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Council of the EU: LIMITE documents on human rights, internal security, visas and asylum, EU-Interpol agreement, travel surveillance and "bio-secure borders"

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21 May 2021

A host of important LIMITE documents from the Council of the EU: Accession to the European Convention on Human Rights; draft conclusions on the impact of COVID-19 on internal security; proposals on the governance of Europol's 'Innovation Hub' for internal security technologies; a discusssion paper on visas and asylum applications; draft Council Decision authorising negotiations on an agreement between the EU and Interpol; draft conclusions on the surveillance of travel via Passenger Name Record (PNR) data; and the extension of PNR to maritime transport.

Human rights: EU accession to the ECHR and new legislation on the EU Fundamental Rights Agency

NOTE from: Presidency: Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) - State of play (8662/21, 18 May 2021, pdf):

"6. In order to facilitate the discussions in the 47+1 Group, the Chair of that group prepared a steering document identifying the problems identified in Opinion 2/13 of the CJEU and structuring them in groups (‘baskets’): EU-specific mechanisms of the procedure before the ECtHR (Basket 1), Operation of inter-party-applications (Article 33 of the Convention) and of references for an advisory opinion (Protocol no. 16) in relation to EU Member States (Basket 2), the principle of mutual trust between the EU Member States (Basket 3), and EU acts in the area of the Common Foreign and Security Policy (Basket 4). The paper also identified the interlinkage between the Convention and the EU Charter of Fundamental Rights, in particular, Articles 53 of both instruments, as an issue for discussion. However, delegations from non-EU Member States have raised further issues to be addressed, notably concerning Articles 6, 7 and 8 of the draft accession agreement and its appendices.

7. At this point, there has been concrete progress on Basket 1, in particular, as concerns the clarification of the effects of reservations made under Article 57 ECHR, and on the issue of the interlinkage between Article 53 of the Convention and Article 53 of the Charter."

NOTE from: Presidency: Draft compromise on the proposal for a Council Regulation amending Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental Rights (8509/21, 7 May 2021, pdf)

"Delegations will find in the Annex to this Note the draft compromise on the proposal for a Council Regulation amending Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental Rights."

Internal security: COVID-19 and Europol's 'Innovation Hub'

'I/A' ITEM NOTE from: General Secretariat: Draft Council Conclusions on the impact of the COVID-19 pandemic on internal security: threats, trends, resilience and lessons learned for EU law enforcementon [sic] − Approval (8651/21, 19 May 2021, pdf):

"From the law enforcement point of view, avoiding risks to public order and preventing the exploitation of the pandemic crises by serious and organised crime is of primary importance: sharing relevant, real-time information, in a secure environment, was identified as a key issue while facing the emergency. Bearing in mind the importance of cross-border cooperation in the EU and Schengen Area, the lessons learned from the following endeavours should be highlighted, with a view to increasing the resilience of EU law enforcement..."

And see: the previous version (8014/2/21 REV 2, pdf).

Text included in the initial version of the conclusions that called for Europol to exchange information with national authorities "regarding the prevention of violent demonstrations and civil unrest" has now been removed from the text - although this does not mean that the underlying intention has disappeared.

NOTE from: Presidency: The EU Innovation Hub for internal security - governance (8517/21, 12 May 2021, pdf)

The 'Innovation Hub for internal security' is to be based at Europol and has no legal basis (although negotiations on revisions to the Europol Regulation would introduce a post-facto legal basis). The document makes clear that the governance of the 'Hub' will be utterly democratically-unaccountable:

"In order to ensure a strong representation of the Member States, but also to guarantee that as many Member States as possible become involved in the governance of the Hub, the Steering Group will be jointly chaired by a Member State representative, nominated by COSI for a period of one and a half (1,5) years, and a representative of the European Commission (DG HOME). In addition to the co-chair, COSI will also nominate five (5) members of the Steering Group for the same period (one and a half (1,5) years) to represent the national innovation labs participating in the Hub...

On 15 May 2020 COSI concluded that the Steering Group will provide direction and exercise responsibility for the work of the Hub, while providing the necessary flexibility to foster innovation in a needs-driven way. It was outlined that the Steering group will meet at least twice a year. All members of the Steering Group should have proven expertise and professional experience on innovation in the area of internal security.

The Presidency urges swift start of the procedure for the nomination of the co-chair and the Steering Group members."

Visas and asylum: discussion paper

NOTE from: Presidency: Visa issues and asylum applications (8477/21, 10 May 2021, pdf):

"The utility of data is now measured by the extent to which it can be linked to other data in order to show its potential, by indicating e.g. how many people first applied for a visa and then applied for asylum. Until interoperability of migration-related databases is fully achieved at EU level, the exchange of information between Member States regarding new visa trends could clarify the following points:

1. 1. Despite the travel restrictions, the number of applications lodged by citizens of visa-required countries in 2020 approached almost 80 % of pre-pandemic figures. In order to better understand this phenomenon, we would be grateful if you could give more details on these figures.

• • What is the percentage of migrants lodging an asylum application during the pandemic:
    • Having a valid visa at the time of application?
    • Having an expired visa at the time of application?
    • Having entered illegally?
  • Do you see any patterns in the applications that need specific consideration?

1. 2. The number of asylum applications by UAMs, mainly from visa-required countries, is slightly increasing:

• • Do you see any patterns in the applications that need specific consideration?"

Interpol: EU preparing to open negotiations for an agreement

NOTE from: Presidency: Recommendation for a COUNCIL DECISION authorising the opening of negotiations for a cooperation agreement between the European Union and the International Criminal Police Organisation (ICPO-INTERPOL) (8565/21, 17 May 2021, pdf)

The agreement is necessitated in part due to the EU's 'interoperability' plan, which interconnects a number of large-scale databases and enables automated queries from one system to another - including from EU to Interpol databases.

Interpol was not happy about this and wrote to the Council when the interoperability texts were being negotiated to demand a formal agreement. That is now in the works.

The document includes the current draft text of the Decision authorising the Commission to open negotiations with Interpol, and the current draft negotiating directives.

Travel surveillance and "bio-secure borders": Conclusions on PNR, and PNR to be extended to maritime transport and may include vaccination and other health data

NOTE from: Presidency: Passenger name record (PNR) - Draft Council Conclusions (7376/2/21 REV 2, 11 May 2021, pdf)

"19. NOTES that, while complying with Opinion 1/15 of the Court of Justice of the EU, in order to use PNR data to their full potential and in pursuit of the purposes of the international exchange of PNR data, their adequate retention is key,

20. CALLS ON the Commission to pursue a consistent and effective approach regarding the transfer of PNR data to third countries for the purpose of combating terrorism and serious crime, building on the ICAO SARPs, and in line with the relevant requirements established under Union law."

This may not be so simple - a host of pending cases are challenging the very substance of the EU's Passenger Name Record Directive: C-817/19, C-148/20, C-215/20 and C-222/20.

NOTE from: General Secretariat: World Customs Organisation 1st Meeting of the Passenger Facilitation and Control Working Group - Preparation of the position (7419/21, 26 March 2021, pdf)

The document was produced in advanced of a meeting of the World Customs Organisation's Passenger Facilitation and Control Working Group, which is working out how to extend the use of PNR for travel surveillance and profiling to cruise ships:

"Following the Terms of Reference, the Working Group will commence by initiating work to deliver the recommendations outlined in the Cruise Ship Final Report (recommendation #1 to develop a Compendium of Best Practices and recommendation #2 to establish an API and PNR Data standard for cruise ships). In this session, the Group is invited to take note of the results of WCO maritime passenger survey related to recommendation #2 and provide guidance on the way forward.

(...)

Common position

The EU and its Member States take note of the presentations and of the discussions on the possible extension of PNR and API collection to maritime sector." [emphasis in original]

A discussion on "bio-secure borders" was also on the cards, and appeared to be considering the extension of PNR and/or API (Advance Passenger Information) data standards to include data on whether an individual had received a COVID vaccination or test (something that has also been discussed in the Council):

"V. Bio-secure Borders (Doc: Green Paper bio secure borders)

The Working Group is invited to discuss the Customs role to support a coordinated and harmonised resumption of international travel in a bio-secure way to boost our domestic and global economic recoveries through travel and tourism.

The Group is also invited to discuss cooperating with other government agencies to include the passenger data related to vaccine status, vaccination type and date, COVID test status, travel history with the minimum number of fields for maritime passengers and interoperability with other modes of transport to the greatest extent possible (air, road, rail), with consideration of the existing purpose and use limitation of API and PNR and their definitions to include terrorism, serious transnational crime and pandemic.

1. 1. a) Discussion on defining a [human] bio-secure border and how Customs supports resumption of international travel
   2. b) Presentations on international efforts to support bio-secure borders

Presentation from World Health Organization (WHO) (TBC)

Presentation from International Civil Aviation Organization (ICAO)

Presentation from International Air Transport Association (IATA)

1. 1. c) Discussion on how Customs can support establishment of international standards for international bio-secure travel in coordination with partners
   2. d) Guiding Principles for Customs to Develop Data Standards for a Bio-secure Border

Common position

The EU and its Member States take note of the presentations and of the discussion on passenger data and bio-secure travel." [emphasis in original]