House of Lords - European Union

Select Committee on European Union Written Evidence

Memorandum by the Centre for European Policy Studies (CEPS)

The Justice and Home Affairs Unit of CEPS welcomes the opportunity to contribute to the inquiry by the European Union Select Committee of the House of Lords into the European Commission's Annual Policy Strategy for 2008.[1] It is both our honour and pleasure. Founded in 1983, the Centre for European Policy Studies (CEPS) is among the most experienced and authoritative think tanks operating in the European Union today. Its research staff of some 30 to 35 specialists in all aspects of EU affairs is dedicated to producing sound policy research leading to constructive solutions to the challenges facing Europe today.

This submission addresses two main areas covered by the Policy Strategy which are intrinsically related to our work in the area of "Freedom, Security and Justice":

I. Fighting Organised Crime and Terrorism; and

II. Freedom of Movement and Managing the EU's External Borders.

I. FIGHTING ORGANISED CRIME AND TERRORISM: SECURITY VS LIBERTY IN THE EU?

1. One hears and reads with growing frequency the observation that the European Area of Freedom, Security and Justice is becoming increasingly centred on security to the detriment of freedom and justice. Although we concede that the mere repetition of an idea does not render it more true, we maintain that the principles of freedom, respect for civil liberties and fundamental rights as well as the rule of law have all too often been disregarded by recent national and EU policies. The growing number of court decisions at national, supranational and international level that have annulled or restricted new security-related legislation or executive acts provide sufficient empirical evidence to support the assumption. And, in our view, the European Commission's Annual Policy Strategy for 2008 is yet another good example.

2. Without intending to be too much of a nit-picker, in our opinion, the choice of words already hints at the underlying notion behind the Commission's agenda. When formulated in 2004 at the beginning of the Barroso Commission's mandate, the strategic objectives had been set as "Prosperity, Solidarity, Security", a triad that left no apparent place for "Freedom".[2] In the Policy Strategy for 2008, at least the term reappears, albeit squeezed next to security and without being thought important enough to merit a chapter of its own. Freedom, in our view, should actually be mentioned in the first place, given the fact that the EU treaties define a common Area of Freedom, Security and Justice (AFSJ) and not the other way round. Furthermore, the freedom dimension needs to constitute the premise upon which an AFSJ is constructed, developed and further promoted.

3. But it is not the mere positioning of words that gives rise to concern, but some of the envisaged key actions that stand behind these words. Presenting the 2008 Policy Strategy in the European Parliament plenary, Vice President Margot Wallström stated:

4. It is astonishing to see freedom promoted by a "surveillance system" and a "centralised database of fingerprints". In particular, it is this last proposal—the centralised database of fingerprints—that has already sparked widespread concern.[4] This concern is triggered not only by its content, but also by the fact that such a remarkable policy aim has been simply listed as one bullet point (out of three) on page 12 of the Policy Strategy without being further elaborated in the descriptive part of the text. As MEP Baroness Sarah Ludford commented:

5. Another key action envisaged for 2008 and mentioned under the headline "Fighting organised crime and terrorism" is the Commission's aim to strengthen the cooperation between member states through EUROJUST in investigating and prosecuting cross-border and organised crime. After being established by a Council decision in 2002, EUROJUST has in fact slowly but steadily established its crucial role as the practical contact point for European cooperation of national prosecutors and judges with a growing number of cases and a tangible added value.[6] In the fifth year of its existence, ie 2007, the Commission plans to launch a consultation process on the future of EUROJUST.[7] There are three aspects that in our opinion should be subject to further scrutiny during this process and beyond.

6. First, there is the issue of "forum-shopping". One of EUROJUST's tasks is to suggest to national authorities which jurisdiction is "in a better position" to undertake an investigation or to prosecute specific acts.[8] "Better position", however, is not further defined and might imply that a jurisdiction is in fact "better" where legal obstacles like admissibility of evidence or other procedural rights are lower, therefore making a conviction more likely. It is encouraging to observe that EUROJUST has addressed this issue internally and has drawn up "Guidelines for deciding which prosecution should prosecute".[9] These guidelines provide inter alia that "prosecutors must not decide to prosecute in one jurisdiction rather than another simply to avoid complying with the legal obligations that apply in one jurisdiction but not in another". However, these rules are merely internal and without binding legal force. EUROJUST's existing legal base does not explicitly forbid the practice of "forum-shopping". It cannot be excluded therefore that under specific circumstances, eg political pressure to achieve results in high-profile cases but also in the course of day-to-day work, distinctions between "law-enforcement friendly" and "defence-friendly" jurisdictions might be drawn and national authorities accordingly advised.

7. Second, the relationship between EUROJUST and EUROPOL seems not yet to have been definitely set. While there are working agreements between the two, the more general questions of which body serves the other and which body controls the other are (intentionally?) left open. We consider it necessary that a clear allocation of tasks is foreseen reflecting the distinction made in many member states—with some exceptions, notably the UK and Ireland—between the judiciary and the police, in which the prosecutor controls and leads the criminal investigation and the police force renders practical assistance.

8. Third, regarding the principle of "equality of arms" in criminal procedures, we consider it a considerable setback that there is thus far no legal framework envisaged that would facilitate effective cross-border cooperation of defence lawyers. Existing structures are based on private initiatives that are not institutionalised and do not guarantee that every suspect who faces international investigations is able to enjoy the benefits of an international defence team. To address this shortcoming, the Council of Bars and Law Societies of Europe (CCBE) has proposed establishing a European Criminal Law Ombudsman whose task not only would be to safeguard the rights of defence but also to provide help assembling international defence teams.[10] While this proposal is still under discussion in professional circles and may not be the final answer,[11] it nevertheless illustrates that there is a need to create a European legal framework and European structures that would allow for an equality of arms.

9. With respect to the last key action foreseen for 2008 in the field of "organised crime and terrorism", we welcome the Commission's plan to address the issue of radicalisation. Several studies on this matter have already been released or are currently being carried out. To prevent people from turning to terrorism is in fact one of the four pillars of the EU's Counter-Terrorism Strategy of 2005.[12] Also in 2005, the Commission released a Communication addressing violent radicalisation and recruitment of terrorists and in 2006, set up an expert group on violent radicalisation.[13] The issue is of utmost importance and it is to be hoped that the Commission—while developing its policy on radicalisation—will not only be inspired by the 2008 European Year of Inter-Cultural Dialogue but will also take account of as many findings as possible to get a coherent picture, including eg the most recent study of the Oxford Research Group of April 2007 addressing inter alia the impact of the "war against terrorism" on radicalisation.[14] The Commission's policy scheduled for 2008 on tackling violent radicalisation will require close scrutiny once concrete proposals have been made public.

10. In addition, careful attention needs to be paid while considering the "lack of integration" as a cause of radicalisation and consequent acts of political violence qualified as terrorism. This continuum may endanger human rights and liberty in general, and put "the immigrant" into a highly vulnerable position vis-a"-vis the State and the receiving society. Various studies have shown that this often leads to a situation in which "the non-national" is encapsulated into a category of suspect, criminal or even terrorist.[15] The securitisation of integration of immigrants needs to be condemned and deplored by stating as a premise that an "immigrant", or "the citizen" who is still considered as such because of his or her particular ethnic origin, is not a criminal, a threat or a security issue, and by acknowledging the multiplicity of factors that take part in any social conflict, instability and acts of political violence at national and transnational level.[16] In this way, the EU should rethink its discourse and overall approach towards groups of its citizens (and non-citizens) who, independently of their nationality, are still considered and treated as "different" because of their racial and religious backgrounds.[17] "Integration" policies at the EU level need to be guided and translated into a transnational policy fostering equality of treatment, social inclusion and non-discrimination in a diverse Europe.

11. To conclude, the chapter on "Security and Freedom" in the Annual Policy Strategy for 2008 gives the impression that there seems to exist a certain perception within the Commission that freedom is a natural by-product of security: implement security and freedom will automatically tune in. Such a perception, however, would in fact be rather new. Up until now, a notion has persisted that freedom and security are antithetical values requiring a "balance". In our view, however, neither notion represents a proper approach. Instead, we consider the EU to be rooted in the principle of freedom. Security—as important as it is—eventually is merely a tool in support of freedom and not an objective for its own sake.[18]

II. FREEDOM OF MOVEMENT AND MANAGING THE EU'S EXTERNAL BORDERS: A CROSS-CUTTING PRIORITY

12. The Annual Policy Strategy identifies the management of migration and the EU's common external borders as cross-cutting priorities for the year 2008. The EU's current strategy in these areas generally consists of strengthening the security rationale at the common EU external territorial borders through an integrated border management (IBM) policy combined with a global approach to migration. The European Commission calls for a multifaceted approach aimed at a "global" and "comprehensive" response to migration, and which is primarily based on the reinvigoration of a transnational policy intending to prevent irregular immigration, counter human trafficking and protect its external borders. It is our view that the real nature, impact and actual effects of the intersection between migration and borders need to be further explored and assessed from a human rights and rule of law perspective. In fact, both the integrated and the global approaches appear to constitute a new political strategy whose real purpose is to present in a more innovative manner the vision according to which more security measures at the common external borders are the appropriate solution to the challenges facing the EU in the areas of borders and migration. This policy strategy fosters the securitisation of the common external borders through operational cooperation, risk analysis, exchange of information and the use of modern technologies,[19] the preferable response for tackling the phenomenon of irregular immigration.

13. FRONTEX, the new European Agency responsible for managing operational cooperation at the EU's external borders, is presented as the key institutional actor in charge of implementing the global and integrated polices on borders and migration. The European Commission foresees in 2008 the expansion of its capacities and functions by improving the networking of sea border controls and the implementation of a European surveillance system aimed at helping member states to deal with growing flows of irregular immigrants. Moreover, the Communication also envisages increasing the financial resources to FRONTEX by €10.9 million in 2008. Before expanding further the competences, capacities and financial resources of FRONTEX, the joint operations, risk analysis and feasibility studies carried out by this Community body should be subject to a close scrutiny, review and regular independent monitoring.[20] A majority of its functions, and the way in which they are being implemented in the national arena, suffer from a high level of secrecy and lack of transparency. This raises a series of concerns for the sake of the rule of law and the compliance with principles of European Community (EC) law, such as proportionality and legality. One way to solve some of these weaknesses would be to more directly involve the European Parliament in order to ensure that the rule of law and the principle of proportionality are duly guaranteed. The well-established democratic checks and balances founding the very nature of Community governance would need to come actively into play. Further, the Agency would need to ensure that EC law (more particularly the Schengen Borders Code), and the legal guarantees provided therein, guide every single action related to the management of the common EU external borders that it coordinates.

14. Indeed, one of the main tasks of FRONTEX is to coordinate operational cooperation between the member states in the management of the external borders.[21] In this regard, FRONTEX still remains vulnerable in terms of its independence from the highly politicised agenda in the field of borders and migration. This is partly due to its dependence on member states' solidarity for it to be able to operate, and its sensitivity to emergency-driven situations politically constructed in the national arena. In the light of this, there is a need for FRONTEX to become fully immune and independent from the political struggles, priorities and "solidarity" actions of the member states. Furthermore, while FRONTEX's mandate would be significantly enhanced with the adoption of the Proposal for a Regulation establishing Rapid Border Intervention Teams, the establishment of these teams still raises a number of questions as regards the way in which some of their tasks and functions would work in practice.[22]

15. In parallel, the European Commission aims at deepening the "external dimension" based on a migration-development agenda, taking the case of Africa in particular into consideration. In fact, current practices of "border control" rely heavily on the extra-territorialisation of control and prevention of human mobility to the common European area. This action is often carried out via partnerships and agreements with third countries of origin and transit allowing for the expansion of control to their territory as well as in terms of readmission and return of those labelled as "irregular immigrants". These actions, however, raise a number of serious concerns, among others, as described below.

16. First, they may lead to human rights violations in relation to the status of refugees.[23] The process of prevention that underlines this kind of pre-border control presupposes a practice of labelling an individual as an "irregular immigrant" even before s/he leaves the country and enters EU territory. This preventive action ignores the fact that the targeted individual may not be in fact an "illegal" but a potential asylum-seeker or refugee. The presupposition of "illegality" and the preventive border may contravene the full respect of human rights and the facilitation of due access to a determination procedure and a case-by-case assessment for refugee status as stipulated by the 1951 Geneva Convention relating to the Status of Refugees.

17. Second, the resort to pre-border surveillance prevents the application of European Community law and the rule of law. Because the border checks do not fall within the realm of Community governance, nor under the scope of European Community law, the protection and guarantees thereby provided do not apply. By externalising the border, the actual consequences and effects of the joint operations coordinated by FRONTEX are framed outside the well-established democratic checks and balances inherent to the European Community.

18. The external dimension of migration needs to be strictly guided by the principles of freedom, security and justice upon with the Union is built. The rule of law provided by the regulatory setting that has been constructed so far inside the European Community should be the rationale followed by every aspect related to the external dimension inherent to the current concept and implementation of Integrated Border Management and the global approach to migration.

Sergio Carrera & Florian Geyer[24]

April 2007

1 Commission of the European Communities, Communication from the Commission-Annual Policy Strategy for 2008, COM(2007) 65 final, 21.2.2007. Back

2 J M Barroso, "Building a partnership for Europe: Prosperity, solidarity, security", Speech/04/375, 21 July 2004. Back

3 M Wallström, Statement on the Commission's Annual Policy Strategy, Speech/07/141, 13 March 2007. Back

4 "Central fingerprint database plan draws fire from all over EU", Timesonline, 16.3.2007 (retrieved from www.timesonline.co.uk on 11.4.2007); "Fingerprint database creates storm", The Australian, 16.3.2007, (retrieved from www.theaustralian.news.com.au on 11.4.2007). Back

5 S Ludford, EU fingerprint database-Euro big brother? (retrieved from www.sarahludford.libdems.org.uk on 11.4.2007). Back

6 See Council of the European Union, EUROJUST Annual Report 2006, Council doc. 7550/07, 21.3.2007. Back

7 Council of the European Union, EUROJUST Annual Report 2006, Council doc. 7550/07, 21.3.2007, p. 74. Back

8 Articles 6 (a) (ii) and 7 (a) (ii) EUROJUST Council decision, OJ L 63, 6.3.2002, p. 1. Back

9 Annex to EUROJUST Annual Report (2003). Back

10 Proposal by the CCBE for the establishment of a European Criminal Law Ombudsman, December 2004. Back