Justice and Home Affairs Council

Thursday 12th June 2014 Written Statements

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

The Justice and Home Affairs (JHA) Council was held on 5 and 6 June in Luxembourg. My right hon. Friend the Secretary of State for Justice and I attended on behalf of the United Kingdom. The following items were discussed.

The interior session began with the Council seeking and securing a general approach to the draft Europol regulation. This was on the understanding that more time would be allowed for discussions at expert level to ensure the coherence of the data protection provisions with those in other JHA files such as Eurojust and the European Public Prosecutor Office (EPPO). Pending this further technical work, the current text will now form the basis for the trilogue negotiations with the European Parliament, which look set to commence in autumn 2014. The UK did not opt in to the draft regulation at the outset, but will continue to take an active part in negotiations and will consider whether or not to opt in post-adoption once the final text has been agreed.

The Council discussed the issue of foreign fighters in Syria, in the aftermath of the recent attack in Brussels. Member states joined the presidency in strongly condemning the attack. The UK expressed its condolences to the Belgians and supported proposals for action from the EU counter-terrorism co-ordinator. Member states agreed that the attack in Brussels highlighted that foreign fighters must be seen as a shared threat requiring collaborative effort. The UK stressed the importance of implementing existing initiatives quickly. The Council then adopted the revised EU strategy on combating radicalisation and recruitment to terrorism and instructed the terrorism working party to continue its work on defining the accompanying guidelines.

During the mixed committee, the Commission gave a progress report on the actions agreed by the EU’s Task Force Mediterranean (TFM) to address illegal immigration across the Mediterranean and prevent migrant deaths at sea. Ministers agreed that prioritisation of EU efforts was necessary, with preventative work upstream in countries of origin and transit being the principal focus, alongside enhanced efforts to tackle people smugglers and traffickers. The UK supported these aims, calling also for increasing returns of those not entitled to be in the EU.

Next, the Commission presented its latest biannual report on the functioning of the Schengen area, highlighting in particular the launch of the new external border surveillance system, Eurosur, and calling for member states to fulfil their commitment to share information on secondary illegal migration movements within the Schengen area. The Government have a strong interest in the effective functioning of the Schengen area and continues to work with European partners to tackle migratory pressures across the EU.

Over lunch there was a discussion on the selection procedure for the new executive director of Frontex.

Under AOB the presidency gave legislative updates on the directive facilitating entry and stay for students and researchers and the progress on the smart borders package. The Commission presented their communication on minimum standards on sanctions and measures against employers of illegally staying third country nationals and the communication on the EU blue card. The Commission also presented proposals to amend the visa code and introduce a new category of touring visa which they hoped would encourage economic growth while maintaining security.

Sweden provided a summary from the seventh meeting of the Global Forum on International Migration and Development (Stockholm, 14-16 May 2014); Slovenia updated Ministers on the recent meeting of the Interior Ministers of the BRDO process (a meeting of Interior Ministers from former Yugoslav countries, plus Albania, which took place in Brdo pri Kranju, Slovenia, 2-3 June 2014) and Poland provided a summary of the latest ministerial forum for member states of the Schengen area with external land borders.

The incoming Italian presidency listed its priorities for the coming semester: combating human trafficking; promoting legal migration to facilitate bona fide travellers; relations with third countries; and smart borders packages. The incoming presidency said that they would focus on the implementation of the common European asylum system and would like to see a move towards mutual recognition of asylum decisions. Other priorities included cyber security, gender-based violence and disaster responses.

During the joint interior and justice session, there was a discussion on the EU’s future JHA work programme, which is due to be agreed by the European Council on 27 June. Areas of consensus included the need to focus on implementation and consolidation of existing legislation; action to tackle trafficking in human beings and people smuggling; action on counter-terrorism and counter-radicalisation; and co-operation with third countries and between member states. The UK stressed the importance the public attaches to illegal immigration and the need for the EU to respond appropriately to those concerns. The UK also called for strengthening the EU external border to be a key focus of the guidelines, alongside action to tackle abuse of free movement—such as sham marriage and document fraud—action to tackle trafficking in human beings and modern slavery, improved exchange of criminal records, and more effective returns of prisoners to their countries of origin. The UK also said it was important for the Council to be able to review the guidelines once adopted. The presidency said they would reflect on the views presented by Ministers, and submit a letter to the President of the European Council. The presidency invited the incoming Italian and Latvian presidencies to take over implementation of the guidelines.

Next, the presidency reported on the progress made on the Schengen aspects of protocol 36 to the treaties—the 2014 opt-out decision. No discussion took place.

There was a discussion about the recent European Court ruling which invalidated the data retention directive (DRD). The Commission (Malmström) gave a cautious welcome to the judgment, and indicated that it would be for her successor to consider what steps to propose in response to it. Member states noted the judgment, but many were still assessing its impact. Some member states called for new EU-wide legislation to replace the DRD as they believed this would help them defend legal challenges. Other member states’ responses, including the UK’s response, were more nuanced. The UK acknowledged the need for proportionality but also cautioned member states against calling for new EU measures if this would diminish the effectiveness of a vital law enforcement capability. We noted that communications data is used on a daily basis to fight serious crime.

Next, the Council adopted the Council conclusions on the EU anti-corruption report.

Justice day started with a discussion on the proposed general data protection regulation, as well as a short update on the proposed directive covering processing of personal data for the prevention and detection of crime. With regards to the proposed regulation, the presidency sought a partial general approach on its compromised text for international data transfers. Ministers were reminded of the commitment made at October European Council to complete the digital single market by 2015, of which the regulation was an integral part. Several member states were supportive of the presidency’s initiative to secure a partial general approach but wanted to return to various issues at expert level, particularly whether data transfers should be allowed on the basis of a data controller’s “legitimate interests”. Some countries urged for quicker progress on the rest of the regulation, noting that recent decisions of the European Court of Justice—the Google case in particular—risked taking the impetus for shaping the debate away from the Council.

The Justice Secretary, speaking for the UK, did not agree that the text was ready for a partial general approach given the number of member states that acknowledged a need to make further changes, but recognised that he was in a minority. The presidency concluded that a partial general approach had been agreed subject to extensive caveats, including further points of detail being considered at working group level.

On the one-stop shop, the Council legal service (CLS) reiterated its view that a streamlined supervisory mechanism in the regulation must provide an avenue of effective redress for individuals, above the needs of a simple, single decision-making process for organisations. Some member states, including the UK, welcomed the presidency’s proposed model, while appreciating the concerns of many member states for greater powers to be retained at local level to ensure “proximity” to the decision making process. All member states favoured more involvement for local regulators and would want this included in any fixture redraft. Some member states mentioned the need for the proposed European data protection board to be a centralised body with legal powers to resolve disputes among local supervisory authorities.

Next, the presidency secured a general approach on the proposal for a directive on the rights of children in criminal proceedings. The UK is not opted in to this measure. The Commission reiterated that the child’s best interests should always be the overriding principle. This resulted in several member states lifting their reservations, although concerns remained about the proposition that children might have to pay for legal assistance.

The presidency presented a “balanced compromise” on the first 19 articles of the proposal for creation of a European public prosecutor (EPPO). The majority of member states agreed that the college model contained in the presidency’s text should form the basis for future work, despite continued calls from the Commission for a more centralised approach. Looking forward, member states took the view that substantial work was needed on all aspects under the Italian presidency.

The presidency presented a paper which set out the progress made so far on the Commission proposal to reform Eurojust’s legal framework. The Commission could not support the presidency’s text as it stood, because the governance arrangements proposed would dilute the Commission’s role in the running of the Eurojust agency. They hoped it would be possible as discussions proceeded to find effective compromises that would enable Eurojust to work more efficiently.

The Council adopted a general approach on the proposed amendment to the insolvency regulation, which the UK welcomes as a contribution to encouraging a recovery culture and return to growth. Nearly all member states thought this was a balanced political compromise, although there remained concerns over the handling of late technical working groups, as well as the detail of the procedure for co-ordinating insolvencies of groups of companies: these would be picked up in negotiation with the European Parliament when considering the recitals.

Under any other business, the presidency noted the limited progress on the common European sales law, while recalling that sufficient time was needed for discussion on the dossier. The incoming Italian presidency presented its priorities in the field of justice. These would include civil law files—insolvency, small claims, legalisation and matrimonial property—and data protection. On criminal law, it would prioritise files on the European public prosecutors office, criminal procedural rights and human trafficking. On hate crime, the Greek presidency noted ongoing work on hate crime for example the Council conclusions on combating hate crime adopted at the December Justice and Home Affairs Council and a subsequent seminar on hate crime at Thessaloniki. The Commission provided an update of the recent EU Roma summit.

The Commission also provided an update on ongoing negotiations with the US on an “umbrella agreement” providing data protection rules for the transfer of information concerning law enforcement, and negotiations on a review of the “safe harbor” agreement. On the umbrella agreement, the Commission said that discussions were in their final stages. On the review of “safe harbor”, the Commission informed the Council that solutions had been found to most of its recommendations, but that a position on the use of data under the national security exemption still needed to be resolved.

Over lunch, there was a wide-ranging and theoretical discussion of fundamental rights. This included ensuring the charter of fundamental rights was considered when the EU institutions were legislating, as well as a consideration of the interaction between member state constitutional courts, the European Court of Justice in Luxembourg and the European Court of Human Rights.