Justice and Home Affairs (Post-Council Statement)

Thursday 16th June 2011 Written Statements

[The Secretary of State for the Home Department (Mrs Theresa May)]

The Justice and Home Affairs (JHA) Council was held on 9 and 10 June in Luxembourg. My right hon. Friend the Secretary of State for Justice, the Scottish Cabinet Secretary of Justice, Kenny MacAskill MSP, and I attended on behalf of the United Kingdom, the following issues were discussed at the Council:

(The Council began in Mixed Committee with Norway, Iceland, Liechtenstein and Switzerland (non-EU Schengen states). The presidency reported that preparations for the VIS go-live date of October 2011 were on track. The Commission underlined the importance of member states notifying their preparedness by the end of July to allow time for the necessary legal and technical preparations.

The update on the Commission-led project to implement the central element of the second generation Schengen Information System (SIS II) confirmed that implementation was still on track.

The Council agreed the draft regulation on creating an IT agency. This will now be considered by the European Parliament to establish whether it can be the basis for a first reading deal.

In advance of the June European Council, Ministers held a wide-ranging debate on borders, asylum and migration, adopting conclusions reacting to three Commission communications on immigration issued last month. The UK highlighted that a stable, secure and prosperous future for the region required effective management of migration, mobility and security. Migration should be considered in assessing reform in the European neighbourhood. The global approach to migration provided the tools and principles for partnerships on migration and member state involvement was vital. Dialogue had to be balanced and transparent. On asylum, the UK raised concerns about the emphasis on legislative solutions: the problem was not a lack of rules, but implementation of the existing ones. While agreeing to the draft conclusions, the UK stated that they did not believe that the common European asylum system was in the UK’s national interest and any further opt-in decision would be taken on a case-by-case basis, taking account of national interests. The UK opposed suspension of the Dublin arrangements for the return of asylum seekers to their first port of entry into the EU and relocation or burden-sharing options but supported practical co-operation. Finally, the UK said a comprehensive approach to migration had to address the issue of free movement. Public support could not be undermined by fraud and abuse of residence rights and associated benefits. The UK and Frontex figures showed sham marriage was on the rise, with evidence of links to organised crime. The balance between safeguarding rights and protecting citizens was vital. The UK said that this issue should be discussed at a future meeting to meet the Stockholm programme commitments in this area.

The Commission presented proposals to amend Regulation (EC) No 539/2001 which lists third country nationals who must possess visas to cross the external borders of the Schengen area and those exempt from this requirement. The Commission’s amendments also include the introduction of a suspension mechanism to allow for the temporary reintroduction of visa requirements in an emergency situation. It would apply to all current and future countries granted Schengen visa waiver (not just the western Balkans). The Commission stressed that it would be applied only in very exceptional cases and as a last resort. The UK does not participate.

Next the Council discussed elements of amending the Frontex regulation. The Commission underlined the importance of reaching agreement with the European Parliament by the June European Council. Frontex agreed on the need for urgency; the agency was at a critical point and could not continue without a revised regulation. There was general agreement on balancing member state responsibilities for border control with the obligation of others to provide resources to support them. The Commission stated that the respect of fundamental rights was of the highest political importance to both the European Parliament and the Commission; the Council would have to agree to the independent monitoring of return operations. Member states disagreed on another name for the proposed “European Border Guard System”. Discussions on the regulation will continue at COREPER ahead of a further trialogue with the European Parliament next week.

The presidency presented Council conclusions confirming that Bulgaria and Romania had successfully completed the Schengen evaluation process; the Council will discuss accession in September.

Finally the Commission presented the main findings from the first six months of monitoring the impact of granting visa liberalisation to the western Balkans. Even though the large majority of travellers are bona fide, there had been a high number of unfounded asylum applications in certain member states relating to minority populations (especially Roma). The Commission underlined that the western Balkan countries were starting to address these problems. A number of follow-up measures would now be necessary, including targeted information campaigns, increased use of border controls and entry bans, and targeted assistance to minority populations.

Following Mixed Committee, Interior Ministers held a lunchtime discussion on asylum where the Commission presented revised proposals to amend the procedures and reception conditions directives. The upcoming Polish presidency said all their efforts would be focused on agreeing at least a core of a common system by 2012. The UK reiterated that a common asylum system would not be in the UK’s national interest.

After lunch, the Council resumed with the Commission giving a short update on three legal migration directives: seasonal workers, intra-corporate transferees and the single permit for residence and work on which they hoped the electronic storage of data would allow a way forward. The UK is not participating in these measures.

Next the Council agreed conclusions on establishing priorities in the fight against organised crime over the next two years.

The Commission presented its air cargo security progress report on the implementation of the EU action plan of 30 November 2011. Commissioner Malmström regretted the negative vote at the Regulatory Committee (the preceding day) due to “difficulty” between transport and security officials in member states and called for greater co-operation. The UK expressed “extreme disappointment” at the outcome in Regulatory Committee, emphasised the threat remained significant and that the proposals voted on would significantly improve standards and called for Transport Ministers to reconsider this.

The presidency adopted the Council conclusions aligning internal and external counter-terrorism. The EU counter-terrorism co-ordinator (EU CTC) presented his discussion paper, highlighting the Arab spring, EU engagement in Pakistan and disappointment at the Regulatory Committee vote. The UK welcomed the EU CTC’s paper, specifically the importance of communication; the link between CT and drugs, the rule of law and organised crime; nuclear security, aviation security; political dialogue with the Arab world and progress on EU PNR. The UK agreed the threat remained strong and said that the EU must target efforts on areas of greatest risk (while complementing member states’ actions) and welcomed the EU Pakistan strategy. The UK asserted the importance of EU passenger name records, committed to supporting the communicators’ network, thanked the Presidency for the conclusions on aligning internal and external CT and highlighted the launch of the UK’s new Prevent strategy.

Under AOB there was a presentation of the project “Police Equal Performance" which is designed to enhance law enforcement capacity in cross-border activities in the western Balkans; a finalised proposal should be completed by the autumn. The upcoming Polish presidency gave a presentation on their priorities which included the common package for asylum; action to tackle synthetic drugs; the Eastern partnership, civil protection; and management of the external border.

The justice day commenced with the Council reaching a general approach on the directive on combating attacks against information systems. The UK welcomed the text, although noted reservations about the developing trend of providing in all such instruments for extra-territorial jurisdiction based on jurisdiction; this should not become the default approach.

Next, the Commission introduced its package of proposals on corruption, including a Commission decision on an anti-corruption reporting mechanism and a paper on EU accession to GRECO (the Council of Europe’s Group of States Against Corruption). The Commission thought Europe had to take this in hand and that corruption had a significant cross-border element, hence the importance of EU involvement in improving the patchy implementation of existing international standards. The Commission was mindful of avoiding additional burdens through the reporting mechanism.

The presidency secured a partial general approach on articles 1 to 18 and Y of the draft directive on the European Investigation Order (EIO), although acknowledged that aspects of the text might need to be revisited at a later stage. Many member states congratulated the presidency on the progress made over the last few months, although it was clear that substantial concessions had been made across the Council, with the grounds for refusing to execute an EIO being the most controversial issue. The UK could not support the current text, maintaining its parliamentary scrutiny reservation. The UK disagreed with the current exceptions to the dual criminality check which executing states could undertake in respect of the most sensitive and serious investigative measures. The drafting of the provision on ne bis in idem might also need to be revisited at a later stage. The incoming Polish presidency intends to continue the negotiations.

Next the Council adopted conclusions on the memory of crimes committed by the totalitarian regimes in Europe. Several member states intervened to recall the importance of action in this area and said they would prefer a legally binding instrument in this field.

The Council then agreed the proposed resolution establishing a road map for future action on protection of victims’ rights. The road map is a statement of political intent, and sets out the basis for future legislative measures. The UK agreed the road map.

The Commission also presented the recently published victims package, including a draft directive on rights in criminal proceedings, a regulation on protection measures in civil matters and a communication on strengthening victims’ rights in the EU. The UK noted the presentation and has yet to make its decision on the opt-in for the directive and regulation.

The presidency also introduced its political guidelines which aimed to set the direction for fundamental issues in the matter of the proposed regulation on succession and wills. The compromise was welcomed by the majority of member states. The UK was grateful for explicit commitment to revisit some issues at a later point to facilitate its possible participation.

Over lunch, Ministers discussed a presidency paper on the future of EU criminal policy.

After lunch the Council noted the proposal for a regulation on electronic publication of the Official Journal of the European Union, which would give proper recognition and legal certainty to the electronic version. As some member states (including the UK) could not lift their parliamentary scrutiny reservations, the text could not be forwarded to the European Parliament for consent, but agreement would enable quick progress to be made should reservations be lifted.

The Council agreed the revised road map on implementation of the European e-justice action plan and endorsed the report of the working party on e-law, without discussion.

The presidency gave an update on the state of play on negotiations on the accession agreement of the European Union to the European convention for the protection of human rights and fundamental freedoms. The Commission expressed the view that considerable progress has been made in the timeframe and they looked forward to continuing work with the Council of Europe.

Then the Commission introduced the recently published communication on protection of the financial interest of the Union through criminal law and administrative investigations.

The Commission presented its communication on protecting EU funds against fraud and other criminal conduct. Commissioner Reding highlighted the proposed reform of the internal structure of Eurojust, in order to provide OLAF (the EU’s anti-fraud office) with a judicial partner, and the importance that a European public prosecutor (EPP) could play in protecting public money across EU. The Government have made it clear that they will not participate in an EPP.

There was a presentation on the missing children Europe conference that took place on 25 and 26 May 2011. The presidency and the Commission recalled the successful conference to raise awareness of the 116000 hotline for missing children, although were disappointed that a substantial number of member states had not yet fully implemented the helpline, the deadline for which had now passed. The UK has implemented the hotline and it is fully operational.

Slovenia also updated delegations on the Brdo conference of the western Balkans, held on 15 April at Brdo pro Kranju, which focused on improving judicial co-operation in criminal matters, in particular in relation to organised crime and asset recovery.

Germany also informed the Council of its impending accession to the network for legislative co-operation, which would take place on 17 June at the next meeting of the network, in Budapest.

Finally, Poland presented its priorities for the presidency, which begins on 1 July 2011, and confirmed that they would focus on protection of citizens’ rights. They hoped to make progress on the regulation on succession and wills and the Brussels I regulation and prioritise the Commission’s package of proposals on victims. Poland also indicated that it would hold discussions on EU contract law at the informal JHA Council on 18 and 19 July.