaware of, or don’t care about, or couldn’t be bothered to challenge, or are positively thrilled about, the existence of old information about them which can be found by means of using Google.

So not everyone who might conceivably be embarrassed by such old information will complain to Google, but a considerable number are likely to do so. Google’s liability extends to responding to such individuals, but not to completely changing the way it processes personal data in the absence of such complaints. 

Interesting questions may arise, however, as regards the interpretation of the rules set out in the judgment: what exactly is a public figure, and how long has to pass before personal data is no longer relevant? For instance, a job applicant can certainly object to Google if its search results include pictures of her dancing drunkenly on a table in 1998. But she could hardly argue that a record of last night’s debauchery must be 'forgotten'  already - even if she cannot remember it herself. 

Such disputes may well prove an opportunity to argue that the remit of this judgment is narrower than it first appears, or even to request (which any national court can do) that the Court reverse at least some aspects of its judgment. For now, however, the CJEU has established a potentially far-reaching right to be forgotten, with possible significant impacts at least on the activity of search engines. While in the Lindqvist judgment, the Court was keen to ensure that the data protection Directive was adapted to the reality of the Internet, in Google Spain it seems to demand that the Internet should rather be adapted to the Directive. 

As for the initiative to amend the Directive (to be replaced by a general data protection Regulation), this judgment might speed that process up, since Internet companies now have an incentive to use the process as an opportunity to limit their liability compared to what it would otherwise be - rather than (before the judgment) an interest in slowing the process down, in order to avoid an increase in that liability. Time will tell what the result of that negotiation will be.

Barnard & Peers: chapter 9

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Assessing the new EU Council Guidelines on Freedom of Expression - online and offline

Professor Lorna Woods, University of Essex; co-author, Steiner and Woods, EU Law 

Yesterday the Council of the European Union adopted guidelines on freedom of expression.  As these guidelines were adopted by the Foreign Affairs Council, it is not surprising that they are aimed at implementation within the Union’s Common Foreign and Security Policy, like the ten previous guidelines on issues such as torture, the death penalty and human rights defenders.  So, while the guidelines are ‘guided’ by the EU Charter, as well as any relevant EU treaty provisions, the principal sources referred to are the provisions in the United Nations’ International Covenant on Civil and Political Rights (ICCPR) as well as the UN Human Rights Committee’s General Comment 34 on Freedom of Expression.  The list of sources contained in the Annex is far wider, however. It is also worthwhile noting that there is some discrepancy between what the EU asks of others – especially would be Member States via the Copenhagen criteria applied to planned accession candidates – and the recent practice of its own Member States (whether that be Hungary or the United Kingdom).

The Guidelines follow what might be termed a standard human rights approach to freedom of expression: that is, that freedom of expression should be interpreted broadly and exceptions narrowly (referring to the list of possible exceptions set out in Article 19(3) ICCPR as well as Article 20(2) ICCPR, on hate speech) and subject to the tests of legality, necessity and proportionality.  In explaining the significance of freedom of speech, the Guidelines refer to the significance of that freedom (especially that of the media) in democracy, but they also refer to the human element: that speech is important for self-fulfilment and autonomy, including the development of one’s identity in society, and not just instrumentally in the search for ‘truth’ or the ‘right’ political answer – important though that may be. Having said that, much of the specific points relate to the role of journalism and the media, with the underpinning assumptions about the role of the media as watchdog of those in power. 

The guidelines also note the horizontal nature of freedom of expression – especially relevant in the context of the Internet and social media, when expression is not just about public institutions and the media speaking to a passive audience (which was the model for much of the previous case law) but also the right of individuals to speak to one another and to receive each others’ views. This point has been given a higher profile in the approach of the Inter-American Court of Human Rights than traditionally has been the case in relation to Article 10 ECHR and Article 19 ICCPR. Despite this emphasis, there is recognition of the both the relationship between privacy and freedom of expression and the tension between them. Interestingly, in this document the former aspect – through consideration of the impact of surveillance on speech - may have a higher profile than the latter.

The guidelines identify some areas of priority action, and in some respects these areas of action are no surprise, starting with the need to end the impunity of those who take action against individuals for exercising their right of freedom of expression – notably journalists and media workers. In addition to condemning such actions, the EU will apparently call on the relevant state actors to take action against such threats of violence as well as violence itself.  If the EU does take action, it may provide incentives for some governments to take note of the UN General Assembly resolution on the subject, as well as the Action Plan to end impunity. In the tools section, the guidelines provide:

Abusive restrictions on freedom of expression and violence against journalists and other media actors should be taken into account by the EU when deciding on possible suspension of cooperation, notably as regards financial assistance.

This is a proposal that some involved in the campaign against impunity have been suggesting for some time.  How it works in practice remains to be seen.

The Guidelines identify the need to ensure that laws are not used to suppress freedom of expression, and that media regulation is appropriate to ensuring freedom of expression. Note that some of the points in this section go further than the regulatory position required of the Member States of the EU, specifically as regard the independence of regulatory bodies. While the EU’s communications package and the data protection regime expect that there be independent regulatory bodies, there is no such provision in the Audiovisual Media Services Directive, and there is little transparency of media ownership – both to be encouraged according to these guidelines.

The Guidelines also note the importance of freedom of expression in cyberspace, and in particular focus on the need to ensure non –discriminatory access to the Internet – though there is less detail on what this actually means beyond support for the multistakeholder model of Internet Governance – as set out by EU strategies, rather than those identified in the Internet Governance Forum or Netmundial, although engagement with these is envisaged in the tools for action. The Guidelines do note the role of private companies, and set out best practice guidelines reflecting back the UN Guiding Principles on Business and Human Rights, as understood through the EU guidance note for ICT companies on business and human rights.

The first action point, however, is ‘action at the international level to develop best practices and respect for human rights with regard to the export of technologies that could be used for surveillance or censorship by authoritarian regimes’.  The position as regards the United States is not addressed. The significance of the need to protect against excessive surveillance is, however, repeated and its adverse effect of freedom of expression noted.  Thus the guidelines specify that EU action will include the promotion of ‘the exchange of good practices to ensure that the legislation and procedures of States regarding the surveillance of communications and the interception and collection of personal data are based on the rule of law, subject to independent, effective and domestic oversight mechanisms and uphold obligations under international human rights law, including the principles of proportionality and necessity’, something which some Member States may need to think about.  The call to comply with Council Common Position 2008/944/CFSP on exports of specified military technology does not add much, but the statement that ‘the EU will ensure a structured and consistent approach to export controls of certain sensitive information and ICT items’ is potentially far reaching, though what is envisaged by this statement is unclear. Is there a concern about mobile technology that has had back doors engineered into it (at the request of certain Western governments) for example? The next sentence refers however to specific surveillance/censorship technology, suggesting a far narrower field of concern.

Finally, the Guidelines contain plans for evaluation, specifically envisaging a report in three years’ time. While some aspects may show signs of fitting in with global concerns – such as the concerns about the violence against journalists now high on the UN’s agenda or the global revulsion at mass surveillance, it remains hard for the EU successfully to preach certain behaviours when its own Member States have at best a patchy record in these areas.


Barnard & Peers: chapter 9, chapter 24

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Candidates for Commission President: comparing and assessing their immigration policy proposals

Steve Peers

Football fans have long enjoyed playing the game of Fantasy Football, in which they imagine what might happen if a particular grouping of players actually formed a team. Equally, for the time being, aficionados of European Union politics can play Fantasy Commission President, in which they imagine what might happen if any of the particular candidates for Commission President nominated by the European political party groupings got the job.

Of course, as discussed earlier on this blog, it remains to be seen whether, after the elections finish on May 25^th, the European Council would be willing to nominate the candidate of the political party which gets the most seats for President, and what the European Parliament (which has the power to ‘elect’ the President, based on the European Council’s nomination) would do if it doesn’t. For the time being, though, this attempt at a new process for selecting the Commission President has resulted in the candidates announcing some of their policies, which allows us to compare those policies.

To that end, this post first summarises the candidates’ positions on immigration policy, and then compares and assesses those policies. It should be recalled that some European parties have not named a candidate for Commission President (the ECR group including the British Conservatives, and the EFD group including UKIP), so therefore for those parties there are no candidate’s policies to assess here.

Martin Schultz

Yesterday, Martin Schultz, the candidate of the Party of European Socialists, announced his immigration policy. The main points of the policy are: saving the lives of migrants; developing a common policy; positive migration management; applying the principle of loyalty and solidarity; developing a rule-based system; and setting out a long-term vision.

In particular, he believes that countries like Malta, as well as some third countries, bear a disproportionate share of the burden as regards migration towards the European Union, and so ‘a European response is needed’. This involves: coordinating national actions; communication with North African partners about surveillance; exempting ship-masters from prosecution; respect for fundamental rights and non-refoulement; and a strong Commission position as regards evaluation and weaknesses at external borders.

As regards asylum, recognition rates differ widely, and the Dublin system for allocation of asylum-seekers is confusing courts. To address this, he wants to increase resettlement (ie bringing refugees directly from states near their country of origin), take the ‘relocation’ of the persons involved within the EU ‘to the next level’, test the joint processing of applications, increase the integration of refugees and improve the capacity of the European Asylum Support Office, to ‘monitor the quality and consistency of asylum decisions’. He will also keep the idea of temporary protection, a special system to deal with a mass influx of persons fleeing persecution, on the table. The EU should develop relationships with third countries focussed upon encouraging reforms, so as to reduce the desire to migrate in the first place.

As for migration, he wants a well-organised system, mentioning in particular the importance of skills, migrant integration, and attracting university students and researchers.  He also wants to use visa policy to encourage tourism.

Jean-Claude Juncker

The candidate nominated by the European People’s Party has set out a five-pointplan on migration. First, he wants to implement the Common European Asylum System legislation without delay, in order to reduce the wide gap in recognition rates between Member States. Second, he wants to increase the powers of the European Asylum Support Office, as regards risk assessments and tailored training for national administrations. Third, he wants the EU to help address the root causes of migration, in the countries of origin. Fourth, to reduce irregular migration and address demographic problems, he wants to address legal migration, in particular by re-examining the ‘Blue Card’ rules on highly-skilled migration. Finally, he wants to secure the EU’s borders, by boosting Frontex (the EU’s border agency) and applying EU rules on punishing traffickers of persons.

Alexis Tsipras

The candidate of the European Left party set out some immigration policy positions in his declaration of acceptance of his candidacy. He also wants to support countries of origin, to rescue migrants on the open sea, to create reception centres, and to rethink the EU framework, in particular changing the Dublin rules on allocation of responsibility for asylum-seekers.

Ska Keller and Jose Bove

There is no immigration policy position paper as such for the Green Party candidates for Commission President (or at least, none that can easily be found on the Internet). However, an indication of their policy can be found in Ska Keller’s YouTube video. She also criticises the EU’s Dublin system because of its impact on human rights and burden-sharing for small countries, and calls for fairer asylum procedures, the issue of humanitarian visas to would-be refugees and legal access for economic migrants.

Guy Verhofstadt

Finally, the Liberal party candidate only briefly mentions migration policy in his Plan for Europe (note: this is a difficult document to download, and it mostly consists of diagrams). The single paragraph on this issue mentions the importance of burden-sharing and managing legal migration.

Comparing the policies

Interestingly, the Socialist and EPP positions have much in common. Both support cooperation with countries of origin, suggest a plan for legal migration, and wish to reduce the gaps in refugee recognition rates by strengthening the European Asylum Support Office. But there are nuances between them: Juncker wants the office to be more involved in risk assessments and tailored training, while Schultz wants it to monitor Member States’ implementation of EU law. However, Juncker does refer to the importance of implementation of EU asylum law generally. Schultz has further policies relating to sharing asylum burdens, as regards resettlement, relocation, temporary protection and joint processing. It might be deduced that neither candidate is calling for amending the Dublin rules on allocation of responsibility for asylum-seekers.

As for legal migration, Juncker is more specific, calling for review of the specific rules on admission of highly-skilled workers, while Schultz sets out a longer list of objectives but without offering as much detail.

Juncker lays greater stress on controlling external borders, in particular as regards strengthening Frontex and prosecuting traffickers, while Schultz stresses exempting ship captains from prosecution, Commission supervision and respect for fundamental rights.

The Green and European Left candidates’ positions have in common a demand for an overhaul of the EU’s Dublin system. For its part, the Green candidate specifically mentions the issue of humanitarian visas as a possible solution to the problem of safe access to the European Union, and (like Martin Schultz) suggests that there should be more avenues for legal migration, without setting out further details.

Unfortunately, the Verhofstadt policy on immigration is too brief to compare it meaningfully with the others, or to assess it.

Assessing the policies

There is a clear divide between the two bigger parties’ candidates’ implicit positions on the Dublin system of allocating asylum-seekers, and the explicit attack on that system by the Green and Left candidates. While there is certainly much to be said for scrapping the Dublin system entirely or profoundly reforming it, this solution is probably not politically realistic as there is a significant majority of Member States against it, and there would probably not be a majority in favour in the European Parliament either.

So if we are stuck with the Dublin system, what can be done to alleviate the problems arising from its operation? As between the two big parties’ candidates, Juncker’s specific suggestions for a bigger role for the European Asylum Support Office would not do much to alleviate those problems. However, his greater focus on ensuring timely and correct implementation of the second-phase Common European Asylum System might well have that effect – if, by that, he means a new Commission policy devoted to bringing infringement actions more aggressively against Member States.

Schultz’s policies would alleviate the problems with the system via the indirect route of greater relocation, joint processing and resettlement. However, he does not offer many details of such policies, and notably he is only promising to ‘test’ joint processing. As regards relocation of refugees between Member States, it is necessary to have a legal framework for transfer of protection, but he does not mention this expressly. But on the whole, if these policies are pursued vigorously, they might alleviate the effect of the system somewhat.

So would the suggestion to make greater use of the issue of humanitarian visas, as suggested by Ska Keller. She is right to say that this is an existing possibility; in fact, this possibility was discussed previously on this blog.  

Of course, the various suggestions to alleviate the effect of the Dublin system could be combined with each other. If so, the total impact would surely be greater than if only one of the candidates’ suggestions were adopted.

The bigger parties’ candidates’ willingness to engage with third countries is fine if it concerns solely issues such as improvements in their economy and levels of human rights protection. It would be more problematic if it involved third States as remote controllers of EU borders, as long as many of the States in question have questionable human rights records.

As for legal migration, there are already proposals under discussion to amend the EU rules on admission of students and researchers, and to amend EU visa policyto encourage more tourists. So in that respect Schultz is simply supporting legislation that has already been proposed. Juncker’s idea of reforming EU rules to admit more highly-skilled migrants makes sense, but that is likely to have only a modest impact in reducing the numbers who might be inclined to come to the EU by irregular (‘illegal’) means.

Finally, as regards irregular migration, it is striking that Juncker lays more stress on increasing control, Schultz lays more stress on Commission evaluation and the other two candidates lay more stress on saving lives. While Schultz also mentions the importance of human rights in this context, he does not link that with the Commission’s evaluation role. On this point, while there are many good examples of Member States saving hundreds of lives at sea, there are also some bad examples of push-backs or other appalling treatment of migrants at borders. The Commission’s failure to respond to the latter cases has likely given Member States the idea that they can act with impunity.

Conclusions

This is the first time that the policy platforms of individual candidates for Commission President could be compared and assessed before citizens cast a vote for the European Parliament. In 2009, Barroso only produced a policy platform after he was nominated for the job by the European Council – and even that was a development compared to previous practice. The possibility to produce such an analysis, and for the candidates to debate, campaign on and answer public questions regarding immigration (and other) policies, shows the capacity of this new system of advance nominations to improve the democratic functioning of the European Union.

It is, of course, doubtful whether much of this debate has resonated with the general public. And as noted at the outset, it remains to be seen whether the European Council will accept the result of the process at the end of the day. But even if it does not (and the European Parliament accedes to a ‘backroom deal’ on appointment of the Commission President), the process of developing and debating policy might still be relevant when it comes to the Parliament obtaining policy commitments from the next Commission and the next Home Affairs Commissioner on these important issues.

Barnard & Peers: chapter 3, chapter 26

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