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Justice and Home Affairs Post-Council Statement

Volume 534: debated on Thursday 3 November 2011

The Justice and Home Affairs Council was held on the 27 and 28 October in Luxembourg. My right hon. Friend, the Secretary of State for Justice, the Scottish Lord Advocate Frank Mulholland 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). The Commission updated on the implementation of the second generation Schengen Information System (SIS II), noting that progress remained in line with the previously agreed Council conclusions. The central system was still expected to go live in the first quarter of 2013. The second milestone test was planned for the second quarter of 2012. The Commission undertook to keep the Council informed.

Next the Commission congratulated member states on the successful rollout of the visa information system (VIS) to north Africa. The UK is not bound by the VIS regulation because it does not participate in the common visa element of the Schengen acquis.

The presidency, supported by the Commission, stressed the importance to local populations of the proposal to extend the local border traffic regulation to the whole of the Kaliningrad region and corresponding Polish oblasts. Insisting it would not create a precedent, they proposed the Council and Commission submit a declaration to the proposal reiterating this. The presidency concluded that a first reading deal could be reached with the European Parliament, whose Committee had accepted the proposal without amendments. The UK is not bound by this legislative proposal since it builds on that part of Schengen in which we do not participate.

The Commission presented its Communication on smart borders, which addressed the possibility of an entry-exit system (EES) and registered traveller programme (RTP) for the Schengen area. Before bringing out legislative proposals next year, they wished to secure the clear support of both member states and the European Parliament on the best way forward. The smart borders package would require time and investment and there were important data protection issues to address. Member states expressed broad support for the communication and highlighted the potential benefits for enhancing internal security, combating organised crime, identifying visa overstayers and reducing border crossing time for regular travellers. However, given the required investment. member states called for a thorough cost-benefit analysis before proceeding. The UK is excluded from these arrangements measures since it builds on that part of Schengen in which we do not participate.

Under AOB, France raised the increasing problem of itinerant crime and called for a debate at the next JHA Council.

The EMCDDA (European Monitoring Centre For Drugs And Drug Addiction) presented the findings from its 2011 annual report on state of the drug problems in Europe, which will be published on the 15 November. Heroin and opiates remained at the heart of the problem. Commissioner Malmström welcomed the report and said that there was a need for further EU action in this area. Commissioner Reding then presented the Commission’s new communication on “Towards a stronger European response to drugs”. It offered a future legislative package and practical action to build a strong framework for combating illicit drugs. The Council also agreed the synthetic drugs pact. The UK welcomed the EMCDDA report and the Commission’s communication. The UK also endorsed the views of delegations who had called for a civil approach to the confiscation of criminal assets and welcomed the presidency’s focus on synthetic drugs, and in particular on precursors used to tackle these drugs.

The Commission provided an update on the negotiations with the United States regarding an EU-US agreement on data protection.

During a discussion on passenger name records (PNR) Commissioner Malmström noted that the European Parliament would vote on the EU-Australia agreement that day. She also reported that discussions with the US had reached an advanced stage, and a political understanding had been reached. Retention periods would be 15 years for terrorism and 10 years for other serious crime, where the latter would apply to crimes punishable by three years under US law. The “push” method would be the norm, but “pull” could be used in very limited cases. There would also be a reference to the EU-US data protection negotiations. The Commission added that on third country transfer they were considering a solution similar to the Australia agreement. The agreement now needed to be transformed into a legal text. They hoped to finalise this in the coming weeks. The UK supported the idea of an EU-US agreement, and was pleased that a political agreement had almost been reached. The UK supported the Commission’s view that security and data protection could both be improved at the same time. PNR data were an absolutely vital tool in the fight against terrorism and organised crime, and we should continue to co-operate with the US for the security of all our citizens.

The presidency invited Greece to update Ministers on progress with the Greek action plan (GAP) on asylum and migration management, on which there were some notable improvements: a reduction in the asylum backlog from 46,000 to 33,000; a rise to an average of 12% in international protection recognition rates and ongoing recruitment of operational staff. The European Asylum Support Office (EASO) referred to their operating plan for Greece, and provided an update on deployment of asylum support teams made up of experts from member states. Frontex gave a brief update on the areas in which they were also supporting the GAP. The conditions in detention centres were very troubling, and the Commission urged the Greek authorities to address the issues at the Greek—Turkish border as a priority. The Commission highlighted that the economic situation in Greece was well understood by member states, but the EU had made significant funding resources available; these resources had to be used. Others agreed. Finally, the Commission stated that co-operation with Turkey was vital, and that agreement with Turkey on readmission would not be forthcoming without a deal on visas and mobility. Greece said that EASO and Frontex, as well as member states, had provided pivotal support but noted that this was not a long term solution and Greece was dedicated to strengthening its own resources.

Discussions on the Greek action plan continued during a closed lunchtime session on wider issues of illegal migration and the impact of visa liberalisation, during which the UK stressed the importance of strong external borders, supporting those who had raised concerns about migration flows from the south-east and across the Mediterranean and about trafficking. A clear focus on upstream migration work in our dialogue with neighbouring regions and countries of origin was essential, while EU action, under the global approach to migration, needed to tackle the key drivers, namely economic instability and political insecurity. The UK also shared the concerns of others about the activities of organised criminal groups in facilitating immigration crime, noting that there were strong links here to the abuse of free movement rights. Forged documents were used to get around the rules and gain access to rights they would otherwise not be entitled to. It was wrong that criminals profited from free movement, while those who upheld its responsibilities suffered.

The presidency summarised the state of play on the asylum package: negotiations on procedures and reception conditions directives continued steadily at expert level; The European Parliament voted for adoption on the qualification directive, solutions for moving forward with Eurodac continued to be scoped; and an early warning and preparedness system continued to develop as a solution to unblocking the negotiations on Dublin. The latter proposal would be discussed in more detail at the forthcoming Strategic Committee on Immigration, Frontiers and Asylum (SCIFA). The Commission congratulated the presidency on the headway being made on the package, and encouraged the Council to continue to look for solutions, while remaining mindful of the views of the European Parliament.

The presidency noted political agreement had been reached on the outstanding issue of correlation tables relating to both the single permit directive and qualifications directive. The UK had not opted into either of these instruments.

The Commission presented their communication on integration of migrants, highlighting the importance of integration and recognising that responsibility for integration rested at a local level. The presidency noted that Council conclusions would be prepared on this issue for the December JHA Council, with work continuing under future presidencies. Cyprus said this would be a priority during its 2012 presidency and informed Ministers that they would organise a conference on integration.

The Commission introduced its communication on co-operation in the area of the JHA within the Eastern Partnership (EaP). Member states noted that clear actions should be in the roadmap which was being developed, co-operation between eastern partners and Eurojust should be further encouraged and the principle of the rule of law was vital to the Eastern Partnership. The presidency announced that on 4 November there would be a conference on the Prague process, which would take forward the Eastern Partnership.

Spain noted that ETA had ceased its campaign of violence. They thanked the EU for its support and noted that the UK had also helped. The Commission was keen to hear views on a possible EU terrorism finance tracking system (TFTS). The main question was whether we needed such a system. The EU counter-terrorism co-ordinator and Europol supported such a system, but it was noted that the EP was divided. Member states noted the need to ensure data protection given the current transfer of bulk data under the EU-US agreement, but expressed concerns about whether the proposal would be cost effective. In addition to the Commissions’ proposals, one delegation wondered if the solution was rather to improve the EU-US agreement. The UK asked for more detail about the added value of the proposals and what the options and costs would look like. The Commission agreed to undertake an impact assessment and consult further with the EP before returning to the Council with proposals.

The justice day began with the Commission introducing its recently published proposal for a directive on minimum criminal offences and penalties for insider dealing and market manipulation. The aim of the proposal is to secure full implementation of legislation on financial services and protection for the financial markets. This directive accompanies a wider Commission proposal for a new regulation, introduced to create a stronger EU framework for tackling insider dealing and market manipulation. The UK noted the presentation.

Next the presidency provided an update on discussions in the Council on the directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest. This is the third measure on the roadmap to strengthen criminal procedural rights. The UK has not opted into this directive, at the initial stage of the negotiations, because the Government are of the view that the directive as published by the Commission is not proportionate and could have an adverse effect on our ability to investigate and prosecute offences effectively. The presidency reported that progress had been made on many aspects of the instrument, however further discussions are required in the working group in relation to the scope of the instrument and on the admissibility of evidence obtained in breach of or derogation from the rights in the directive. There was no discussion.

The presidency then held a discussion on the draft directive on establishing minimum standards on the rights, support and protection of victims of crime. The UK and other member states supported the presidency’s approach on clarifying the scope of victims’ rights in relation to the role of victims in criminal proceedings and that the vulnerability of victims should be determined on a case by case basis. The presidency expressed the hope that a general approach could be agreed at the December JPIA Council.

The presidency then provided an update on the draft directive on combating sexual abuse and exploitation of children and child pornography. This directive seeks to ensure that criminal activities to sexually exploit children, including misuse of the internet, are more fully covered than in the existing framework decision (2004). They reported that on 27 October the European Parliament had adopted the text agreed by the Council, following agreement between the Council, the European Parliament and the Commission. The UK noted the update.

The presidency and Commission introduced the proposal on an EU common sales law. The Commission confirmed it would be an optional instrument sitting alongside national law that did not harmonise national systems. This was also discussed during the ministerial lunch, the presidency concluded they would analyse the proposal further.

During any other business the presidency informed the Council on the outcomes of the EU-Western Balkans ministerial forum held in Ohrid on 3-4 October and the EU-Russia Ministerial Permanent Partnership Council held in Warsaw on 10-11 October.

The Council also adopted a report on the application of the resolution which establishes the network for legislative cooperation between the ministries of justice of the European Union. The objective of the network is to promote better understanding of the laws of other member states, thus enhancing mutual trust and promoting the application of the principle of mutual recognition.