Justice and Home Affairs Council

Thursday 14th June 2012 Written Statements

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

The Justice and Home Affairs (JHA) Council was held on 7 and 8 June in Luxembourg. My right hon. and learned Friend the Lord Chancellor and Secretary of State for Justice and I attended on behalf of the United Kingdom. The following items were discussed.

The Council began in mixed committee with Norway, Iceland, Liechtenstein and Switzerland (non-EU Schengen states) with an update on the second generation Schengen information system (SIS II). Commissioner Malmström reported that the delivery of SIS II remained on schedule for the first quarter of 2013. Initial feedback on the Milestone 2 tests had been positive, with a full report due in July. The UK supports the current SIS II project.

Next, the presidency led a political debate on Schengen governance based on the first biannual report from the European Commission. The Commission called for more accurate and current data on secondary flows within the EU; looked forward to the swift adoption of the visa liberalisation temporary suspension mechanism; and encouraged member states to make better use of the Schengen information system and supplementary information request at the national entry (SIRENE) bureaus. It also drew the Council’s attention to the non-binding guidelines contained in the report on temporary residence permits and travel documents and on the exercise of police powers in internal border areas. There was some agreement by member states on the need for more accurate data on secondary movements within the Schengen area and on the need to reach swift agreement with the European Parliament on the visa suspension mechanism. The UK also highlighted the importance of tackling criminality, human trafficking, abuse of free movement, document fraud and the need for an effective returns policy to combat illegal migration, including the readmission agreement with Turkey.

The presidency called on the Council to accept its compromise on the two legislative instruments: the Schengen evaluation and monitoring mechanism (SEMM) and the Schengen borders code (SBC). Where the evaluation of a member state showed persistent and serious shortcomings threatening public policy or internal security, the Council would be able to reintroduce internal borders for up to two years through the amended SBC. The only outstanding issue for the SEMM was the change in legal base from article 77 TFEU to article 70.

Member states agreed to change the legal base, which the UK welcomed as rightly reflecting the UK’s partial participation in the Schengen acquis. While the UK had yet to complete its domestic parliamentary processes, the Government position was not to opt out. The UK also noted that the compromise package on the SBC correctly reflected that it was for the Council to decide on the imposition of internal border controls rather than the Commission.

The presidency concluded agreement on the proposals and said that the European Parliament would be approached to launch formal trilogue discussions on the SBC and to hold informal discussions on the SEMM. The Commission issued a declaration reserving its rights under the treaties to challenge the legal base and balance of institutional competencies before the European Court of Justice.

Over lunch many member states acknowledged the case for revising the data protection directive, but raised concerns about the effect on the processing of information by member state authorities and about whether the proposals respected subsidiarity. Obligations on data controllers and the effect of the directive on existing international agreements were also discussed.

The main Council started with a discussion on the common European asylum system. The presidency updated the Council on progress in trilogue with the European Parliament on the Dublin regulation and reception conditions directive, with the asylum procedures directive to follow shortly thereafter, and noted the adoption by the Commission of its proposal for a revised Eurodac regulation. During the discussion the Commission reminded the Council of the need to ensure the new asylum package added value and was consistent with the case law of the European courts. In general, member states welcomed the new proposal on Eurodac. The UK has opted in to the Dublin regulation and is considering its participation in the new Eurodac proposal. The UK has not opted in to the two other directives.

The presidency urged the Council to maintain momentum on the solidarity measures being deployed to support member states under pressure and to ensure the necessary follow up was discussed at a political level. The presidency provided an update on the Greek taskforce and made suggestions to involve the UN Refugee Agency (UNHCR) in the registration and processing of asylum claims; increase the necessary staffing for the three new services; and provide for further involvement by the International Organisation for Migration and Frontex on returns. The European Asylum Support Office presented a quick overview of asylum trends in the EU. The Commission supported constant monitoring of the solidarity effort but warned that asylum challenges would not be dealt with effectively by focusing on illegal migration trends. The UK takes the view that solidarity work should focus on preventative action and practical co-operation.

In a discussion on readmission agreements, the presidency hoped the Council conclusions on co-operation with Turkey would be agreed soon, which would allow swift progress to be made on the EU-Turkey readmission agreement. The earliest adoption date would be 21 June, at the Employment, Social Policy, Health and Consumer Affairs Council. It appealed to the two member states with outstanding reservations to agree the conclusions before that time. The UK supports the rapid conclusion of the EU-Turkey readmission agreements, which will be subject to a UK opt-in decision. On Pakistan, the Commission were in Islamabad on 12 June to discuss implementation of the readmission agreement and invited delegations to attend.

Presenting his biannual report, the EU counter-terrorism co-ordinator (Gilles de Kerchove) spoke of the importance of ensuring co-operation between EU agencies in combating terrorism and suggested Frontex could begin to play a role in combating terrorism at the EU’s external borders. He also highlighted the link between security and development and called for EU action to prevent the emergence of terrorist safe havens in Africa. The UK supports work being done in these areas of concern in the CT field and encourages future EU engagement on this work.

The Council adopted the Council conclusions on a global alliance against child sexual abuse online. The Commission noted they had been in close contact with the USA and would raise the global alliance at the 20 and 21 June EU-US ministerial. The UK supports this initiative.

The Council also adopted the Council conclusions on the Europol information system (EIS) in the fight against cross-border crime. The UK supports the increased use of the EIS.

A brief update was presented on legal migration proposals. Trilogue with the European Parliament had commenced on the directive on intra-corporate transferees while the seasonal workers directive was still under discussion at working group level.



The presidency informed the Council that negotiations were ongoing on the proposed visa reciprocity mechanism and visa liberalisation suspension clause. The UK has not opted in to these measures and does not take part in Schengen visa arrangements.

The Justice day began with presidency reaching a general approach on the directive access to a lawyer. This is the third proposal on the EU’s criminal procedural rights road map, and it sets minimum standards for the rights of defence. The UK did not opt in to this directive because the Commission’s proposal as originally drafted would have had an adverse impact on our ability to investigate and prosecute crime. The UK explained that the concerns which had led them not to opt in had been resolved in this text. Cyprus will take forward negotiations with the European Parliament during their presidency. The Government will consult Parliament on any decision to opt in post adoption.

The Council also reached a general approach on the regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I). The UK noted it had not completed parliamentary scrutiny on the proposal.

Next, the presidency secured agreement for a multi-annual framework for the European Union Agency for Fundamental Rights (FRA) for 2013-17, which sets out the themes for its work. The presidency’s text excludes police and judicial co-operation in criminal matters. The UK supports the decision not to extend the remit and believes it should not be extended until after the FRA’s planned evaluation. The framework will be sent to the European Parliament for its consent.

The presidency reached a partial general approach on two draft regulations establishing two new funding programmes—the justice programme and the rights and citizenship programme, for the period 2014-20. These are successors to the existing funding programmes in the current Fundamental Rights and Justice framework. As the draft regulation for the proposed justice programme has been issued under title V of the treaty on the functioning of the European Union (TFEU), the UK opt-in applies. The UK has not opted in to this programme. The opt-in does not apply to the draft regulation establishing the rights and citizenship programme and the UK put down a scrutiny reservation on the article regarding the protection of financial interests of the Union.

There was an orientation debate on the Commission’s proposal for a common European sales law (CESL). The purported aim of the CESL proposal is to stimulate growth by facilitating cross-border trade, providing legal certainty and simplifying the process for businesses and consumers. The CESL would not replace existing national laws, but would be an alternative regime to the existing contract law regime in each member state. The Cypriot presidency will continue negotiations on the proposal. The Government are currently evaluating the results of their recent call for evidence on this proposal.

The presidency also reported on three other negotiations which were in trilogue with the European Parliament. They hoped to have a first reading deal finalised by the end of the month on the victims and cybercrime directives; regarding the victims directive the Government have written to both Houses requesting scrutiny clearance. The European investigation order was unfortunately proceeding much more slowly due to delays in the European Parliament.

Over lunch there was an orientation debate on the data protection regulation which covered public and private sector obligations and the balance of protection of personal data and administrative burdens.