The Justice and Home Affairs (JHA) Council was held on 6 and 7 December in Brussels. My right hon. Friend the Secretary of State for Justice and I attended on behalf of the United Kingdom. Roseanna Cunningham MSP also attended the Justice day on behalf of the Administration in Scotland. The following items were discussed.
The Council began with the main committee and adopted the A points; political agreement was reached on the Dublin (III) regulation.
On the common European asylum system (CEAS) the presidency summarised the progress made on the outstanding asylum instruments. The Commission (Malmström) welcomed the progress, and urged the Council to look positively upon some of the amendments tabled by the European Parliament on the Eurodac regulation, which raised the level of safeguards for law-enforcement access. The overarching message from those Ministers who intervened was that quality should not be forfeited for speed. Some Ministers remained concerned by the direction of negotiations on the asylum procedures directive, signalling that the current Council mandate on unaccompanied minors and vulnerable persons remained a red line in order for national authorities to be able to tackle abuse of their asylum systems. The UK has opted in to the Dublin (III) and Eurodac (II) proposals but has not opted in to the three other directives which make up the CEAS.
The EU counter-terrorism (CT) co-ordinator (Gilles de Kerchove) presented his update on the implementation of the EU counter-terrorism strategy and set out where he thought the EU should focus over the next year. He highlighted how the rise of the lone wolf phenomenon and the increase in EU citizens travelling to conflict areas to engage in Jihad underlined the need for an EU strategy to combat radicalisation. He also thought that member states should address the external dimension of terrorism, in particular the threat coming from the Sahel, and that they should find a way to resolve their differences on the level of EU involvement in the protection of critical infrastructure. The UK considered aviation security an area where the EU can continue to add value and welcomed the extension of the current risk-threat methodology applied to inbound cargo to other areas of EU aviation security, such as passengers and prohibited items. The UK also described how the EU could add value by facilitating the sharing of best practice on countering radicalisation; the recent discovery of a far-right plot in Poland reinforced the importance of addressing the needs of vulnerable people and halting the growth of extremism. The UK shared the concerns of the CT co-ordinator about the threat from international terrorism, in particular al-Qaeda exploiting the conflict in Syria, and highlighted that it was vital that member states work collectively to see how to mitigate threats from these regions.
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). The Commission informed Council that an interim solution had been found to address the delays in a member state’s preparation of its national Schengen Information System (SIS) II platform. If implemented immediately this would avoid significant costs and delays to other member states and the Commission. The UK supports the continuation of the current SIS II project.
The Commission (Malmström) presented its second biannual report on the Schengen area. The political discussion that ensued was wide-ranging and while all welcomed the factual report, Ministers were frank in highlighting their concerns. These included calls for progress to be made on the smart borders package, the need for a new legislative proposal to replace the annulled Council decision on Frontex maritime operations, calls for progress on the Schengen legislative package, continuing concern regarding the effects of visa liberalisation in the western Balkans, and the need for further action regarding the situations in Syria and at the Greece-Turkey border. The UK expressed its continued interest in the management of migration in the Schengen area, and noted the recent visit by the UK Immigration Minister to the Greece-Turkey border, which highlighted the good work being done and the importance of co-operation with Turkey on broader JHA issues. The UK said it valued its co-operation with Frontex and other member states to combat illegal immigration, thought that we also needed to keep a close eye on displacement of migratory flows, and highlighted returns and readmissions as an integral part of successfully managing migratory pressures.
The presidency briefly updated the Council on obstacles to information exchange including issues arising from the transposition of the Swedish decision on information exchange. The participation of judicial authorities as gatekeepers of law enforcement data in some member states had had an effect on those countries’ ability to transpose the decision, given its limitation to law enforcement data only. The presidency looked forward to a more in-depth debate following publication of the Commission’s proposal for an information exchange model (EIXM).
Over lunch Ministers discussed how EU visa policy focused on the balance between using visas to promote growth and tourism on the one hand and maintaining security and tackling illegal immigration on the other. Member states were divided on where the priority should be and there was a return to some of the ground covered in the October JHA Council on abuse of visa liberalisation agreements with third countries.
Under AOB the presidency reported on the legal migration directives and the Schengen package. Progress had been made on intra-corporate transferees, and on seasonal workers the Committee of Permanent Representatives (COREPER) had approved a mandate for discussion with the European Parliament the day before Council. The UK has not opted in to either of these directives. The presidency reported that it was doing its utmost to agree the Schengen package: informal agreement with the European Parliament had been reached on the reciprocity mechanism in the 539 regulation (common visa list) and the file would go to COREPER on 17 December; the first trilogue meeting on the Eurosur (border surveillance) regulation was scheduled for 17 December; progress was being made on the Home Affairs multi-financial framework package; and agreement was in sight on the technical amendments to the Schengen borders code.
Also under AOB the Commission (Malmström) said that no decision had yet been made on the possible merger of Europol and CEPOL (the EU police training college), but argued that a merger could strengthen the links between training and operations, be more efficient and save money over time. On Syria, the Commission stressed the importance of monitoring the situation in Syria and its neighbours and indicated it would take forward work on the regional protection pilot. The incoming Irish Presidency committed to having a debate during its Presidency on the issue.
In a joint session with Justice Ministers, the presidency introduced its review of progress on the Stockholm programme—the five-year programme for Justice and Home Affairs—and handed over to both Commissioners (Reding and Malmström) who summarised achievements to date. The UK noted that the Stockholm programme had been agreed under the previous Government, and that the present Government did not endorse it all. The UK welcomed the progress report, but remained concerned about the missing elements in the paper; PNR needed to be a priority in order to effectively tackle terrorism and serious crime, and it was important to continue tackling abuse of free movement, something to which the JHA Council had committed itself under the road map on migratory pressures. The UK could not entirely agree with the focus on bringing forward a proposal on the European public prosecutor (EPP), and had limited appetite for giving extra powers to Eurojust, but instead could see that the EU’s energies could be better focused on ensuring the European Asylum Support Office (EASO) was well equipped to support member states in implementing the asylum legislation and helping those under asylum pressure. In the UK’s view the Council conclusions on solidarity adopted earlier this year provided the right blueprint for priorities across the asylum and migration area for the coming year.
The presidency asked member states to support its compromise text on the directive on freezing and confiscation of proceeds of crime, in order to be able to open discussions with the European Parliament. The Commission (Malmström) could not support the presidency’s text. There were three areas where it fell short of the level needed to add value to the fight against organised crime: non-conviction based confiscation needed to cover deceased persons; extended confiscation should not be limited to serious offences as defined in national law; and the protections for individuals needed to be strengthened. The Commission was, however, positive about the prospects of a good outcome to discussions with the Parliament. Most member states could support the text as a compromise for the purposes of making progress, but acknowledged that almost all aspects of the text would be revisited in trilogue, as the Commission had suggested. The UK reiterated the conflict between the non-conviction based provision and the criminal law legal base of this instrument. The current provision would have little impact on those member states which did not have non-conviction based confiscation already, yet for the UK which had extensive civil forfeiture powers (covering a much wider range of circumstances than contemplated here) it would require those powers to be either limited or duplicated using criminal law mechanisms. That was a bad outcome for all: the provision should either be deleted or be amended so that it did not apply to those member states which already have civil forfeiture powers. The incoming Irish Presidency congratulated the current presidency on securing a general approach and looked forward to progressing what would clearly be a lively trilogue negotiation.
The presidency secured a general approach on the market abuse directive (MAD—criminal sanctions for insider dealing and market manipulation) which will enable trilogue negotiations with the European Parliament to begin. The UK has not opted in to this directive.
The presidency presented its progress report on the data protection regulation and directive. Three horizontal themes had been discussed: the number of delegated and implementing acts; the risk of disproportionate administrative burdens on data controllers; and the different issues arising for the public and private sector. These issues were linked to the choice of legal instrument (regulation or directive) which would need to be addressed later. The UK urged other member states to look hard at the potential impact of the regulation on business and jobs. The presidency concluded that the Data Protection Working Group should look at strengthening the risk-based approach, and that the question of flexibility for the public sector should be reassessed upon conclusion of the group’s first reading of the text.
A general approach was agreed for the regulation on mutual recognition of protection measures in civil matters, with the presidency noting that the UK parliamentary reservation was still in place. Trilogue discussions will now take place alongside further negotiations on some remaining issues and additional recitals.
The presidency updated delegations on continuing discussions on the proposal for a directive on the protection of the Union’s financial interests through criminal law. The presidency and the Commission were confident there would be a quick conclusion under the Irish Presidency. The UK, supported by a number of other member states raised the concern that the legal base of this instrument still had not been resolved.
There was an orientation debate on the proposed regulation on the European account preservation order. There was general agreement on the importance of providing sufficient safeguards to the debtor although exactly how that is to be done has yet to be agreed. Many delegations underlined that the regulation should only apply cross-border and flagged the importance of the necessity for the order to be issued by a Court. Ireland confirmed that this dossier would be a priority during their presidency. The UK did not opt in to this proposal, but is playing a full-part in the negotiations; with a view to a possible post-adoption opt in.
The presidency presented their guidelines for further work on the proposals on matrimonial property regimes and the property consequences of registered partnerships. Discussion centred on whether the dossiers should be negotiated in parallel or whether there should be a focus on the matrimonial property regimes proposal. The presidency concluded that broad support for the guidelines existed and invited the working party to continue negotiations. The UK has not opted in to these proposed regulations, and has no plans to opt in post-adoption.
In updates on the main legislative files the presidency reported that the second trilogue on the European investigation order had been cancelled. Negotiations on the access to a lawyer directive had also stalled, as the European Parliament were not able to proceed at the same pace as the Council. Discussions will continue under the Irish Presidency. Lastty on the Justice Financial Instruments 2014-20, good progress was being made in discussions with the European Parliament.
The Council endorsed the report of the working party on e-law (e-justice) and the working party was encouraged to continue to make progress and report to COREPER in the first half of next year. The presidency noted in particular the communications strategy which would increase visibility of the e-justice portal.
Under non-legislative activities, the EU drugs strategy (2013-20) was discussed. The presidency thanked the experts who had drafted the strategy for having created an evidence-based, balanced strategy. The strategy would be implemented through two action plans—the Irish presidency would be responsible for the first and underlined that it would be a priority for them under their presidency. The Commission indicated it would present a legislative proposal during the course of next year to limit new psychoactive substances (legal highs).
The presidency also provided a state of play update on the accession of the European Union to the European Convention on Human Rights. The presidency underlined that during its term it had undertaken intensive discussions on the internal rules in Brussels in parallel with progressing negotiations in Strasbourg. The Commission underlined that it was determined to move forward; it was confident that solutions to difficult issues could be found and accepted that the internal rules were necessary to make accession operational in practice.
The presidency provided an update on the multi-annual financial framework for the agency for fundamental rights. Approval of the multi-annual framework proposal will be put to the European Parliament at the plenary on 13 December. The presidency noted that the UK had to maintain its parliamentary scrutiny reservation and accordingly proposed that the Council make a request to the FRA to undertake the projects set out in its 2013 annual work programme, which was developed with reference to the current MAF, until this reserve was lifted. To this end the presidency has developed Council conclusions. The UK will positively consider the Council conclusions and the presidency concluded that it had broad support. The Council conclusions would be considered by the relevant working group and the presidency hoped they would be agreed before end of the year.