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EU: Security and migration proposals dominate Juncker's 'State of the Union' announcements - full documentation

14 September 2018

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Security and migration proposals dominate Juncker's 'State of the Union' announcements - full documentation
14.9.18
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A reinforced Frontex, a new European Asylum Agency, more measures against online terrorist content, a strengthened European Public Prosecutor's Office, lowering the standards in the Returns Directive and changes to decision-making in foreign policy were just some of the security and migration-related proposals announced in the 'State of the Union' speech given by European Commission President, Jean-Claude Juncker, on 12 September.

A number of the proposals have already drawn criticism. Professor Steve Peers, an expert in EU justice and home affairs (JHA) law, has noted that the proposal on returns is "not evidence-based policy making," as "there is no proper impact assessment" to substantiate the necessity of the reforms, which will lead to more people being detained in the hope of removing them from the EU.

Similarly, the civil society organisations EDRi and Access Nowhave condemned the proposed Regulation on deleting online terrorist content as an "election tactic" in view of the upcoming European Parliament elections in May 2019, saying that it "fails to provide any meaningful evidence on how this regulation will prevent the dissemination of alleged terrorist content online while it puts fundamental rights such as freedom of expression and privacy at risk."

However, there is clearly significant political intent behind the proposals - according to Juncker, the migration proposals will provide "lasting solidarity" between EU Member States "today and forever more." Following up on Juncker's announcements with a speech on 13 September, Dimitris Avramopoulos, the Commissioner for Home Affairs and Migration, claimed that the new proposals are "the final pieces of the migration puzzle."

The Commission is also proposing:

  • to expand the mandate of the European Public Prosecutor's Office so that it can prosecute cross-border terrorism offences (its current mandate concerns offences involving the EU budget);
  • to introduce further measures to "get terrorist content off the web within one hour" that will delegate further powers and discretion to private companies;
  • to introduce new measures "to further strengthen the supervision of EU financial institutions and to better address money-laundering and terrorist financing threats";
  • to introduce 'Qualified Majority Voting' in decision-making on the EU's Common Foreign and Security Policy (CFSP), where Member States must current reach decisions unanimously;
  • new measures to ensure free and fair European elections and to better protect personal data in the context of European Parliament elections.

Juncker's full speech can be read here: State of the Union 2018: The hour of European sovereignty (pdf)

A brief outline of all the proposals on security and migration is provided below.

Proposals on migration

The Commission has provided its own summary of the migration-related proposals in a press release: Commission proposes last elements needed for compromise on migration and border reform (pdf), while the speech given by Avramopoulos can be read here: Remarks of Commissioner Avramopoulos on new measures for stronger EU borders and solidarity on migration (pdf)

Frontex

A Regulation has been proposed that would massively reinforce the European Border and Coast Guard (better-known as Frontex).

The Commission has for some time been promoting the idea of giving the agency a "standing corps" of 10,000 border guards by 2027 - but the new proposal brings that date forward to 2020.

It would also give the agency's officers executive powers, provide more funding for Frontex in general, along with more powers to acquire and operate its own equipment (for example, boats and helicopters), and give new possibilities to identify irregular migrants, prepare return decisions and to launch operations outside the EU, amongst other things.

For more detail, see (pdfs):

European asylum agency

The new proposal for a European Union Agency for Asylum would give the agency new tasks, beyond those already proposed in measures announced in 2016 (see below). Under the new proposals, the agency would be able to give Member States' authorities "greater technical and operational assistance" and would be able to undertake all administrative procedures in requests for international protection.

A proposal to transform the European Asylum Support Office (EASO) into a European Union Agency for Asylum was put forward by the Commission in May 2016, and an agreement was reached on the text by the Parliament and Council in June 2017.

Nevertheless, the Commission considers it necessary to put forward further proposals regarding the asylum agency, and its new amended proposal "should not in any further way delay the adoption of the Regulation on the European Union Agency for Asylum," says the explanatory memorandum accompanying the new text.

See (pdfs):

Returns Directive

The issue of returns has become something of an obsession for EU and Member State politicians and planners in recent years, and the new proposals to amend the 2008 Returns Directive represent the culmination of recent attempts to lower standards by more informal means. For example, last year the Commission published an Action Plan on a more effective returns policy and a Recommendation on making returns more effective, both of which were well-received by the Member States.

According to the Commission's press release, the new Directive "will contribute to speeding up return procedures, better prevent absconding and irregular secondary movements and increase effective returns in full respect of fundamental rights."

This final point is doubtful. As Steve Peers concludes in his analysis:

"This proposal is entirely concerned with facilitating the expulsion of irregular migrants, and detaining them to that end – in addition to imposing entry bans to make sure they do not return. The narrower possibilities to obtain a period of voluntary departure will mean surprise knocks at the door, detention time and forced removal for more irregular migrants. More legal challenges will be fast-tracked, with the time limits in this proposal arguably below the standards set by CJEU case law (see the Diouf judgment). More migrants will be detained, and the Member States with the most generous approach to detention time limits will have to be more stringent."

Documentation (pdfs):

Legal migration

The Commission has also published a Communication on legal migration: Enhancing legal pathways to Europe: an indispensable part of a balanced and comprehensive migration policy (COM(2018) 635 final), which notes that "common efforts tackling irregular migration flows have led to solid progress. The same political determination is also needed when it comes to developing legal pathways to Europe, which requires a stepping up of efforts."

Proposals on Common Foreign and Security Policy

One of the Commission's proposals concerns the way decisions are made by the Member States on the EU's Common Foreign and Security Policy. Currently, Member States must agree unanimously on any decision - but the Commission wants to change this and introduce Qualified Majority Voting (QMV), by which a majority is 55% of Member States that represent at least 65% of the EU population

The changes would be made in three particular areas: EU positions on human rights in multilateral organisations, such as the United Nations; the adoption and amendment of EU sanctions regimes; and on civilian Common Security and Defence Policy (CSDP) missions.

On human rights positions, the Commission's Communication states that the changes "will enable more efficient and timely EU action." Regarding sanctions, the changes would increase "the ability of the EU to act decisively in its geopolitical interest." On civilian CSDP missions, the Communication notes that QMV would make it possible for the EU "to deploy its toolbox quickly to respond and engage in crisis or post-crisis environments... As the EU seeks to export stability to its neighbourhood, the number of civilian missions is likely to increase."

The press release argues that "the prospect of a vote by qualified majority is a powerful catalyst to engage Member States in building effective consensus and achieving unity." It may also, of course, make it easier for some Member States to assert their interests over others.

Documentation (pdfs)

Proposals on security

European Public Prosecutor's Office

The European Public Prosecutor's Office (EPPO) was agreed upon in November 2017 and so far 20 EU Member States have signed up to participate. It is expected to start operations from sometime in 2020 or 2021 and currently has a mandate "for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the Union" (see Article 4 of the Regulation).

The Commission is now proposing to extend that mandate by giving the EPPO the powers for "investigating, prosecuting and... bringing to judgement cross-border terrorist crimes." This would require amending the Treaty on the Functioning of the European Union (TFEU), for which purpose the Commission has published a Draft Council Decision. The Coommunication argues that:

"The threat of terrorism remains high and continues to evolve, necessitating an even stronger response from the European Union. Enhancing the capacity at Union level to investigate and prosecute terrorist crimes and bring the perpetrators to judgement is part of the comprehensive European response to terrorist threats."

Documentation (pdfs)

Online terrorist content

Another measure is a proposal for a Regulation that contains "new rules to get terrorist content off the web within one hour," according to the Commission's press release.

EDRi and Access Now summarise the main points of the proposed Regulation as follows:

    • "First, it creates orders issued by (undefined) national authorities to remove or disable access to illegal terrorist content within an hour.
    • Second, competent authorities can choose to make referrals of terrorist-related potential breaches of companies’ terms of service that would be subject to the voluntary consideration of the companies themselves.
    • Third, it legislates on (undefined) proactive measures that can lead to an authority requesting a general monitoring obligation.

This means that for the first time, the Commission is proposing the possibility of an explicit derogation from Article 15 of the e-commerce Directive which prevents governments from requiring internet companies to monitor everything we say and publish online."

The two organisations have criticised the proposals, noting that the EU already has "a pile of existing tools and expired implementation deadlines" that the Member States have failed to respect, yet the Commission has nevertheless "proposed yet more ill-defined measures."

Documentation (pdfs)

Anti-money laundering and terrorist financing measures

A proposal on further anti-money laundering measures has also been published. The Commission states in its Communication that:

"A strong and credible system to detect and fight money-laundering and terrorist financing is an essential part of this framework and a well-functioning Banking and Capital Markets Unions. While the current system has been significantly enhanced in recent years, rapid
legislative and non-legislative actions are needed in order to address a number of identified shortcomings...

Despite [the EU's] strengthened legislative framework, several recent cases of money laundering in European banks have given rise to concerns that gaps remain in the Union’s supervisory framework."

Documentation (pdfs)

Measures on elections

Two of the measures published by the Commission relate to elections, and in particular elections to the European Parliament, the next round of which will take place in May 2019.

The first is guidance on how the new EU data protection rules should be applied in the context of elections, whether at national or European level, given the increasing use of targeted advertising and campaigning based on the processing of personal data. The Commission notes: "The Cambridge Analytica revelations demonstrate the risk modern technologies can pose to the electoral process."

The second is:

"a set of concrete measures. The Commission is outlining today the potential threats to the elections and proposing solutions for how national governments and authorities, political parties, the media and digital platforms could address them."

Wrapped up in this are the guidance on data protection noted above, as well as a forthcoming Code of Practice on transparency and restrictions in online targeted advertising, methods for exchange of "best practice" on organising elections, the establishment of a European Cybersecurity Industrial, Technology and Research Competence Centre and an associated Network of National Coordination Centres and a proposal to introduce "financial penalties of 5% of the annual budget of the European party or political foundation concerned if they infringe the data protection rules in an attempt to influence the outcome of elections to the European Parliament."

Documentation (pdfs)

Further reading

EU to shore up borders, returns and migrant detentions (EUobserver, link)

The core of Juncker’s State of the Union speech: A federal border police (EurActiv, link)

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