Justice and Home Affairs Post Council Statement

Thursday 13th June 2013 Written Statements

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

The Justice and Home Affairs (JHA) Council was held on 6 and 7 June in Luxembourg. The Lord Chancellor and Secretary of State for Justice, my right hon. Friend the Member for Epsom and Ewell (Chris Grayling), and I attended on behalf of the United Kingdom.

The Council began with the Justice day. The presidency invited member states to give general support to part of the proposed regulation on data protection, while at the same time stressing that nothing would be formally agreed until agreement had been reached on the entire proposal. There was a detailed discussion during which a number of member states including the UK stressed that further work was needed, that clarity was required on where exemptions would apply, and supporting a properly-defined “risk-based” approach. The UK stressed the need to take account of the effect on small and medium-sized enterprises as well as major ones. A number of states, including the UK, argued that it was too soon to accept the presidency’s text and the level of “general support” called for by the presidency was not forthcoming. The relevant text will be further discussed in future negotiations.

The presidency secured a general approach on the proposed directive on protection of the financial interests of the Union by criminal law. The Council agreed to a number of amendments to the Commission’s proposal, including excluding VAT from scope and deleting the requirement for member states to set minimum terms of imprisonment. The presidency made it clear that the general approach was conditional on the text being based on article 83(2) rather than article 325 of the treaty on the functioning of the European Union. This was an outcome which the UK supported.

The presidency presented a paper concerning the proposed regulation on a European account preservation order (EAPO), highlighting the importance of striking an appropriate balance between the interests of the creditor and the debtor—the concern that had led to the UK deciding not to opt in. Discussions covered the possible liability of a creditor who had suffered loss as a result of a wrongly issued EAPO, the possibility of the creditor being required to provide security, and the issue of ex parte proceedings.

Over lunch Ministers discussed the charter of fundamental rights, and rejected calls for work designed to increase its visibility.

The Council considered the proposed regulation on insolvency. All member states which spoke, including the UK, supported the proposal. The UK pressed for speed, highlighting the benefits of the proposed measure for the internal market. Various delegations intervened to raise points of detail.

The Commission presented its new proposal on acceptance of certain public documents as one which would reduce regulatory procedural burdens and enable savings of £255 million per year.

The Council adopted conclusions on fundamental rights, rule of law and the charter of fundamental rights. The Commission presented its annual report on the charter and made reference to the justice scoreboard. The UK stressed that the justice scoreboard had not been accepted by the Council and had no legal base; moreover; rule of law work at EU level should focus on an informal exchange of views—there was no power for the Commission in respect of member states’ constitutions.

A state of play report was given on EU accession and the presidency noted the progress made.

The Council adopted the EU action plan drugs strategy for 2013-17, and received a presentation by the director of the European monitoring centre for drugs and drugs addiction.

The Lithuanian Minister made a presentation of his country’s justice priorities for their forthcoming presidency. They included the common European sales law and data protection, and they would seek general approaches on the account preservation order and the insolvency regulation. They would also take forward proposals on counterfeiting and protection of the Union’s financial interests.

The second day began in mixed committee with Norway, Iceland, Liechtenstein and Switzerland (non-EU Schengen States) where Ministers welcomed the deal reached in trilogue on the Schengen evaluation mechanism (SEM) and Schengen borders code (SBC). The package retains the member state peer-to-peer evaluation system and control over reintroduction of temporary internal border controls, with a greater role for the Commission in the implementation of the evaluation system and increased European Parliament access to documents. The presidency also welcomed the third biannual Schengen governance report. The Commission noted that the pressure at the Greece-Turkey land border had decreased, but warned member states to remain vigilant for displacement pressure.

The Greek Minister then presented an overview of progress made on the Greek national action plan on asylum and migration (GNAP). The Minister highlighted what he saw as key achievements, the greatest being the full operation of the new asylum service, as well as the appointment of a single co-ordinator to administer the structural funds. He noted that the focus would now be on raising the standards by opening new reception centres, introducing mobile screening units and through quicker processing. The Greek Minister thanked the UK for its financial support for returns from Greece. The Commission welcomed Greece’s progress, but remained concerned about conditions in some detention centres, and reminded Greece that, given continuing under spending of EU funds, increasing absorption capacity should be a focus for the Greek authorities.

The main Council started with a discussion on foreign fighters and the potential threat they pose if and when they return to Europe. Member states expressed concern about the matter and I agreed to take forward work with a small number of affected member states. The EU counter-terrorism co-ordinator (Gilles de Kerchove) provided an overview of his recent paper on foreign fighters and urged Ministers to take immediate action to address the potential threat to EU internal security that jihadists travelling to Syria posed. The UK highlighted the importance in supporting those who wanted to do all they can to support the humanitarian effort, while deterring them from actually travelling out to Syria where they are at risk of putting themselves and innocent Syrians in danger. I expressed my disappointment that the European Parliament had failed to adopt its report on the EU PNR directive. The external action service (Maciej Popowski) cautioned against viewing all those who travelled to Syria as terrorists and reminded member states of the need also to address counter-proliferation. The Commission declared its intention to carry out a risk assessment on foreign fighters and enhance the work of the radicalisation awareness network. The presidency concluded that there was broad support for the ideas in the CTC’s paper which would be taken forward at working level. The UK also provided a brief update on the recent attack in Woolwich and thanked colleagues for their messages of condolence.

Next the presidency sought views on the Commission’s proposal for a new Europol regulation focusing on the proposed merger of Europol and the European Police College (CEPOL) and strengthened obligations on member states to provide Europol with information. There was a clear consensus against the merger despite the Commission highlighting that the Council had a duty to follow the common approach on EU decentralised agencies and make efficiency and cost savings. The UK spoke out against the merger, agreeing with 18 other member states that it would have a negative impact on both training and operational activities and that the Commission’s own calculations had failed to demonstrate cost savings. The presidency concluded that work would begin at expert level on the assumption that the merger would not be included in the regulation.

On the proposed obligation to share information, a number of member states expressed opposition to the Commission’s proposals. The UK acknowledged the importance of information sharing but said we could not accept any proposal that made national law enforcement agencies accountable to Europol, or that would lead to member states losing control over decisions on what data they share and with whom. Increased obligations could also result in member states overwhelming Europol with information in order to comply with the regulation, to the detriment of the quality of the information. The UK also raised concerns over obligations to carry out domestic investigations at the request of Europol. No other member states intervened on this point. Discussion will move to expert level.

There was an update on the common European asylum system (CEAS). After four years of negotiations, three of the four instruments were adopted by the Council, and the final element (Eurodac regulation) will be adopted at the June Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) Council.

There was a discussion on the protection of refugees from Syria. The European external action service was pleased to announce that President Barroso had secured additional aid for Syria, and hoped that the Geneva II process, the international peace conference held in Geneva that discusses the conflict in Syria, would make progress in the medium term. According to the European asylum support office, Syria remained in the top three asylum intake for the EU member states and anticipated that this trend would remain. The Commission welcomed the increase in humanitarian aid and noted that the UNHCR would shortly call for the humanitarian admission of 10,000 refugees, with a further 2,000 set aside for resettlement to the EU. The Commissioner welcomed the high recognition rate within the EU, but remained concerned about the divergent practices between member states and the detention of Syrian nationals. The UK noted an increase in Syrian asylum seekers, and pointed to increased humanitarian aid as the most urgent short-term priority for the EU; the UK had pledged £170 million to date. The medium-term priority should be the establishment of the regional protection programme (RPP) to provide support in the regions affected and the UK hoped its place on the steering committee for the programme would be confirmed soon. Finally, the UK welcomed work by the European Asylum Support Office (EASO) to develop an accurate picture of asylum claims and in co-ordination of any special support that would be requited as a result. The presidency noted that this discussion would continue at the Informal Council in July, where the UNHCR would outline further the plans for the admission and resettlement of Syrian nationals.

In the margins of the Council, the Ministers of Belgium, France, Germany, Italy, the Netherlands, Portugal, Spain, Sweden and the UK signed the mobility partnership with Morocco, alongside Commissioner Malmström and the Moroccan Foreign Affairs Minister, Dr Saad Dine El Otmani.

Over a working lunch Ministers discussed free movement an issue the UK has been working hard to get the Council to consider. Although there was a divergence of views on how to deal with this issue, all Ministers agreed that free movement was a core right that should be protected and expressed a wish to work together to look at possible abuse of free movement. The UK, supported by a number of other member states, stressed the need to tackle abuse to ensure continued public confidence in the principle, and called for follow-up work in the Council with a report back to JHA Ministers. However, led by the Commission, a number of member states resisted, arguing that the discussion should be led by the Commission with a focus on the evidence of the problem. The presidency asked a Commission-led group to investigate the issue to provide an interim report to the October JHA Council and a final report in December. It was decided that the EPSCO Ministers would also be given the opportunity to feed into the report. The UK thanked the presidency for the discussion and for the recognition that there should be follow up work at EU level and indicated that the UK, Germany and a number of other member states would also be progressing work on ways of dealing with the abuse of free movement.

Under any other business the presidency reported on work on the Eurosur regulation, regulation 562 (Schengen borders code) and regulation 539 (visa requirements for nationals of non-EU countries). The presidency also provided updates on the three legal migration directives. It called for member states’ flexibility on the files on seasonal workers and intracorporate transferees (ICTs) as they hoped to reach first reading deals. Negotiations for the students and researchers proposal would continue under the Lithuanian presidency. The Commission emphasised the importance of the instruments in making the EU more attractive for companies and highly skilled workers while protecting those who were at risk of exploitation. The UK has not opted in to the proposals on seasonal workers and intracorporate transferees and is considering whether to opt in to the third measure on students and researchers.

The multi-annual financial framework (MFF) was making good progress, and the presidency hoped to secure the basis of a deal before the end of June. The presidency highlighted that negotiations continued on the asylum and migration fund (AMF) and internal security fund (ISF police). On the former, there were a number of issues that required flexibility from member states but there was agreement on the latter, subject to the actual budget itself.

The Lithuanian presidency noted that theirs would be the last full term presidency before the European Parliament elections, so there would be a concerted effort to conclude all outstanding negotiations. In addition, Lithuania had put Europol and cyber security high on the agenda and a debate on the latter would be a focus for the Informal Council in July, alongside a review of the Stockholm programme, a discussion on Syria, and the annual report on immigration and asylum. The eastern partnership would be a horizontal priority for the presidency, and the Minister noted that the eastern partners would be present at the October JHA Council.

Finally, the Commission presented its Communication on migration and development in preparation for the forthcoming high-level dialogue; Sweden briefly explained the role of the global forum on migration and development (GFMD) and looked forward to welcoming member states to the meeting in Stockholm next May; Hungary fed back from the recent ministerial meeting in Istanbul on the Budapest process and discussions on the silk routes partnership; and Slovenia provided an update on the Brdo process (intended to strengthen ties with the western Balkans) and the recent informal meeting of Ministers which discussed action to tackle abuse of visa liberalisation and co-operation on combating illegal arms trafficking. The EU-Russia summit on 3-4 June had briefly touched on JHA issues, in particular the visa facilitation agreement (VFA), which the Commission hoped would be signed soon.