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Justice and Home Affairs: Post-Council Statement

Volume 597: debated on Tuesday 23 June 2015

The Justice and Home Affairs (JHA) Council took place on 15 and 16 June in Luxembourg. My right hon. Friend, Lord Faulks QC, Minister for Civil Justice and I attended on behalf of the United Kingdom. The following items were discussed.

Justice day started with the Latvian presidency securing a general approach on the data protection regulation, following three and a half years of negotiations. The UK supported the text as a basis for negotiations with the Parliament. However, UK support had a number of caveats. The UK stressed the need for a balanced instrument that strengthens privacy rights in a simple, coherent and informed way and does not threaten innovation or the success of the digital single market. The UK also voiced strong concerns on the effect on SMEs and other business, about the overly bureaucratic “one stop shop” model, and the threats posed to freedom of expression by the so-called “right to be forgotten”, which the UK opposes on principle. The UK sees no justification for an expanded right such as that contained in the data protection regulation.

Luxembourg, as the incoming presidency, stressed that it would keep all of these concerns in mind during trilogue negotiations. Luxembourg is committed to keeping both the regulation and directive (covering personal data processed for investigating and prosecuting crime) together as a package, with the aim of full agreement on both instruments by the end of the year.

This was followed by agreement on a general approach on the simplification of public documents regulation. The Council supported the presidency compromise text, with many states noting that this helped to remove barriers and administrative burdens within the internal market. The UK and Ireland highlighted the importance of equal respect for common law and civil law traditions. The incoming Luxembourg presidency would take forward trilogue negotiations with the European Parliament on the basis of this general approach.

Over lunch, justice-related aspects of the Commission’s digital single market strategy were discussed. The Commission wanted clear, simple and legally certain rules, with targeted legislation to harmonise only where there were gaps; they stressed they were not seeking a repeat of the proposed common European sales law. The UK highlighted domestic legislation on online purchases of digital content and the UK’s vibrant e-commerce sector, suggesting that this model could be a useful starting point for EU-level work. The UK emphasised that work on these proposals should respect better regulation principles, including appropriate consultations and impact assessments. The UK also raised combating illegal content online, arguing that a voluntary removals approach, working with industry, had greater global reach than legislation and could deliver more effective results on removals.

On the European Public Prosecutor’s Office (EPPO), Ministers agreed “broadly expressed conceptual support” for the text of articles 1 to 16 of the draft regulation, which cover the balance of power between the central office and delegated prosecutors. The UK reminded member states that we would not participate in this measure.

Under AOB, the presidency noted progress on the data protection directive and work with the European Parliament to reach a compromise on the small claims regulation. The presidency and the Commission updated the Council on the recent EU-US JHA summit in Riga. The Commission highlighted co-operation with the US on combating money laundering and terrorist financing, as well as progressing on the data-related umbrella agreement and safe harbour.

The incoming Luxembourg presidency, starting in July, presented its priorities for the justice field: the two main priorities would be data protection and the European Public Prosecutor’s Office. Linked to the European public prosecutor, it planned to drive forward progress on the draft PIF (“Fraud against the EU’s financial interests”) directive and Eurojust regulation. In civil law, it would introduce proposals on family law and continue work on the simplification of public documents. A motion underlining the Council’s will to move towards EU accession to the European convention on human rights would be put to the October JHA Council. Finally, the Luxembourg presidency said it planned to present a proposal to improve political discussions at Council at its informal JHA Council meeting in July.

The interior session began with a policy debate on migration. While there was broad support for elements of the Commission’s European agenda on migration, there was no agreement on the relocation proposal. The Commission pointed to the development of “hotspots” to ensure processing of arriving migrants, beginning in Sicily, and progress on the proposed “multi-purpose centre” in Niger to try to mitigate flows through that country, alongside enhanced efforts to combat the facilitators. The European External Action Service (EEAS) confirmed that the first phase of the common security and defence policy (CSDP) mission in the Mediterranean would be launched shortly. The UK joined other Ministers in emphasising the need to tackle the root causes of migration, to tackle people smugglers and traffickers, and to break the link between rescue at sea and the expectation of remaining in the EU by returning economic migrants while supporting their reintegration in their home countries. The UK also recalled the European Council’s clear agreement that EU relocation and resettlement schemes should be voluntary rather than mandatory.

The incoming Luxembourg presidency gave a presentation which confirmed the following priorities in the area of migration: more effective returns including use of readmission agreements; progress on operational proposals such as the centre in Niger and “hotspots”; agreement to the draft regulation currently under negotiation that would clarify the treatment of minors under the Dublin regulation;n and political agreement on the visa package and the students and researchers directive. Other priorities included: combating terrorism (in particular dealing with the threat from foreign fighters), implementing the new internal security strategy, concluding trilogues on the Europol regulation, and seeking agreement with the European Parliament on the passenger name records (PNR) directive by the end of the year.

During lunch there was a discussion on returns which saw broad agreement that greater ambition was required in this area as part of the comprehensive approach on migration. More effective EU readmission arrangements were seen as an important element.

The Council conclusions on the internal security strategy were adopted without substantive discussion.

The presidency presented papers which updated Ministers on progress since the 12 February informal European Council statement on the EU response to the Paris terrorist attacks.

The Commission (Avramopoulos) drew attention to its communication “The European agenda on security” and highlighted that in the short term counter terrorism (CT) priorities included: a high-level internet industry forum event in the autumn; making the Europol internet referrals unit (IRU) operational as quickly as possible; swift adoption of an efficient and legally sound EU PNR directive; and preparing for a revision of the EU framework decision on terrorism.

The EU CT co-ordinator (Giles de Kerchove) called for detailed planning on handling the increasing wave of European returnees from Syria/Iraq. This meant investing now in exit and rehabilitation programmes and supporting Commissioner Jourova’s work on prison radicalisation. In his view, the EU also needed to find the resources to enable Europol, Eurojust and CEPOL to enhance co-operation and capacity building in third countries.

The UK welcomed progress on the Europol internal referral unit (IRU) and announced a UK secondee into the unit. The UK also praised the work of the Syria strategic communication advisory team (SSCAT). While welcoming the Commission’s action in establishing the industry forum, the UK cautioned that certain aspects of tackling terrorist abuse of the internet (including encryption and interception) were matters of national security and thus for member states rather than the EU. The UK called for robust minimum standards on legislation on firearm deactivation; for enhanced data sharing on illegal firearms and ammunition; and for the Commission to step up its work on proactive sharing of criminal records via the European criminal records information system (ECRIS). Finally, the UK again underlined the urgency of adopting, with the European Parliament, a strong and effective PNR framework, including intra-EU PNR, before the end of the year.

Europol drew attention to the excellent co-operation it has received from member states’ intelligence agencies. Europol also reported significant increases in the use of their existing CT tools. Most notably, this included the terrorist finance tracking programme (TFTP) which had led to 3,000 separate intelligence leads since the Paris attacks (some 1,500 of which were related to foreign fighters). Europol was on track to establish the IRU by 1 July and had worked constructively with social media companies in recent months.

The presidency urged renewed vigour to implement the post-Paris conclusions in order to keep pace with the threat. The presidency would report the priorities outlined during the debate (and those identified in the Internal Security Strategy Council conclusions) as the JHA Council’s input to the June European Council’s review of the post-Paris statement it agreed in February.

Under AOB, the Commission provided a brief overview of the biannual report on the functioning of the Schengen area, noting that Schengen was the solution not the problem providing that all member states fully applied the rules of the Schengen acquis. The Commission also confirmed that a new smart borders proposal would be published following the results of the pilot phase. The presidency provided an update on the EU-US ministerial meeting which took place in Riga on 2/3 June; this agreed a statement defining the common EU-US JHA agenda over the next five years. The presidency also provided an update on ongoing legislative negotiations including on the European Police College (CEPOL) and the European Union’s law enforcement agency (EUROPOL) regulations and the students and researchers directive.