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EU: Informal Justice and Home Affairs Council meeting in The Hague, Netherlands

28 March 2012

The Dutch Presidency of the Council of the European Union says that the Informal Justice and Home Affairs Council in the Hague (30 September and 1 October 2004) will be "entirely devoted to the multi-annual programme for the area of freedom, security and justice, in preparation for the European Council meeting of 5 November" (this Council meeting will be adopting the "Tampere II" programme). The EU Presidency has presented a Memorandum (Dutch Presidency: Memorandum) and prepared a series of documents for the meeting.

The issues under discussion are:

Exchange of information

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"Law enforcement agencies in the Member States must not encounter unnecessary obstacles to the exchange of information within the area of freedom, security and justice. Citizens retain the right to protection against abuses and incorrect information." (Presidency Memorandum)

i) Note from Presidency: Exchange of Information, 12680/04 (pdf)

ii) Comment: Proposal stemming from European Commission Communication (see below) for unfettered access by all law enforcement agencies (police, customs, immigration) to each other's databases. The Presidency says that:

"a law enforcement officer in one Member State who needs information in order to perform his duties can obtain this from another Member State without any problem, and that the law enforcement agency in the other Member State which holds this information is obliged to make it available for the stated purpose"

There is no mention of how this exchange of information is to be regulated or controlled. The Presidency also says that: "priority must be given to granting mutual access to national databases".

There is the usual caveat that: "citizens be protected against abuses and incorrect information". How is this to be guaranteed? Most citizens do not know what information is held on them and there is no data protection law covering law enforcement agencies.

Tony Bunyan, Statewatch editor, commented on the Commission Communication that:

"There is a big difference between exchanging specific data based on a targeted inquiry and allowing unlimited and uncontrollable access to all the data held on national databases by every other agency in the EU. Requests for data and information can already be routed through the Schengen Information System and national SIRENE bureaux and Europol, and spontaneous requests can be carried out under the Mutual Assistance Convention.

To put forward such a proposal without any indication of data protection rights for suspects or those simply held on "intelligence" files is quite irresponsible but not surprising - we have been waiting since 1998 for the Council or the Commission to come up with data protection rights under the "third pillar"".

See: European Commission proposes "free market" for law enforcement database access and
Statewatch "Scoreboard" and analysis on EU proposals have little or nothing to do with tackling terrorism: Statewatch Scoreboard (pdf)

The fight against terrorism

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"Within the area of freedom, security and justice, the efforts of the Member States must be directed towards not only their own security, but also that of the Union as a whole". (Presidency Memorandum)

i) Note from Presidency: Fight against terrorism, 12685/04 (pdf)

ii) Comment: Of interest is the proposal that assessments and reports compiled by SITCEN (EU Situation Centre - part of the emerging military structure) and Europol to the JHA Council should cover terrorism and internal security. Reports would be on:

"internal security and... activities of services in the areas of intelligence, security, investigation, border surveillance and crisis management".

Crisis management

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"Within the area of freedom, security and justice, efforts by the Member States to deal with cross-border crises must serve not only the national interest but also the interests of the other Member States. A crises coordination structure is needed to deal with the public order and security components of crisis management, complementing the crisis centres that already exist at EU level" (Presidency Memorandum)

Improving the functioning of Europol/Eurojust

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"Europol and Eurojust have a key role to play in the fight against serious cross-border crime and make an effective contribution to the efforts of the Member States’ national law enforcement agencies." (Presidency Memorandum)

i) Note from Presidency, 12687/04 (pdf)

Internal Security Committee

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"The coordination of operational activities by law enforcement agencies (police, border guards etc.) must be ensured by a standing committee." (Presidency Memorandum)

i) Note from Presidency, 12688/04 (pdf)

ii) Comment: The Presidency is proposing that, in advance of ratification of the EU Constitution, preparation be made for the establishment of the "Internal Security Committee" set out in Article 261 of the Constitution. These to include adopting rules of procedure, tasks, competencies and composition.

It further proposes that until this comes about there should be a six-monthly joint meeting of the chairs of the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA), Article 36 Committee and representatives of the Commission, Europol, the European Border Agency (EBA, yet to be formally set up), the Police Chiefs' Task Force (which has no legal status), the Counter-Terrorism Group and a working group on "internal crisis management" to be established.

Article 261 states:

"A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-247, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and Member States' national parliaments shall be kept informed of the proceedings"

The limits, remit, openness and accountability of this Committee have yet to be defined. See: The creation of an EU Interior Ministry - the maintenance of law and order, internal security and external borders

International family law

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"Citizens must be able to resolve disputes over issues such as maintenance obligations, inheritance rights and matrimonial property without extra obstacles in cases with cross border implications." (Presidency Memorandum)

Common European asylum system

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"The aim of the EU in the second phase of the common European asylum system is to establish a common policy on asylum, subsidiary and temporary protection." (Presidency Memorandum)

i) Note from Presidency, 12710/04 (pdf)

ii) Comments: The goal of a common policy on asylum, etc. is taken from the constitutional treaty, added to the goal of a Common European asylum system set out by Tampere I.

The idea of an asylum office is totally new: "the establishment of a European office in matters relating to the common European asylum system"

There is no reference to the goal of a "full and inclusive application of the Geneva Convention" as set out in Tampere I, or the commitment to the non-refoulement principle set out in the Constitutional treaty.

"It might also be possible in the second phase to establish a common system for processing applications from specific categories of asylum seekers, such as asylum seekers from certain countries of origin or those who have been intercepted at sea, and to spread among the Member States refugees and persons qualifying for subsidiary protection who have gained admission in that procedure. The European asylum office referred to above should play a coordinating role when the measures laid down in the Constitutional Treaty are applied. In the meantime, pilot projects could be launched by the Member States in association with the Commission and the UNHCR, co-financed with Community funds." (doc 12710/04)

This idea is wholly new. From the description it could be targeted on groups whose asylum applications are likely to be rejected (which is highly questionably) as inadmissible or unfounded and so not properly considered. These categories are also possibly the most likely groups to be removed for offshore processing (see the comments by various politicians about vessels intercepted at sea this summer) and plans for "safe countries of origin" (see: Statewatch Analysis: EU divided over list of "safe countries of origin").

To "spread" asylum-seekers among the member states, which is explicitly referred to here, is highly controversial. The idea is clearly to "spread" successful applicants, not just to come up with criteria for allocating responsibility for asylum seekers (as in the Dublin Convention). By the time of the decision the asylum seekers will already have settled into a particular member state, with children in school, etc and some links with friends, family and compatriots - this could be described as the UK's failed dispersion policy on an EU-wide scale.

What is not mentioned here is the idea of a "single procedure" set out in a Commission paper this summer, which would extend various EU rules applicable to asylum applications to those applying for subsidiary protection as well.

There is no reference to asylum being "a uniform status valid throughout the Union" (Tampere and Constitution wording) or to the Commission's planned proposal to allow refugees and persons with subsidiary protection to move between Member States (and presumably transfer their status) once they are long-term residents - which one would assume is a corollary of having a status "valid throughout the Union". Instead the policy is turned on its head to insist on forced movement between member states. Is this what they mean now by a status "valid throughout the Union"?

Improved access to durable solutions

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"Refugees should have access to protection and durable solutions as quickly as possible and as close as possible to their homes. The EU acknowledges the importance of contributing also outside the EU to a more effective international protection system." (Presidency Memorandum)

i) Note from Presidency, 12711/04 (pdf)

ii) Comments: The Presidency proposes "one of more" camps (euphemistically called "regional protection programmes") outside the EU to hold refugees. Refugees would be given "protection.. as close as possible to their homes" - which translated into everyday language will mean the "region of origin".

The reference to the Communication indicates that the idea is not to force external processing of people who have already reached the EU (the old 'Fantasy Island' idea), but the idea of external "processing" for those intending to head for the EU. Who this would include is unclear. Perhaps those intercepted at sea and/or transiting through the states in the "region" or those from "safe countries of origin"? (see: Statewatch Analysis: EU divided over list of "safe countries of origin").

The Presidency proposes that this should be funded by the EU's proposed AENEAS funding programme (entitled: "establishing a programme for financial and technical assistance to third countries in the areas of migration and asylum") and "co-financed by interested Member States". The AENEAS is virtually nothing to do with helping "partners" (third world countries) it is rather to support "third countries in order to support their efforts to improve the management of migratory flows" (see: AENEAS, pdf).

See also: Statewatch analysis: “Improving access to durable solutions”: doublespeak and the dismantling of refugee protection in the EU (pdf)

Solidarity mechanism for border control

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"In the short term further details of a mechanism that reflects solidarity between Member States in the field of external border management need to be worked out." (Presidency Memorandum)

Partnership with third countries and migration management

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"To establish closer partnerships with third countries. To strengthen EU migration management, including legal migration and return policy." (Presidency Memorandum)

i) Note from Presidency, 12715/04 (pdf)

ii) Comments: This "partnership" proposal with third world countries is to be accompanied by another idea, that has been floating around but never formally put forward, for the EU to adopt "common minimum standards for return procedures" including:

"removals carried out in connection with threats to public order and security"

Moreover a "common policy" on the "return to specific countries and regions must be adopted". Where readmission agreements are in place - through the linking of continued EU aid and trade - refugees will be sent back to where they came from. Where there is no readmission agreement then they will be sent to the "region of origin".

See: Statewatch analysis: “Improving access to durable solutions”: doublespeak and the dismantling of refugee protection in the EU (pdf)

A common visa policy

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"-To combat illegal immigration and terrorism by making full use of new methods for verifying personal identity.
-To create an effective common visa policy by strengthening consular cooperation and further harmonising the issuing of visas.
-To improve the coordination of visa policy in relations with third countries." (Presidency Memorandum)