Questions and replies about hot themes of the European policy on the Area of Freedom, Security and Justice
mise en ligne :13 12 2007 ( NEA say… n° 43 )
Since the entry into force of the Amsterdam Treaty, the National Parliaments and the European Parliament have met to discuss issues related to the establishment of an Area of freedom, security and justice (AFSJ). The creation of joint committees was considered, such as for a very good example.This work would summarize the opinion of different State about the Treaty reform and about some problems that happened.
(26-27 november 2007)
Since the entry into force of the Amsterdam Treaty, the National Parliaments and the European Parliament have met to discuss issues related to the establishment of an area of freedom, security and justice (AFSJ). The creation of joint committees was considered, such as for example on Europol.
The Reform Treaty would not only strengthen the role of National Parliaments in the European area of freedom, security and justice and reinforce the cooperation between National Parliaments and the European Parliament in all EU policies but also establish a transparent cooperation between the European Commission, Member States, the European Parliament and National Parliaments in evaluating the implementation of the EU policies in the area of freedom, security and justice (Article 64 of the Treaty on the Functioning of the European Union. The Reform Treaty would also strengthen the EU's ability to become an area of freedom, security and justice as it would:
- create a single and simplified legal and institutional framework (which will overcome the current "pillars" structure) and
- improve the democratic legitimacy (by generalising the codecision procedure and the qualified majority voting in the Council).
This work would summarize the opinion of different State about the Treaty reform and about some problems that happened.
What role for Parliaments in the EU global approach to migration?
The example of the draft Directive on sanctions against employers of irregular workers
BELGIUM: “The law of 15 December 1980 relating to, residence, and up to his expulsion from the territory of foreign distinguishes, as regards the right to family reunification, the situation of members of the family of Belgian citizens or foreign citizens of a member of the European Union, by the situation of members of a family of third-country nationals legally residing in Belgium. The right to family reunification of the first is guaranteed by Article 40 of the law of 15 December 1980, while Article 10 of the Act provides the right to family reunification of seconds”. (Because of actual situation in Belgium we have to see the legislation in force).
BULGARIA: Considering the importance of the Black Sea region in terms of migration and combating trafficking in human beings, Bulgaria supports an extension of the application of the Global Approach to Migration to the countries of the Black Sea basin. Bulgaria will continue to work for the taking of adequate measures to increase the effectiveness of migration management through co-ordination of the efforts of Member States and application of the principle of solidarity.
Concerning the Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, Bulgaria believes that the adoption of this Directive will support the efforts of Member States to fill the vacancies on their labour markets for which highly qualified workers who are not Union citizens are not available.
“In Bulgarian legislation, sanctions against employers who hire illegal migrants are contained in Article 82 of the Employment Promotion Act. Any employer, who or which has hired under an employment relationship a foreigner without a work permit, or any resident person, who or which has appointed a posted foreigner without a work permit or without registration at the National Employment Agency, is liable to a fine or a pecuniary penalty to an amount fixed under Article 48 (2) and (3) of the Foreigners in the Republic of Bulgaria Act, unless subject to a severer sanction.”
CYPRUS: The Migration Strategy has not yet been discussed at the House of Representatives.
However, the House’s general position is that a comprehensive strategy on migration should be adopted. Such a strategy should be dealing, in a satisfactory manner, both with combating illegal immigration and with the creation of a common framework on legal immigration.
Employing illegal workers is considered by law as a special offence and is thus punished severely.
A delinquent employer can be imprisoned for up to 3 years or be fined up to 5000 Cyprus Pounds, or both. The Court can also ask the delinquent employer to pay the social contributions/charges for the employee illegally employed, for a period not less than 3 months.
CZECH REPUBLIC: The Senate has not delivered particular resolution on these particular documents, but it supports the idea of Global approach to migration and is concerned over the balancing of approach to both Southern and Eastern dimension of migration.
The Czech Republic currently has legislation providing for sanctions against illegal employment, yet not criminal ones. There is a Government proposal for an amendment to the Czech Criminal Code that proposes the use of criminal sanctions in the area of illegal employment. As regards the current proposal of the Commission, the Senate has already delivered a resolution that generally supports the proposal, but has a problem with the scope of the directive that proposes sanctioning of illegal employment only when the person concerned does not have residence status (resolution attached).
FINLAND: The comprehensive migration policy should be developed according to the approach outlined by the European Council and the JHA Council. Finland considers it important that the development of a common European asylum system is viewed as part of this comprehensive policy.
Increasing coherence and synergy between migration and development policies is a key objective. The EU should also examine its own internal preparatory processes in order to achieve more coherent and better coordinated policies. And the Commission's proposal for a Directive on the admission of highly skilled immigrants and the Framework Directive are important means to address these challenges and promote the comprehensive migration policy. In Finland's opinion it is good that the proposal has also taken into consideration the Member States' authority in labour migration matters. This ensures that the proposal will consciously and effectively influence the means that can best promote the achievement of common migration policy objectives.
The Finnish Aliens Act and Penal Code include provisions on punishments for illegal employment to be imposed on both employers and employees.
The measures to fight illegal foreign labour have been:
- Surveillance Unit for Illegal Foreign Labour
- Consumer Responsibility Act
- Aliens Act
- Posted Workers Act
FRANCE: In April 2006, Delegation for the European Union of the National Assembly adopted a information’ report presented by M. Thierry Mariani on European immigration policy.
The report stresses that "the priorities of the French immigration policy and the European immigration policy, as defined by the European Council in Tampere on 15 and 16 October 1999 and The Hague on 4 and 5 November 2004, are the same:
- Improve the integration of third country nationals;
- Action against illegal immigration.
The Minister for Immigration, Integration, national identity and co, Mr. Brice Hortefeux, confirmed that he would develop his idea of a "European Pact on immigration" in the framework of the French presidency of the Union.
As regards illegal foreign workers, the support for entry, transit and residence of a foreigner is a crime that seeks to specifically anyone who helps entry, residence or on the movement of a foreign worker or not , in an irregular situation on French territory.
GERMANY: The Federal Council, in its opinion of 10 March 2006 in the Commission communication on a strategic plan for legal immigration, confirms a Community competence to regulate the access of third-country nationals to work and is not stressed the determination of the number admission of migrant workers in the jurisdiction of the Member States.
GREECE: The Greek legislation concerning migration (L.3386/05 as applied) strictly forbids the hiring and employment of third countries’ nationals lacking residence permit or written proof of submitting the required documentation for its grant or renewal. More specifically, economic and penal sanctions are stipulated against employers offering labor to nationals of third countries illegally staying in the country.
ITALY: Parliament is considering a government bill against illegal employment. The bill concerns not only undeclared foreign workers but also those regularly employed and Italians, introduces the crime of grave exploitation of work activities and is aimed at those who recruit workers or organize their work activities and subject them to grave exploitation through violence, threats or intimidation under labour conditions that violate contractual or legal norms or are considered degrading.
LITHUANIA: Article 98 of the Labour Code of the Republic of Lithuania defines illegal work as performed by foreign citizens and stateless persons failing to comply with the procedure of their employment established by regulatory acts. Besides, Article 64(1) of the Law on Legal Status of Aliens of the Republic of Lithuania provides that an alien’s work in the Republic of Lithuania shall be considered illegal, regardless of whether it is paid or not, if the alien is working without a work permit and/or employment contract and temporary residence permit, where possession thereof is mandatory.
THE NETHERLANDS: The Senate is of the opinion that initiatives of the European Union regarding migration may have added value compared to national initiatives. It is important initiatives combating illegal migration are being supplemented by initiatives promoting legal ways of migration. Furthermore, in a recent letter to the secretary of state responsible for migration, the Senate’s committee on the JHA-council underlined that a more humanitarian approach for the relief of refugees on – mainly – the southern borders of the EU is desirable. The legislative proposals on legal migration, as presented by the Commission on 23 October last, are yet to be discussed.
The Labour by Foreigners Act regulates the admission of foreigners to the Dutch labour market. On the basis of this Act, employers should have an employment permit at their disposal, unless specifically stated otherwise.
ROMANIA: Migration is an extremely topical issue in Europe at present, as it is seen as one of the tools that can help the EU to solve the skills and labour shortages that will result from its ageing population and falling birthrate. Measures that will need be take:
- monitoring and other measures to limit the worst effects of 'brain drain';
- instruments to encourage return and circular migration;
- the offer of professional training and linguistic courses, through the establishment of training structures in the countries of origin. The responsibility for these would be held by local authorities or non-governmental organisations.
Romania plans to contribute to consolidating EU capacity of providing credible answers to fundamental problems, such as drawing workforce from outside the Community, accompanied by social and economic integration policies, fighting illegal migration by avoiding the creation of an “EU fortress”. To prevent migration of workers from Romania, one of the Government’s priorities is the improvement of the living standard for aged persons through resettlement on equal basis of the system of social insurance, mainly thorough the reform of the public system of pensions.
SWEDEN: No answer.
UNITED KINGDOM: The Commission’s proposals have not yet come before the House of Lords EU Committee for scrutiny. The Committee has in the past expressed the view that in the field of economic migration the role of the EU should be limited to setting standards, in particular in relation to the rights of migrant workers, including their ability to change employers and to move to another Member State (see 14th Report of Session 2005-06 Economic Migration to the EU).
Modern patterns of migration pose particular challenges for the Government. It believes that facilitating travel for tourists, family members, students, businesspeople and workers who meet labour needs that cannot otherwise be met is essential to our national interests. The Immigration and Nationality Directorate (IND) and UKvisas must offer these people a high level of service and cannot simply be organisations designed to exclude people from the country. At the same time, it shares the public expectation that the Government must minimise the number of those able to abuse the immigration system. As the immigration system aims, rightly, to facilitate legal migration for ever greater numbers of travellers, it is inevitable that illegal migration will continue to be fuelled by those who become illegal once in the country. This represents one of the more fundamental changes to the purpose of the immigration system in the twenty-first century.
The employment of illegal workers should be one of the main targets for action against illegal migrants who are already living illegally in the UK. There is a growing recognition that the Immigration Service cannot do this alone. It is leading the Joint Workplace Enforcement pilot (JWEP), which is “exploring the scope for closer coordinated working, including intelligence sharing, between Government workplace enforcement departments to tackle both the use and exploitation of illegal migrant workers”. The pilot group consists of enforcement and intelligence officials from across Government (the Immigration Service, HM Revenue and Customs, the Department for Work and Pensions, the Department for Trade and Industry, the Health and Safety Executive and the Gangmasters Licensing Authority), “to share information and coordinate operations against employers, employment agencies, labour providers and any type of business who are involved in the deliberate use or supply of illegal migrant workers”. So far the JWEP has agreed protocols with all the Departments working with it, and its work has led to one prosecution.446 We are told that an initial evaluation of the pilot will be taking place “shortly”.
Current controls on the prevention of illegal migrant working in the UK are provided in section 8 of the Asylum and Immigration Act 1996 (as amended by subsequent legislation) and apply exclusively to those employing illegal migrant workers. These measures came into force on 27 January 1997. Separate penalties exist under the Immigration Act 1971 for those with visas who are found to be working in breach of their conditions of stay, in addition to those who have entered and are living/working in the UK illegally. New measures to replace section 8 were provided in the Immigration, Asylum and Nationality Act 2006. These include civil penalties for each illegal migrant worker found, and those employers prosecuted for the more serious offence of knowingly employing an illegal migrant worker could be imprisoned for up to two years and/or receive an unlimited fine. However, certain aspects of the new legislation, such as the level of civil penalty to be levied, are currently subject to a public consultation and the 2006 Act measures have yet to be commenced.
POLAND: A foreigner, who was working illegally, must leave Poland. If he/she do not fulfill his/her obligations voluntarily, he/she is a subject to expulsion, and the employer must incur all costs.
REPUBLIC OF SLOVENIA: It supports the efforts of the EU Member States to create a common migration policy, being the only way to manage migration flows at the Community level. Nevertheless, Slovenia believes that within the common migration policy individual Member States should be left sufficient room to adjust the migration profiles to their national specifics.
In the Republic of Slovenia, sanctions against employers of illegal workers are regulated by the Employment and Work of Aliens Act. The provisions thereof are broader than the provisions indicated in the draft Directive and provide sanctions for employers of third country nationals without work permits. This means that employers are sanctioned for employing foreign nationals without work permits irrespective of their residence status - whether legal or illegal.
The fight against terrorism: what role for the EU?
BELGIUM: The law of 19 December 2003 relating to terrorist offences platform permits
to criminalize and punish Belgium terrorist offences. This fight is conducted in respect of human rights and the rule of law. The Law on Offences Terrorists (published in the Belgian Official Gazette of 29 In December 2003), which transposes into Belgian law decision of the Council of the European Union 13 June 2002 on combating terrorism, inserts a new Title I on the terrorist crimes in the Belgian Penal Code. Belgium is a party to several bilateral treaties or multilateral such as the European Convention Extradition (1957) and its two Protocols Additional as well as the European Convention Mutual Assistance in Criminal Matters (1959) and First Additional Protocol. These treaties, although it has a wider scope than the applications for mutual assistance and extradition in connection with the combating terrorism, also apply to these materials.
Belgium has ratified nine of the twelve international conventions sectoral United Nations.
BULGARIA: Bulgarian legislation fully conforms to the scope of Council Framework Decision on combating terrorism (2002/475/JHA). A terrorist offence is a serious criminal offence within the meaning given by the Criminal Code and is punishable by deprivation of liberty for a term of five to fifteen years, and where death has been caused, by life imprisonment or life imprisonment without commutation. The provision for increased criminal liability in the cases where criminal activity is carried out by a terrorist group conforms to Article 2 of the Council Framework Decision.
National legislation provides broader opportunities to investigate terrorist criminal activity within the meaning of the Criminal Code. According to the Criminal Procedure Code, the special surveillance means provided for in the Code may be used for the investigation of these offences: technical means, operational techniques, controlled delivery, trusted transaction, and investigation through an undercover officer.
Council Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) has been transposed into Bulgarian legislation by the Extradition and European Arrest Warrant Act, promulgated in the State Gazette on 3 June 2005. The Act also regulates the procedure related to the transmission, surrender, execution and the consequences of a surrender of the requested person.
CYPRUS: The House of Representatives is very sensitive to the issue of fundamental rights in the framework of the fight against terrorism. It thus examines every measure adopted to ensure that they are proportionate to the means and limits the impact on fundamental rights as much as possible. According to the Constitution of the Republic of Cyprus, such limits are only allowed in the case of protection of public interest.
CZECH REPUBLIC: The implementation of European Arrest Warrant into the Czech legal order was not easy. After a failed attempt to amend the Czech Constitution (the problem being the possible surrender of Czech citizens to other EU countries) a ruling by the Czech Constitutional Court on the constitutionality of the provisions implementing the EAW followed. The Court ruled that the implementation is correct and in line with the relevant constitutional provision. At the moment the Czech Republic does not have problems with the Framework Decision itself and according to the available statistics the European Arrest Warrant works properly in the Czech Republic.
FINLAND: Finland generally takes a positive view of measures to fight terrorism. The criminalization obligations required by the Framework Decision were implemented in Finland by adding a new chapter to the Penal Code: Chapter 34a, which concerns terrorist crimes, came into force on 1 February 2003.
In Finland the Framework Decision on the European arrest warrant has been transposed by enacting the Act on Extradition on the Basis of an Offence Between Finland and Other Member States of the European Union (1286/2003). The Act allows four district courts to decide whether an arrest warrant should be issued.
FRANCE: Political leaders must ensure that the restrictions on civil liberties are proportionate to the terrorist threat. The French transposition into national law of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states need a first revision of the Constitution by the Constitutional Law No. 2003 -267 of 25 March 2003 on the European arrest warrant and then the adoption of Article 17 chapter IV of Law No. 2004 - 204, March 9, 2004 for the adaptation of justice to developments in crime (Articles 695 -11 to 695-47 Title XXV of the Criminal Procedure Code).
GERMANY: The implementation was done by the European Arrest Warrant Act of 20 In July 2006, Federal Law Gazette I, 1721, with the law on international judicial assistance in criminal matters in accordance with the provisions of the Framework Decision has been supplemented and amended.
GREECE: Combating terrorism in Greece is based on preventive action and is constantly pursued through broader projects and political initiatives. Moreover, the development of inter-religious dialogue is pursued, as well as fostering a field of cooperation, within a spirit of mutual understanding and respect for fundamental rights and differentiality. Religious freedom and the freedom of expression and will, which characterize the Greek society, favour the absence of tensions and non-manifestation of extremities of a religious content and constitute a clear condition for co-existence and respect for rights.
In what concerns the Greek side, there is full compliance with the Framework Decision (13.6.2002) on combating terrorism, which has been transposed into the Greek Criminal Law ( L.2928/2001 on Combating Terrorism and Organized Crime, L. 3251/2004 on the European Arrest Warrant) and the implementation of the relevant provisions is deemed as at least satisfactory.
ITALY: During the 14th Parliament, and in response to the international crisis following the unprecedented terrorist attack of 11 September 2001, the Italian Parliament engaged in intense legislative activities aimed at combating terrorism. As regards Italy, on 28 September 2001, only days after the attack on the Twin Towers, the Government issued Law Decree no. 353 of 2001 (Sanctions for violations of measures adopted against the Afghan Taliban faction), confirmed by law no. 415 of 27 November 2001. The legislation with the biggest impact was without doubt Law Decree no. 374 of 18 October 2001 (Urgent measures to combat international terrorism), confirmed by the law dated 15 December 2001. This introduced a series of penal and procedural norms into Italian legislation aimed at more effectively preventing and suppressing transnational terrorist activities which, because they extended across borders, were hard to pursue under existing penal norms.
The measures anti-terrorism are:
- investigative interviews
- residence permits for investigative purposes
- strengthening of intelligence and counter-terrorism activities
- inter-force investigative units
- administrative norms on civil aviation
- new norms regarding personal identification
- new terrorism-related criminal offences
Moreover, Italy has even ratified important Conventions aimed at combating international terrorism:
- International Convention for the Suppression of the Financing of Terrorism (Law no. 7 of 14 January 2003)
- International Convention for the Suppression of Terrorist Bombings (Law no. 34 of 14 February 2003)
- United Nations International Convention against Transnational Organized Crime and the protocols thereto (Law no. 146 of 16 March 2006)
Law no. 69 of 22 April 2005 introduced measures aligning internal legislation with the Framework Decision and set out conditions and modalities aimed at aimed at ensuring that certain limits are respected. Italy’s legislators, availing themselves of the opportunity given them by the 12th considerandum of the Framework Decision and of the Government’s declaration during negotiations , appear to have taken account of the doubts which emerged during preparatory work on the bill. These arose over whether renouncing the principle of double punishment is compatible with the Italian constitutional system and, more specifically, with the principle of legality.
LITHUANIA: A few months ago, Lithuania adopted its new program against terrorism. Its implementation is shared by and the resources were allocated to different governmental institutions.
The assessment of the Framework Decision in Lithuania could be rated as “good”. At the moment, the amendment for the Lithuanian Criminal Code is being prepared by responsible institutions to expand the forms of terrorism activities subject to criminal liability (such as training terrorists, recruiting and others). The Lithuanian Criminal Code and the Code of Criminal Procedure were amended on 27 April 2004 in order to implement Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA).
THE NETHERLANDS: All measures taken in the fight against terrorism, however important they may be, should therefore also be tested against the impact they may have on fundamental rights. The balance between the advantages of new measures and the impact on citizen’s everyday life should be assured. The Framework Decision on combating terrorism (2002/475/JHA) has been implemented in the Terrorist Crimes Act (Wet Terroristische Misdrijven), approved by a majority of the Senate on 22 June 2004. This Act has been revised and extended on 14 November 2006. During the debate on the extension of the Terrorist Crimes Act, several political groups voiced their concerns. These regarded mainly the balance between the combat of terrorist acts and the respect for the rule of law and fundamental rights of citizens.
ROMANIA: Respect for human rights remains an integral part of any comprehensive counter-terrorism strategy. Human rights norms must be rigorously respected, even in states of emergency.
The main legal provisions on terrorism are contained in Law no. 535/2004 on preventing and combating terrorism, which regulates the National System for Preventing and Combating Terrorism. Within the Romanian Intelligence Service (SRI), as national authority in this field, a Centre for Counter-Terrorist Operative Coordination was established.
It was adopted the Law no. 302/2004 on international judicial cooperation in criminal matters. The amendment in October 2003 of the Romanian Constitution, allowing the extradition from Romania of Romanian citizens, measure that will become possible after the enter into force of the new law on international judicial cooperation in criminal matters. In the same time, in order to train magistrates in judicial cooperation in criminal matters, was established the Romanian Judicial Network in criminal matter, the Romanian correspondent of the European Judicial Network.
Romanian courts may issue a European Arrest Warrant under the conditions set forth in Article 81 of this law:
a) in view of criminal prosecution or trial, if the act is punished by the Romanian criminal law with a penalty depriving of freedom that exceeds 1 year;
b) in view of penalty service, if the penalty applied exceeds 4 months, or in view of the service of a security measure;
c) in view of service of a security measure depriving of freedom that exceeds 4 months.
SWEDEN: A European arrest warrant shall be drawn up in accordance with the form contained in the annex to the Framework Decision and shall contain information on:
1. the identity and nationality of the requested person;
2. the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;
3. an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect;
4. the criminal act, specifying the time and place of the act, and including a description of the circumstances in which it was committed, and the requested person’s degree of participation in the act;
5. the legal classification of the act, and whether the act is of a kind specified in the Annex to this Act;
6. the prescribed scale of penalties for the act or, if the European arrest warrant relates to execution of a custodial sentence or detention order, the sanction imposed; and
7. if possible, other legal implications of the act.
UNITED KINGDOM: The Government's proposals include:
• Extension of pre-charge detention powers beyond the current limit of 28 days
• New police power to question suspects after charges have been brought
• Notification requirements for convicted terrorists who leave prison
• Enhanced sentences where terrorists are convicted of general offences
• Changes to control orders in respect of fingerprinting, DNA and powers of entry
• Data-sharing powers for the intelligence and security services placed on a statutory basis
• Police counter-terrorism DNA database put on same statutory footing as national DNA database
• A review of the use of intercept evidence in court.
POLAND: The Framework Decision 2002/475/JHA on fighting terrorism was implemented to the Polish law by the Act of 16th April 2004 on amendment of the Act – Criminal Code and some other acts (J.L. r., No 93, position. 889). Until then, the Polish law did not contain a definition of a terrorist crime. It is hard to discuss the whole process of the implementation of the Framework Decision, but it is important to underline that in order to fulfill requirements made by this Framework Decision, the amended article 115 of the Criminal Code that defined a terrorist crime, is only concerned goal of the action of the perpetrator. Therefore, the catalog of terrorist crimes was limited only to the most serious actions – offences subject to an imprisonment with a maximum scope of at least 5 years. Also, according to the requirements of the Framework Decision the catalog of terrorist crimes was extended by the unlawful threats of committing such crimes.
The Framework Decision on the European arrest warrant was implemented to the Polish law by the Act of 18th March 2004 on amendment of the Criminal Code, Criminal Proceedings Code and the Code of Petty Offences (J.L. of 2004, No 69, pos. 626) – entry into force of this act was 1st May 2004. Amendment of the Criminal Code Proceedings was based on an addition of two chapters: 65a and 65b, accordingly, the application to the EU member state for transfer of a fugitive, on the ground of the European arrest warrant, and on the application of the EU member state for a transfer of a Polish citizen, on the ground of the European arrest warrant.
REPUBLIC OF SLOVENIA: Slovenia implemented the Council's Framework Decision 2002/585/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States by adopting the Act on European Arrest Warrant and Surrender Procedures, published in the Official Gazette of the Republic of Slovenia No. 37/04 of 15 April 2004. The Rules on the form of the European arrest and surrender warrant was published in the Official Gazette of the Republic of Slovenia No. 51/04 of 7 May 2004.
The surrender procedure under the European arrest and surrender warrant runs smoothly.
On 26 October 2007 the National Assembly adopted the Act on International Co-operation in Criminal Matters between the Member States of the European Union (Official Gazette of the Republic of Slovenia No. 102/07 of 9 November 2007), regulating cooperation under international law in criminal matters with EU Member States and replacing the provisions of the Act on European Arrest Warrant and Surrender Procedures and of the Rules on the form of the European arrest and surrender warrant.
The exchange of data for security purposes:
the examples of the Treaty of Prüm and PNR
BELGIUM: Not reached
BULGARIA: The Bulgarian Parliament, through the parliamentary oversight exercised of the operation of the executive, receives information on a regular basis about the measures taken for the country’s accession to the Treaty of Prüm. On 2 February 2007, Bulgaria sent a formal notification to the Federal Ministry of Foreign Affairs of the Federal Republic of Germany regarding the intention of the Republic of Bulgaria to accede to the Treaty of Prüm. The Bulgarian Ministry of Interior is aware of the advantages of such an initiative, which would enable all 27 Member States to avail themselves of the opportunities provided by this Treaty. The incorporation of its provisions will contribute to adding a fundamentally new dimension to the sphere of police co-operation within the EU.
CYPRUS: The House of Representatives has not been consulted on this issue.
CZECH REPUBLIC: The Senate had considerable reservations regarding the process of establishing the Prüm Treaty mechanism outside of the legal framework of the treaties. As regards the new agreement from June 2007, the Senate will be involved in the ratification procedure. At the moment it is expecting the deposition of the relevant documents from the Government. The Senate had not been informed of the original agreement by the Government, as the Government decided that only the new agreement would be relevant. Therefore the Senate has not discussed the issue yet. The Directive on obligation of carriers to communicate passenger data is transposed into the law no. 49/1997 Coll. on civil aviation. The Senate has not voiced any concerns over the issue.
FINLAND: Following the procedure for Union matters Parliament decided that in principle it could approve Finland's accession to the Treaty of Prüm. The Treaty of Prüm is based on respect for human rights, democracy and the rule of law, which are in line with the Constitution of Finland and Finland's legal system in general. The Administration Committee's report notes that the Treaty of Prüm is proving to be a significant step in the development of justice and home affairs. Through the treaty the Member States can in a concrete manner improve the practical exchange of information and cooperation to combat serious crime. No problems have arisen that would stand in the way of Finland's accession to the Treaty of Prüm.
The Finnish Government subsequently submitted a bill to Parliament concerning the ratification of the 2007 PNR agreement. The objective of the Commission's proposal is to require all the Member States to create such a system and to name a competent authority to collect data. The European PNR system would not be a centralized system but would depend on networking among national authorities that are responsible for collecting data. The system would not concern flights within the EU.
FRANCE: The Committee on Foreign Affairs, Defense and Armed Forces of the Senate considered the text at its meeting on 14 February 2007. It was passed by the Senate on 21 Feb. 2007. The delegations for the European Union to the National Assembly and the Senate had requested that it be submitted to the National Assembly and Senate for approval, allowing an open debate on issues related to civil liberties. Currently, no action has been taken on those requests.
This text poses a serious attack on freedom of movement and possible control of the identity of persons without their knowledge.
GERMANY: The Federal Council has approved the proposal for a Council decision on the deepening of cross-border co-operation, in particular to combat terrorism and transnational crime is not advised. The corresponding convention was not sent to the Bundesrat.
The Federal Council's decision of the Council proposal on the conclusion of an Agreement between the European Communities and the United States of America on the processing of airline passenger data transfer rates and by the Fluggesell ties to the Bureau of Customs and Border Protection of the US Department of Homeland Security is not advise.
Il Consiglio federale del 21 settembre 2007 ha deciso contro questo progetto di legge di non sollevare obiezioni.
GREECE: Greece has agreed on the content of the relevant Draft Decision of the Portuguese Presidency, deeming implementation of relevant provisions as beneficial in general. Possible differentiations in the Greek Criminal Law will be examined by the Ministry for Justice, under the competence of which fall issues of transposing European acquis.
The transposition of the Directive 2004/82 (on the obligation of carriers to communicate passenger data) in internal Greek legislation is done in the form of a typical Presidential decree. The process of elaboration and signatures has not been completed yet due to the recent national general elections, but will soon be.
ITALY: On 30 October 2007 the Italian Council of Ministers approved four bills making up the so-called “security package”, draft legislation concerning adhesion to the Treaty of Prüm.
In accordance with Arts. 71 and 72 of the Constitution the bill will be presented to one House and, in line with parliamentary rules, will be examined by a committee and then by the House itself. It will be considered article by article and put to a final vote. It should be recalled that under Article 80 of the Constitution the Houses have to authorize the ratification of international treaties wherever they are political in nature, call for arbitration or legal settlement, involve changes in national boundaries, or financial obligations or changes to the Law. Objective of the legislation is to make Framework Decision 2002/465/GAl of 13 June 2002 operational at national level and implementing Italy’s undertakings at international level on the question of joint investigative units.
The matter is governed by the European Union and the United States on the processing and transfer of Passenger Name Records (PNR) by airlines to the United States’ Department of Homeland Security (DHS) (2007 PNR Agreement). Since it was not a “Mixed Agreement” it was concluded by the European Community without the participation of Member States. It can therefore enter into force upon simple notification by the two parties (US and EC) without national parliaments being involved in negotiations or at any other stage. There is no indication that the PNR question was debated in the Italian Parliament.
The Chamber of Deputies’ Constitutional Affairs Committee considered the draft Legislative Decree at its sitting of 4 April 2007 and, after having discussed its aims and provisions, gave a favourable opinion. The Senate’s Constitutional Affairs Committee, which met on 18 April 2007, also expressed itself in favour on condition that account be taken of some recommendations by the Guarantor for the Protection of Personal Data, which the Government included in its final adoption of the decree.
LITHUANIA: The European Affairs Committee of the Seimas of the Republic of Lithuania started taking active interest in the Treaty of Prüm back in the middle of 2006. On 14 February 2007 during the presentation of positions preceding the meeting of the EU Justice and Internal Affairs Council, the European Affairs Committee acknowledged the importance of the provisions under the Treaty of Prüm, drew attention to the particularly sensitive areas governed by the Treaty and took notice of the fact that exhaustive analysis is requisite.
The Lithuanian Parliament was not involved in the ratification process. Upon receipt of the request from the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament demanding the national parliaments to communicate which committee is responsible for the PNR issue in the context of the agreement between the EU and the US, and who is appointed to be rapporteur for the issue, the Committee decided to consider this issue in cooperation with the Legal Affairs Committee and the Committee on Human Rights and to nominate Mr. Arminas Lydeka, Deputy Chairman of the European Affairs Committee at the time, to be the committee rapporteur. This decision of the Committee was communicated to the representatives of the European Parliament.
THE NETHERLANDS: The Netherlands is one of the States party to the Treaty of Prüm. A bill approving the ratification of the Treaty is pending in the Senate at this moment. The Senate’s committee on Justice and the committee on the JHA-council have jointly posed questions to the Government on several aspects of the bill. The Council Decision referred to in the question, which is subjected to explicit approval of both Houses of the Netherlands Parliament, is included in the consideration of the bill. It is as yet unclear to what extent Dutch legislation will have to be amended because of the ratification of the Treaty of Prüm and the entry into force of the above mentioned Council Decision. Any changes will – on the basis of the bill approving the ratification of the Treaty – in due course be subjected to both Houses of Parliament.
The Senate is not a priori opposed to a European PNR-system. However, concrete proposals will be subjected to a substantial debate, both regarding the legal basis of such a system and the balance between the advantages and the need for protection of fundamental rights.
ROMANIA: Romania has consulted on the Convention on the stepping up of cross border cooperation, particularly in combating terrorism, cross border crime and illegal migration or on the Council Decision on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime.
Romanian Parliament was involved in negotiations with US. Also, requested to be involved in the ratification process. Deputies of European Parliament introduced an amendment to ensure that data collected under this Decision will not be transferred or made available to a third country or to any international organisation.
SWEDEN: The parliamentary Committee on Justice has held deliberations with the Minister for Justice on the issue of Council Decision on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime. It was noted that the representatives of the Social Democratic Party support the Government’s position prior to continued negotiations in all sections except those in which an adoption of a Council decision would mean transferring the exercise of official authority to another state. Whilst the representatives of the Left Party and the Green Party are opposed to the Government entering an agreement on the Council Decision.
UNITED KINGDOM: The House of Lords EU Committee undertook an inquiry into the draft Council Decision, and criticised the German Presidency for attempting to bypass the proper procedures in trying to incorporate the Prüm Treaty into EU law. The report was particularly critical of the fact that the German Presidency put forward the proposal without an explanatory memorandum, an impact assessment, or an estimate of the cost to Member States, and without time for proper consultation with the national Parliaments and the European Parliament (see 18th Report of Session 2006-07, Prüm: an effective weapon against terrorism and crime?). In the event, the UK government agreed to the proposed Council Decision in the absence of clearance from its national Parliament. The House of Lords EU Committee considers such scrutiny overrides a serious matter.
The most notable features of the draft Decision are the provisions giving Member States the right of access to the DNA, fingerprint and vehicle registration databases of other Member States and the provisions on the processing and protection of the data.
Why the Framework Decision on the exchange of information and intelligence between law enforcement authorities, which was adopted by the Council last December, does not make sufficient provision for police cooperation and why the incorporation of some of the provisions of the Prüm Treaty is needed in addition. The proposed data protection provisions are specific to and appropriate
for the data to be exchanged and processed under the Decision. They will come into effect before the Data Protection Framework Decision (DPFD) comes into force. Moreover, the DPFD will provide only general and minimum data protection standards for third pillar information.
The Government recognise the potential benefits of the proposed Decision on Prüm and it wishes that the realisation of those benefits should not be unnecessarily delayed, it would be preferable if the negotiations on the Data Protection Framework Decision were completed before agreement is reached on the data protection provisions of the Decision on Prüm.
POLAND: Poland is not a party of the Treaty of Prüm and was not involved in works on its acceptance; therefore the Sejm of Poland was not consulted on this issue. The Committee stated that it was necessary to allow a long period of time for the implementation of this decision.
According to the initial analysis, implementation of this decision to the Polish law will require: supplementation of existing provisions of acquiring and managing fingerprints data with provisions of this data exchange in the framework of cooperation stipulated by this decision; amendment of the Act on Road Traffic in the scope of allowing the possibility of data exchange with foreign subjects as well as an extension of the information collected by the Central Registrar of Vehicles and Drivers; amendment of the Act on Internal Security Agency and Intelligence Agency in the scope of allowing the possibility of data exchange with foreign subjects; and the adjustment of bilateral agreements for police cooperation. Also, a complex regulation of protection of personal data exchanged and processed during the cooperation is very important, along with the assurance of cohesion applied in the legal acts of the nomenclature.
REPUBLIC OF SLOVENIA: In accordance with Article 75 of the Foreign Affairs Act, treaties are ratified by the National Assembly. On 9 March 2007, the National Assembly discussed and adopted the Prüm Treaty and the Joint Declaration. Slovenia has been a full member of the Prüm Treaty since 8 August 2007. In principle, the National Assembly supports the orientations from the Proposal for a Framework Decision on the use of passenger data (PNR) for prosecution purposes. The draft dates November 2007 and will need to be thoroughly examined, taking into account also the interests of privacy, the principle of proportionality and the interests of the fight against terrorism and organised crime. Slovenia already presented a parliamentary reservation to such proposal as it believes that significant national legislative amendments are necessary in case of its adoption, which requires prior consultations with the relevant parliamentary committee.
Prospects and limits of European and national criminal law
BELGIUM: Not reached.
BULGARIA: The Parliament believes that the draft Reform Treaty contains, inter alia, a new framework regarding the criminal policy or the European Union, which will be implemented within the framework of the creation of an area of freedom, security and justice that the Union will offer its citizens. In its opinion, reforms in several key areas are likely to be most substantial:
• Transcending the pillar architecture of the EU and the delimitation of areas falling under the exclusive and shared competence of the EU and the Member States, which leads, apart from a simplification of the system, also to a change of the procedural and institutional framework of its operation;
• Introduction of the directive as a legislative instrument on matters concerning judicial co-operation in criminal matters;
• Application of the ordinary legislative procedure in the exercise of the co-decision power of the Council and the European Parliament to adopt acts in this area (Article 2, paragraph 67 of the Draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community), which will increase the effectiveness, transparency and accountability in the legislative procedures;
• Conferring on the Court of Justice of the European Union jurisdiction on questions concerning judicial co-operation in criminal matters by providing for a procedure for imposition of a lump sum or penalty payment on Member States for failing to fulfil their obligations under the Treaties (infringement procedure), which will ensure due transposition of Community legislation and its implementation (Article 2, paragraph 212 of the Draft Treaty).
The results of the First Review of the Hague Programme face the EU and the Member States with challenges which should be met in response to Union citizens’ clearly declared expectations that the security of Europe be safeguarded while, at the same time, the exercise of their individual rights be fully guaranteed. It believe that the future work on questions concerning EU criminal policy should focus, to a greater degree, on the drafting of more comprehensive acts with an ex-ante impact assessment, as well as the taking of a horizontal approach to certain questions concerning the harmonisation of the legislation of Member States, where necessary.
Bulgarian legislation is in harmony with the Proposal for a Directive of the European Parliament and of the Council amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons. The proposed amendments envisage regulation of the subject matter of Directive 91/477 in accordance with the provisions of the UN Firearms Protocol. Bulgaria ratified the Protocol by an Act promulgated in the State Gazette No. 63 of 28 June 2002.
CYPRUS: The House of Representatives has no official position on the matter.
CZECH REPUBLIC: The Senate is highly interested in the area of EU criminal policy and considers it to be an important issue where the role of national parliaments in scrutiny is indispensable. In its recent resolutions the Senate was rather cautious toward the idea of communitarization of EU criminal policy and police cooperation.
As regards the Reform Treaty, the Senate considers the extension of qualified majority voting over the area of Europol’s coordination, organizational and operative role (Article 69k) as a serious problem. The Senate had recently delivered a resolution on the change of legal basis of Europol, where it had called for unanimity in this area.
FINLAND: The Committee stated, inter alia, that the EU provisions in the area of criminal law should leave enough room for manoeuvre for the national criminal policy. It should be possible for the Member States to maintain the fundamentals of their respective criminal law systems. The criminal policy at the EU level should be deleloped on the basis of research information. Instead of severe punishments the EU legislator should accentuate a broadly-based approach and prevention of crime.
Moreover, the Finnish Parliament has on many occasions been very doubtful whether it is possible to include criminal law provisions in the first pillar instruments. These doubts have been raised, for instance, in the following opinions of the Legal Affairs Committee:
- the opinion on the Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (LaVL 21/2006 vp);
- the opinion on the Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law (LaVL 5/2007);
- the opinion on the Proposal for a Directive of the European Parliament and of the Council providing for sanctions against employers of illegally staying third-country nationals (LaVL 11/2007 vp).
FRANCE: It adopted conclusions on the Green Paper of the European Commission on this issue, setting a frame-General on the long-term objectives of the criminal policy of the Union. The delegation has estimated that in the field of criminal sanctions, mutual recognition should be preferred over the harmonization in accordance with the principles of subsidiarity and proportionality. She supported the creation of a European criminal record, as well as consideration in the criminal courts of criminal convictions handed down in other Member States.
In this context, it has approved in its meeting on 20 March 2007, the draft framework decision on the organization and content of the exchange of information extracted from criminal records between Member States (COM (05) 690, on March 20, 2007), which ensures that the Member State of nationality of those convicted have updated information on convictions in another Member State and to provide the framework for building and developing a system of information exchange on convictions based on a European standard “format.”
She supported an approximation of laws relating to financial penalties in the field of economic crime, taking into account the effectiveness of these sanctions against legal persons.
The Delegation for the European Union to the National Assembly approved in its meeting of 20 March 2007 the proposal for a directive of the European Parliament and the Council COM (06) 93 amending Directive 91/477/EEC Council on the control of the acquisition and possession of weapons, which will have only a marginal impact on the French legislation, which already meets most of its requirements.
GERMANY: Concerning the proposed directive on the control of the acquisition and possession of weapons, the Bundesrat in his opinion of 7 July 2006 individual aspects expressed (recording of weapons of category D in the arms trade book, uniform standards for the technical procedures for disablement of firearms, quality standard for technical procedures for preventing the restoration of functioning made unusable weapons).
On the proposed directive on the protection of the environment, the Federal Council on 30 March 2007 a detailed opinion and his decision to the Commission directly concerned. He reiterated his position in the opinion of 10 February 2007
GREECE: For a start, “penal or criminal sovereignty” falls within the frame of an intergovernmental partnership and community jurisdiction in the field of criminal law is indirectly exercised by member-states. Intergovernmental cooperation is rightly governed by the Principle of Availability, which entails that information available to certain authorities of a given member-state, should be made available to the competent authorities of another given member-state.
Closing, the Hellenic Parliament is certainly interested in participating in an inter-parliamentary field of cooperation, elaborating upon issues concerning the fields of Freedom, Security and Justice.
ITALY: Given the growing transnational dimension of many of the most serious contemporary criminal phenomena, particularly organized forms of crime, there is an ever more pressing need to devise up-to-date instruments for cooperation in this field.
Basically, this would involve giving the Union the task of identifying a series of penal paradigms considered to be penally relevant at European level. These might include offences relating to terrorism for example, or organized crime, drugs trafficking, human trafficking, sexual exploitation of women and children, arms trafficking, money laundering, corruption, forgery and computer crime. The aim would be to determine appropriate sanctions for each one.
A further doubt concerns the fact that the power of determining penal sanctions and overseeing their application is one of the main prerogatives of a sovereign nation. And although the debate involves only a limited aspect of penal law, that relating to transnational crimes, questions have been raised as to the wisdom of allowing countries to despoil themselves of such powers and to transfer them to European institutions. It is noted, however, that the draft Constitution for Europe had offered the possibility of using framework laws to establish minimum norms on the elements constituting penal offences and the penalties applicable thereto whenever bringing respective legal systems closer together was held to be essential in order to effectively implement Union policies in areas already subject to harmonization.
LITHUANIA: On 14 November 2007 the Committee on European Affairs of the Seimas of the Republic of Lithuania held a discussion called Prospects of European Criminal Law; Lithuanian Approach. Members of the Seimas were informed that ECJ had confirmed a general rule that neither criminal law nor the rules of criminal procedure fall within the Community’s competence.
It was stated that the development of European criminal law after the new Reform Treaty will bring cooperation in criminal law matters into Community decision-making structures, with co-decision and will considerably affect the EU and Member States' criminal law. Therefore, it is important to define and delimit the policy and the position Lithuania should follow when faced with this trend. Seimas needs to decide whether it should assess every proposal individually or agree on a certain methodology, a certain framework, and a certain system allowing us to assess whether a particular proposal meets the interests of Lithuania or not.
THE NETHERLANDS: The EC/EU should refrain in any case, as was recently specified by the Court of Justice of the European Communities in case C-440/05, to specify the type and level of criminal penalties in legislative instruments. Regarding the enforcement of EU criminal policies in the future, parliamentary supervision (either by the national parliaments or the European Parliament) should be assured at all times.
ROMANIA: The future of EU criminal justice is to making mutual recognition work. The Reform Treaty is designed to make the European Union function more effectively and democratically so that it can better serve the interests of the people of Europe.
Romania’s legislation on intellectual property rights is, for the most part, in alignment with the European Union as well as with international sector standards. Romania is a founding member of the World Intellectual Property Organization and has adhered to almost all on intellectual property statues binding World Trade Organization member states. Romania also made several modifications of its criminal code, one of which became effective July 2004, and others, which will become effective on September 2006 and September 2008, respectively.
SWEDEN: No position adopted by the Parliament as such.
UNITED KINGDOM: The House of Lords EU Committee is undertaking an inquiry into the Reform Treaty, including its implications for the development of EU criminal law. The report is due to be published in early March 2008.
POLAND: The Sejm has not taken a position yet, which reflects the position of the all Chamber insofar. It is worth underlining that on 15th June 2007, the Sejm of the Republic of Poland adopted a resolution on negotiation of a new treaty on European Union. The Sejm expressed inter alia its conviction that a new treaty on European Union shall be a compromise that will strengthen and facilitate the European Union and at the same time guarantee a strong position for Poland reflecting the Polish potential.
REPUBLIC OF SLOVENIA: The aim of judicial cooperation in the EU is to provide a high level of security for all its citizens. Here, the efforts towards mutual recognition should be further pursued as the main principle adopted by the European Council in Tampere. It is necessary to continue the work initiated in the field of mutual recognition of court decisions and the Member States' efforts to establish the area of freedom, security and justice. All this should provide for an efficient fight against crime in general, particularly against serious criminal offences, organized crime and terrorism.
on interparliamentary cooperation
BELGIUM: Not reached.
BULGARIA: Aware of the need of building and maintaining a reliable database of all documents related to the Area of Freedom, Security and Justice, and mindful of the importance of such a database for making correct decisions and conducting an active policy at the national level, the Bulgarian Parliament declares its readiness to take part in the implementation of this project.
CYPRUS: The House of Representatives would be interested in receiving more information on this project.
CZECH REPUBLIC: The Senate will support enhanced practical parliamentary cooperation in the area of FSJ, as it considers this area to be a very important part of European integration. We would be very glad to learn in more detail about the specifics of the plan on building of the interparliamentary working area.
FINLAND: In its opinion, no new system is needed. It considers it expedient to include this kind of information in the IPEX.
FRANCE: The Delegation for the European Union to the National Assembly wish to participate in the creation of an interparliamentary working space for sharing best practices and evaluation data collected by national parliaments within the framework of the evaluation of the area of freedom, security and justice. The website IPEX, which identifies the particular position of national parliaments in conformity with the principles of subsidiarity and proportionality proposals for European acts, could provide a suitable vehicle.
GERMANY: The Federal Council is the principle of participation in the project.
GREECE: Not reached.
ITALY: Not reached.
LITHUANIA: The Seimas of the Republic of Lithuania is interested in taking part in an interparliamentary working area dealing with the policies of the Area of Freedom, Security and Justice.
THE NETHERLANDS: The Dutch Senate is already actively participating in the IPEX project. All initiatives under scrutiny are posted on the IPEX website, as are links to important documents or dossiers on the Senate’s own European website (www.europapoort.nl). The Senate is therefore not an advocate of a new, separate initiative. To avoid double work, as well as to improve the quality of and familiarity with the IPEX website, it would be better to structure the interparliamentary cooperation in all fields – including the FSJA – on that site. For the rest, were such an initiative to be successful, it is most important that all parliaments commit themselves to kee
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