The final Justice and Home Affairs Council of the Slovakian presidency took place on 8 and 9 December in Brussels. The Minister for Courts and Justice, my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald), and I represented the UK. In due course, the United Kingdom will be leaving the European Union. In the meantime, the UK will remain a member of the EU with all the rights and obligations that membership entails.
Justice day (8 December) began with a discussion on the proposal for a directive on the fight against fraud to the Union’s financial interests by means of criminal law (PIF directive). The UK has not opted in to this measure. The presidency concluded that a qualified majority of member states supported a compromise proposal which included within the scope of the directive VAT fraud with damages of over €10 million, where it related to cross-border supplies between two or more countries. Formal adoption of the measure by the Council and European Parliament is expected in 2017.
This was followed by a debate on the European Public Prosecutor’s Office (EPPO) dossier. The presidency concluded that the majority of member states supported the latest text as the basis for further progress. However, as unanimity is required for this dossier, and some member states could not agree the current text, the presidency indicated that it would be put to the European Council to seek agreement to move forward under “enhanced co-operation” provisions. The UK will not participate in the EPPO.
There was then a discussion on the proposed directive on consumer contractual rights for the supply of digital content. There was agreement that certain contractual rights should be guaranteed by legislation rather than left to negotiation in individual contracts, but Ministers remained divided on issues relating to the scope of the directive. In view of the different views expressed, the presidency proposed seeking a hybrid solution to the question of which contractual rights should apply to digital content embedded in physical goods. The presidency concluded that further technical work was needed on the question of whether the directive should apply not only to digital content in exchange for money and/or personal data, but in exchange for other data as well.
Over lunch, Ministers heard from the Commission about the progress of work to agree non-binding standards with internet groups in the management of hate speech complaints. The Minister for Courts and Justice reiterated the UK’s commitment to protect citizens from online hate crime while protecting the right to free speech. Malta, who will hold the presidency from January 2017, informed Ministers that it proposed to hold a seminar on hate speech and the internet in March.
The final substantive item on the Justice day focused on criminal justice in cyberspace. The Commission provided a progress report on the implementation of the June Council conclusions on improving criminal justice in cyberspace, noting that it was looking at establishing a secure electronic platform for the transmission of e-evidence. It was noted that the current patchwork of national solutions to securing e-evidence posed risks to member states’ ability to carry out effective criminal investigations in cross-border cases.
I stressed the need to address online crime and the importance of collaborating with service providers and other member states. I offered to share UK knowledge and expertise on co-operating directly with service providers, noting recent UK legislation (the Investigatory Powers Act) in this area, while arguing that a common EU approach to jurisdiction should reflect the ongoing work in the Council of Europe on the Budapest convention on cybercrime.
Under any other business, Malta presented its priorities for its forthcoming presidency, including taking forward existing legislation and starting negotiations on the package of measures aimed at tackling terrorist financing, which are to be published by the Commission in December. Malta would also continue the work on e-evidence and the EPPO, with a discussion at the Informal JHA Council in January.
The presidency provided an update on current legislative proposals, noting that political agreement had been achieved on the counter-terrorism directive. The presidency also provided updates on the recent EU-US JHA meeting, and the forthcoming EU-western Balkans ministerial conference. The President of Eurojust presented Eurojust’s fourth report on foreign terrorist fighters.
Interior day (9 December) started with an update from the presidency on negotiations on the proposals for an entry/exit system to improve the security of the external Schengen border. The UK will not participate in this measure but supports its aim of securing the EU’s external border.
This was followed by a substantial discussion on migration. Discussion focused on calls for more support to the EU migration agencies and front-line member states, as well as for more work to be done upstream with countries of origin and transit.
I announced that the UK would deploy up to an additional 40 staff to the Greek islands, in addition to the 75 staff already committed, to support the Greek authorities with asylum processing and the admissibility process. This action demonstrates the UK’s continuing commitment to implementing the EU-Turkey agreement and supporting our European partners.
Under the fight against terrorism item the Council discussed action that was necessary to tackle the threat from foreign terrorist fighters, informed by a report provided by the counter-terrorism co-ordinator. Discussion focused on the need for better information sharing, improved engagement with countries in the middle east and north Africa, and women and children. The counter-terrorism co-ordinator said that he would continue to work on these three strands with the group of most affected member states, which includes the UK.
The Council also discussed issues arising from encryption of communications, focused on the need to ensure that law enforcement bodies are able to access information for law enforcement purposes. I noted that while the UK understands that encryption is important to doing business online, we agree that we must ensure that our law enforcement and security and intelligence agencies are able to access the content of communications in limited circumstances and subject to robust safeguards.
The presidency presented a paper on the management of terrorist attacks, which aimed to start discussions among member states on increased co-operation in this area. The presidency called for more EU funding and stated that a meeting with the heads of rescue services would take place in 2017. The Commission noted that action was needed on sharing best practice, enhancing technology and providing victims with specific support.
Over lunch, Ministers discussed principles of responsibility and solidarity in the context of the EU’s migration and asylum policy. Member states’ positions remained polarised and discussions would continue under the Maltese presidency.
The presidency adopted a partial general approach on the proposal to amend EURODAC (the database of asylum claimants’ details, including fingerprints) on the understanding it would need further amendments to reflect the outcome of negotiations on the Dublin IV and EU asylum agency proposals. The mandate would also be updated in the light of the discussions on the issue of interoperability of information systems. The UK has opted in to the EURODAC proposal and it remains under UK parliamentary scrutiny. I also intervened with other member states to object to the current text on law enforcement access and said that the UK would support further amendments to the text to make it easier to check EURODAC for law enforcement purposes.
Under any other business, the presidency updated on the EU-US JHA ministerial meeting on 4 and 5 December, and looked forward to the EU-western Balkans ministerial conference on 15 and 16 December. The Commission noted that the EU internet forum on 8 December had announced a new tool to automatically remove online terrorist material, and launched the civil society empowerment programme to raise awareness and train civil society on how to produce effective counter-narratives online. The incoming presidency outlined its priorities, including: work on the current legislative measures; new proposals on the second generation Schengen information system, due out in December; continued work to support the implementation of the EU-Turkey agreement; internal security and counter-terrorism; and interoperability and information exchange.