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EU: JHA Council, 7-8 October: documents on EU-USA e-evidence negotiations; EU accession to the ECHR; right-wing extremism; and problems for plans to interconnect policing and migration databases

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07 October 2019

The Justice and Home Affairs Council is meeting in Luxembourg on 7 and 8 October. Issues under discussion include e-evidence negotiations between the EU and the USA; EU accession to the European Convention on Human Rights; right-wing extremism and terrorism; and the implementation of the EU's plans to interconnect its migration and policing databases. Council documents published here indicate that this latter project is running into trouble.

Agendas and information

Final Press release: 7 and 8 October (pdf)

EU: Justice and Home Affairs Council, 7-8 October, Luxembourg: Background Note (pdf)

List of 'A' items - legislative deliberations (pdf)

List of 'A' items - non-legislative activities (pdf)

Provisional agenda (pdf)

Issues under discussion

Amongst the documents to be discussed under "non-legislative activities" are the following:

e-evidence

Ministers will discuss the negotiations between the EU and USA for an agreement on cross-border access to e-evidence. Discussions have begun even though the EU's own legal regime in this area is still under negotiation.

The first round of negotiations between the EU and USA took place in Brussels at the end of September: see the Agenda (12523/19, LIMITE, pdf) and: Report from the Commission on the opening of negotiations in view of an agreement on cross-border access to electronic evidence for judicial cooperation in criminal matters (12524/19, LIMITE, pdf)

EPPO: Setting up of the European Public Prosecutor's Office

"State of play" document (12507/19, LIMITE, 27 September 2019, pdf):

"This document presents an update on the preparatory steps taken by the Commission in relation to the establishment process of the EPPO, as provided for by the EPPO Regulation, highlighting the progress made since June 2019."

EU Accession to the ECHR: supplementary negotiating directives

Ministers are due to adopt the supplementary negotiating directives contained in a RESTRICTED document (12585/19). Last month Statewatch published a preceding document (12349/19, RESTRICTED, pdf) outlining the lengthy process so far and containing a "synthetic overview of the required amendments to the negotiated instruments".

Assessment of the Code of Conduct on Hate Speech on line

The Commission has provided an update for ministers (12522/19, pdf):

"In summary, the Code of conduct has contributed to achieve quick progress, including in particular on the swift review and removal of hate speech content (28% of content removed in 2016 vs. 72% in 2019; 40% of notices reviewed within 24h in 2016, 89% in 2019). It has increased trust and cooperation between IT Companies, civil society organisations and Member States authorities in the form of a structured process of mutual learning and exchange of knowledge. This work is complementary to the effective enforcement of existing legislation (Council Framework Decision 2008/913/JHA) prohibiting racist and xenophobic hate crime and hate speech and the efforts needed by competent national authorities to investigate and prosecute hate motivated offences, both offline and online."

Counter-terrorism: Right-wing violent extremism and terrorism

A note from the Presidency (12494/19, LIMITE, pdf) asks ministers to provide their views on the way forward and to ensure follow-up on agreed work, such as creating a "better situational overview of right-wing violent extremism and terrorism," and "addressing the spread of unlawful extremist content online and offline irrespective of the underlying motive".

This follows on from papers issued by the EU Counter-Terrorism Coordinator in September.

New technologies and internal security

As highlighted previously by Statewatch, the emergence of new technologies presents a whole new era of demands from law enforcement agencies for access to data and information.

Migration: state of play

A document issued by the Council Presidency (11860/19, LIMITE, pdf) gives an overview of the situation in different parts of the Mediterranean to serve as the basis for the "lunch discussion".

Elsewhere, the Presidency has sought the input of national delegations in the High-Level Working Group on Asylum and Migration regarding: Evidence-based and forward-looking migration policies (12608/19, LIMITE, pdf):

"The Presidency does not only want to discuss the added value of linking migration early warning systems, forecasts and scenarios to policy-making, but also intends to encourage more forward-looking discussions in the forthcoming HLWG meetings. Discussions in the HLWG should be based on evidence provided especially by EU institutions and agencies and should focus on the issues arising from this evidence. Reciprocally, discussions in the HLWG should guide the focus of EU institutions and agencies in their migration-related analyses and actions."

Implementation of Interoperability

Earlier this year the two Regulations on "interoperability of information systems" came into force (2019/817 and 2019/818), setting the scene for the interconnection of the EU's existing justice and home affairs databases and the creation of new systems - including the enormous Common Identity Repository (CIR), which will hold the biometric and biographic data of up to 300 million non-EU nationals.

However, putting interoperability into practice looks likely to prove a challenge. Reports from Germany indicate that the Federal Ministry of the Interior "doubts that the project can be implemented by 2023 as originally planned," due to "resource bottlenecks and overloading of the authorities involved," as well as problems in recruiting specialist staff.

A document issued by the Commission (12429/19, LIMITE, pdf) seem to back up this point. The report, put together following a "tour of capitals", states that:

"Coordinating and cooperating across all the different national authorities involved in projects, such as those dealing with EES/VIS/ETIAS at operational level, presents a challenge."

Furthermore:

"Procurement and resources present challenges. In certain cases, procurement procedures in view of EES preparations are not yet launched. In terms of resources, for both budget and personnel, we learned that, in some cases, there was not yet a secured budget allocation, and sometimes not even an identification of funding needs."

The note argues for high-level coordination and direction, with relevant national bodies reporting directly to ministers and, in turn, various methods of coordination at EU level.

Equally, in a seperate note issued by the Council Presidency (11847/19, LIMITE, pdf):

"the Presidency has concluded that a holistic national coordination structure is required in every Member State. This structure should bring together operational users and technical experts developing IT systems. It is also essential that all national input is collected and conveyed to European level, where the central development will take place. Political guidance and support is required in every Member State to ensure that national coordination is established and has sufficient human and financial resources."

See also: Statewatch Observatory: Creation of a centralised Justice & Home Affairs database is "a point of no return"