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Statewatch News Online: Stockholm Programme - changes in the draft document

28 March 2012

DRAFT STOCKHOLM PROGRAMME

These are the key changes between the drafts of 16 October and 23 November 2009

1. Introduction

There are new paragraphs at the end of part 1 explaining the impact of the Lisbon Treaty on JHA matters, including an emphasis on the possibility of groups of Member States to make legislative proposals

1.1

'Europe that protects' section - a reference to Art 222 TFEU, the clause on solidarity in emergencies, has been added.

the section on 'access to Europe' has been added

the section on responsibility regarding immigration, etc. has been fleshed out somewhat

1.2.3.

This section now includes references to the principles of proportionality and subsidiarity, plus the possible impact of JHA measures on internal market freedoms

1.2.10

The timetable for the transformation of previous legal acts (ie third pillar acts) is now to form part of the Commission's action plan for implementation of this programme. It is now stated that the action plan should be proposed 'promptly', and be adopted by the Council.

2.1

Fundamental rights section - paras have been added regarding opposition to the death penalty, war crimes, and a possible legal act to criminalize denials of mass killings motivated by political grounds (cf the Soviet era), on which the Commission should report in 2010. It should be noted that a 'legal base' for such a measure might be difficult to find.

2.2

Free movement - a new para on the further enlargement of the Schengen area is added

A further para is added regarding 'abuse' of free movement rights

2.3.2

The text now calls for an EU policy regarding rights of the child, with some concrete suggestions

2.3.3.

Vulnerable groups are now defined in more detail, and Member States are encouraged to ratify the Hague Convention on the protection of vulnerable adults

2.3.4

Crime victims - specific references to terrorist victims are added, and the commitments here are more concrete, including revised legislation, consolidating 2 existing legal acts, and offering support to victims

2.4

suspects' rights - the text now encourages the Commission to examine further issues beyond the roadmap on this issue

2.5

Privacy - some language is added regarding promoting accession to the Council of Europe Convention, plus application of the principles to the private sector. It now refers to the 'necessity' of further personal data exchange, rather than the 'demand' for it. Some further data protection principles are referred to. There is a broader reference to data protection agreements with 3rd states for law enforcement purposes.

2.6

There is lots of new language going beyond merely the issue of EP elections, including a new reference to the EU citizens' initiative, which 'should be realized rapidly'.

A new para invites the Commission to 'examine how best to ensure transparency of decision-making, access to documents and good administration of justice in the light of the new opportunities opened up by the Lisbon Treaty and to make appropriate proposals to that end'.

A date for the Commission's report on a possible common EP election day is specified (Dec 2012).

2.7

There is now a specific request to the Commission for legislation regarding diplomatic and consular protection for EU citizens.


3. A reference to harmonizing substantive criminal law now forms part of the principle of encouraging mutual trust.

3.1.1.

As for criminal law, there is now an express reference to the principle of proportionality (cf the issue of European Arrest Warrants for the 'theft of a piglet'). However, the references to some specific issues which arise frequently during mutual recognition negotiations have been dropped.

A list of further measures besides a new act on gathering evidence is added: measures on admissibility of evidence, cross-border investigative measures, obtaining information without coercion, and recognition of penalties for road traffic offences.

Eurojust is now referred to here (rather than later on in the text); the latest version is much more encouraging about enhancing Eurojust's powers in the near future and even refers to the possible adoption of measures on the European Public Prosecutor - a 'taboo' issue left out of the Hague Programme and the Commission communication on the Stockholm programme.

3.1.2.

Civil law - the latest version gives some examples of areas that could be covered by new conflict of law rules. The latest text is more qualified about consolidation of the law in this area.

3.2.2

Networks - this now includes detailed reference to a number of networks, rather than just one network in the previous draft

3.2.6

Detention - this section is wholly new compared to the previous draft

3.3.1

A more explicit reference is made to possible new legislation to harmonize substantive criminal law further.

The possibility of harmonizing all offences concerned by the abolition of dual criminality is now discussed more concretely. It should be noted that there is no legal base for EU legislation regarding some of the relevant crimes, unless the EU's powers over substantive criminal law are extended.

3.3.2

The possibility of a standard set of procedural rules in relation to family law judgments is now mentioned.

3.4.2.

This draft adds a specific reference to possible 'common rules determining the law applicable to matters of company law, rules on insolvency for banks and transfer of claims', as well as contract law, and an invitation to the Commission to consider making proposals

3.5.1

external civil law - the final conclusion here now refers to developing an external civil law strategy, instead of adopting a legal act to control the recognition of non-EU judgments

3.5.2

external criminal law - a new para on encouraging the multilateral framework is included now

references to the death penalty and war crimes are again added here.

4.1

A reference to a possible 'Internal security fund' has been added.


4.2.2

A reference is now added to a 'European Information Exchange Model' as defined further here.

New paras at the end of this section endorse the proposal (made already early in 2009) for an IT agency to manage the SIS, VIS, etc, and also call on the Commission to make a proposal for an EU PNR system (originally proposed in 2007, but not yet agreed)

4.2.3

New final paras here refer to - a European police records system (report due in 2012); the further use of existing databases for law enforcement purposes; and the exchange of information on 'travelling violent offenders'

4.3.1

There are new references here to joint investigation teams, and to Europol

There are new points referring to Europol obtaining national police information; measures on police operations, such as undercover officers; scrutiny of Europol by national parliaments and the EP; measures on cooperation between EU agencies; common forensic standards; and measures on cooperation between EU foreign policy missions and Europol.

4.3.2

The date to propose a new crime prevention body is moved from 2012 to 2013.

4.4.3

A number of additional concrete measures have been added to the list of measures to be taken as regards offences against children.

4.4.4

Cyber-crime - a new point states that the EU should 'clarify the rules on jurisdiction and the legal framework applicable to cyberspace within the Union, including how to obtain evidence in order to promote cross-border investigations'.

4.4.5

organized crime - now includes a point on EU accession to 'GRECO', the Council of Europe anti-corruption body, the identification of the real owners of assets and a database on suspicious financial transactions. The Council and EP are now to 'consider', rather than 'adopt' the proposal on enforcement of intellectual property rights by means of criminal law.

6 (should read 5) - access to Europe (previously part 6.4)

6.1 There are new additions to the point about a proposal in 2010 relating to Frontex - these reflect the conclusions of the EU summit on this issue on 23 October. There is also a new point concerning the long-term future of Frontex, including the creation of an EU border guard, a point about 'mixed flows' of migrants (moved here from the asylum section), and Schengen evaluation

The date for completing Eurosur (2013) has been dropped.

The deadline to make an entry-exit system operational (2015) has been dropped, and a reference to automated border control has been added.

6.2 visa policy - a point about ensuring visa reciprocity has been added.


6 (ex-part 5) - migration policy

The opening paragraph contains an extra (third) sentence qualifying its support for migration somewhat. A new second paragraph addresses migration control.

6.1.3

two new indents are added - encouragement to keep implementing the existing policy plan on labour migration (ie there are pending proposals and new proposals planned as part of the plan); and examination of consolidating the law, including possibly covering further categories of workers by EU legislation

6.1.4

It is clearer now that the programme also aims at codifying EU on irregular migration, not just on legal migration; the text does not however refer to an 'Immigration Code' as such any longer

The support for revising the family reunion directive is rather more qualified.

6.1.7

The revised version puts greater stress on sending unaccompanied minors back to their country of origin.

6.2.1

There is now a reference to a report on the legal and practical implications of EU accession to the Geneva Convention on refugee status.

There are new references to Eurodac as a measure to support the entire Common European Asylum System; a reference to a report on joint processing of asylum applications has been reinserted; and the commitment to a study on the mutual recognition of asylum decisions has been watered down

6.2.3.

There is now a reference to encouraging wider ratification of the Geneva Convention.

The reference to selecting refugees from 'mixed flows' of migrants has been dropped, but a reference to new forms of protection on the territory of third states has been added

7.2

There are some additional points made as regards the external Human Rights Action Plan.

7.6

There are further references to a readmission treaty with Turkey.

A reference has been added to completing readmission negotiations with Algeria.

There is now a reference to immigration discussions with India and China.

Overall

This latest draft is on the whole more ambitious than the last one, in particular in relation to police cooperation and criminal law (in respect of mutual recognition and criminal procedure in particular, but also Eurojust and the possibility of a European public prosecutor). It is more far-reaching in scope, as it has been extended to cover issues such as the citizens' initiative and access to documents as well as openness and transparency more generally. There are also some significant additional points in relation to asylum, the EU's agency for coordinating JHA databases, diplomatic and consular protection of EU citizens, and rights of the child. On the other hand, some of the language concerning future legislation on immigration on asylum has been qualified, but fairly modestly.

For full documentation on the Stockholm Programme see: Observatory on the Stockholm Programme