The Justice and Home Affairs (JHA) Council was held on 25 and 26 October in Luxembourg. My right hon. Friend the Secretary of State for Justice (Chris Grayling MP) and I attended on behalf of the United Kingdom. Frank Mulholland QC also attended the justice day on behalf of the Administration in Scotland. The following items were discussed.
On an EU civil protection mechanism there was broad support for the presidency’s compromise proposal on risk management, which removed the obligation on member states to share risk management plans with the Commission and replaced it with an obligation to apply a risk-based approach to disaster management. There was also some progress on the proposed arrangements for a voluntary pool of pre-committed member states’ assets that would be available for EU operations. However, member states were divided on financial incentives to support the commitment of member states’ assets to the pool, where the UK argued that the Commission’s proposed funding levels for maintenance costs were too high and suggested that EU funding would be better used paying for the one-off costs of adapting resources for use in EU operations, or to co-fund training to aid interoperability. The UK also emphasised that civil protection should remain the primary responsibility of member states and stressed that the nature of the asset pool must be truly voluntary; member states should not have to provide justification when deciding whether to commit assets.
The UK, with some support, also resisted the Commission’s proposal to address capacity gaps through EU funding for buffer capacities. The UK said that there was a danger that this may lead to an overall reduction in capabilities. With no consensus the presidency called for further working group level discussions.
On the common European asylum system (CEAS), the presidency said that the reception conditions directive was due to be approved under the Council’s legislative items; only technical questions remained on the Dublin (III) regulation; negotiations with the European Parliament continued on asylum procedures, and COREPER had agreed the EURODAC package. The UK has opted in to the Dublin (III) regulation and the new EURODAC proposal. The UK has not opted in to the three other directives on reception conditions, asylum procedures and qualifications.
On Syria, the Commission warned that 350,000 people had already left Syria, with around 16,000 asylum applications being lodged in the EU. The EEAS also referred to the United Nations forecast that the number of Syrian refugees could double. Member states supported the establishment of an RPP, arguing for swift progress with a priority to support rapid capacity building in the region.
The United Kingdom noted that asylum claims had increased, albeit from a low base, and it was right that the priority would be to work with UNHCR. The UK had donated £39.5 million of humanitarian aid to Syria and could support the creation of an RPP, with the aim of ensuring protection close to the country of origin, on the condition that resettlement would be a measure of last resort and only after local integration or return is no longer an option. Swiftly establishing a broader dialogue with Turkey was another essential component of supporting the region. The presidency called upon the Commission to continue preparatory work of an RRP.
The Council adopted the Council conclusions on the protection of soft targets from terrorist activities. The UK has supported the presidency’s initiative, particularly in relation to the sharing of experience and best practice in protecting soft targets.
The presidency presented its progress report on the implementation of the 2011 Council conclusions on enhancing the link between the internal and external aspects of counter-terrorism. The European External Action Service underlined the importance of a coherent approach given, it argued, that the most significant threats to member states all have links outside the EU. The counter terrorism co-ordinator acknowledged the significant progress made but called for the inclusion of counter-terrorism in all funding instruments, enhanced engagement in CT projects in third countries by the EU agencies, and the involvement of DG Justice on the judicial aspects.
The Commission gave a presentation by the Commission on the illicit trafficking of firearms, undertaking to produce a communication early next year.
Over lunch there was a discussion on intra-EU relocation of beneficiaries of international protection, resulting in general support for a voluntary mechanism. The UK emphasised the importance of practical co-operation as the expression of “solidarity” rather than relocation, keeping any minimal relocation voluntary, and the need to ensure any proposal for action in this area did not go ahead until it could be demonstrated that the lessons of the previous project (in Malta) had been learnt.
The mixed committee with Norway, Iceland, Liechtenstein and Switzerland (non-EU Schengen states) started with an update on the implementation of the second generation Schengen information system (SIS II). Comprehensive testing phase had been successfully completed. The UK continues its support for the continuation of the current SIS II project.
On Bulgarian and Romanian accession to the Schengen acquis, the presidency and Commission expressed regret that the Council was still not in a position to agree given both countries had fulfilled the technical criteria to join. The UK accepts that Romania and Bulgaria have met the technical criteria to join the Schengen area.
On the implementation of Greece’s national action plan on asylum reform and migration management, Greece, the Commission, Frontex and the European Asylum Support Office provided an update on progress. The UK thanked the Greek authorities, the Commission and other agencies for their work, but noted that urgent needs remained and a priority should be for the Greek Government to make use of available EU funding. The UK had deployed a national expert to Athens to support the authorities on accessing funds and had offered support in translating materials. The UK looked forward to seeing a sustainable plan in place, with clear benchmarks, and would consider further assistance to Greece on the basis of a refreshed action plan. Others agreed, with a particular emphasis on clear benchmarks. The presidency agreed to return to this at the December Justice and Home Affairs Council when the action plan will be revised.
There were updates on the EU action plan on migratory pressures (the road map) from the Commission, Eurosur and Frontex. The key tools and risks were discussed. The UK welcomed the presidency’s report noting that the most important objective was to take real and concrete measures to tackle illegal immigration including the abuse of free movement. Momentum had been seen in several areas, including on returns, trafficking and co-operation with Turkey, and the UK highlighted the Commission’s recent work on the sham marriage handbook as a positive example of practical action. The UK highlighted a recent case in which an individual was imprisoned for four years for his role in an organised criminal conspiracy to conduct sham marriages between EU nationals and third country nationals. The UK noted the links between the priority areas on the road map, including the effects of visa liberalisation from the western Balkans, where the UK had detected a significant number of Albanians trying to cross the UK border illegally with fraudulently obtained identification documents. The UK was one of the co-drivers of action on abuse of free movement by third country nationals, as set out in the road map, and we continue to work with other member states, the Commission and EU partners to seek further practical progress in this area.
The presidency introduced the Commission’s third annual report on post-visa liberalisation monitoring of the western Balkans published in August. The Commission accepted that certain member states had seen an increase in unfounded asylum applications from these countries, but said if the recommendations in the report were applied correctly it would ensure effective implementation of the visa agreements. There was agreement that the revised 539 regulation (listing the countries whose nationals must be in possession of a visa when crossing the Schengen external borders) which included the long called for “visa safeguard clause” (temporary suspension of visa waiver) must be swiftly adopted. Although the UK does not participate in this visa liberalisation, it supports the measures being introduced to combat abuse of such agreements. The presidency agreed to closely monitor the situation.
The justice day began with the presidency seeking views on the scope of the powers of extended confiscation in the draft directive creating minimum standards on the freezing and confiscation of proceeds of crime. The presidency put forward four options for narrowing the scope of the extended confiscation regime, all of which attracted some support from different delegations. However, the presidency concluded that the way forward was to limit the requirements by reference to “economic benefit” and “serious crimes”. The UK has not opted in to the proposed directive but is engaging in the negotiations with a view to considering opting in at the post-adoption stage.
The presidency then sought member states’ views on ne bis in idem (namely that a person should not be pursued a second time for something on which he has already been legitimately convicted or acquitted) in the context of the proposal on criminal sanctions for insider dealing and market manipulation. The majority of member states considered that it did not require a prescriptive solution at EU level. The presidency concluded that they would proceed not to seek to “solve” the ne bis in idem issue through the operative text of the instruments. There was also a discussion on the absence of minimum levels of criminal penalties in the draft directive.
The presidency provided a state of play update on the general data protection regulation and set out its approach to negotiations going forward, while also stating the intention to seek a partial general approach in December on the thematic issues of delegated and implementing acts and administrative burdens. There was also a broader discussion about instrument type and whether a directive was in fact more appropriate than a regulation given its ability to provide harmonisation, but also flexibility where appropriate.
The Commission introduced its proposed directive on the protection of the financial interests of the EU by criminal law (the PFI directive) which it published on 23 July this year. There was discussion on the legal base of the draft directive with the Council legal service stating their view that the current one was not correct. The Commission noted that they would await the views of the European Parliament’s legal service. The first detailed discussions at working group will take place on 30 and 31 October.
Under AOB, the presidency reported that two trilogues on the European investigation order had been scheduled for November; the Commission expressed support for the European Parliament’s view that the balance achieved in the Council general approach on this instrument was wrong.
There was also a presentation on the state of the drug problem in Europe by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA). The presidency also introduced the final report on the fifth round of mutual evaluations on financial crime and financial investigations. The presidency declared that the report would be discussed by the Standing Committee on Internal Security in November.
Over lunch Ministers discussed how protection for debtors could be improved in the European account preservation order. The majority of those intervening supported courts approving preservation orders in all cases. However the discussion was inconclusive about whether creditors should be obliged to provide security when applying for an order or whether a liability rule was needed to cover compensation to the debtor for any damage caused by an order.