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Conseil Justice et Affaires intérieures des 5 et 6 juin 2008

pdf mise en ligne :05 11 2008 ( NEA say… n° 51 )


JHA COUNCIL on JUNE 5th-6th 2008






Schengen Information System (SIS)

The Mixed Committee took note of the current state of play and of a new schedule for implementing the second generation of SIS (SIS II).  In accordance with the schedule, the date for migration from SIS1+ to SIS II is foreseen for September 2009. The schedule was afterwards adopted by the Council without discussion (see page 21).


Return of illegally staying third-country nationals

The Mixed Committee expressed support for an overall compromise on the proposal for a Directive of the European Parliament and of the Council on common standards and procedures in member states for returning illegally staying third-country nationals, the "Return directive" (see also page 9).


Other business

The Mixed Committee took note of a common letter of the Minister of Foreing Affairs of Hungary, Poland and the Slovak Republic on the sate of implementation of the local border traffic regulation 1931/2006. The Greek delegation gave additional information concerning the difficulties that their country is facing as a result of illegal immigration and on how they are dealing with asylum applications.



The Council confirmed the support given by the Mixed Committee to an overall compromise on the proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (the "Return Directive").

The Presidency will inform the Parliament about the content of this compromise. The Council hopes that an agreement in first reading with the European Parliament will be possible on this basis.


This Directive will establish a common set of rules applicable to third-country nationals staying illegally in the territory of Member States, irrespective of which Member State. The Directive will ensure a more harmonised and effective approach to return procedures on the part of Member States while respecting the rights of third-country nationals in an illegal situation.

This Directive follows from the need to have common rules on returns as a result of the development of Europe as an area without internal borders and with a common immigration policy. The Directive will leave unaffected the procedural and substantive safeguards for asylum seekers, regulated in another Directive.

The Directive makes special provision for vulnerable persons including in particular unaccompanied minors.

Other important features of the Directive include the following:

The ending of the illegal stay of non-EU nationals will be carried out through a fair and transparent procedure which sets out the rights for illegally staying persons facing return.

The decisions which will be taken under this Directive will be adopted on a case-by-case basis and will be based on objective criteria.

The Directive provides for a return decision to be issued for any third-country national staying illegally in the territory of a Member State subject to certain exceptions (e.g. where an autonomous residence permit or other authorisation to stay is granted for compassionate, humanitarian or other reasons).

The return decision will impose an obligation on the third-country national staying illegally to leave the territory of the Member State concerned. Persons to whom a return decision have been issued will be allowed the opportunity to leave voluntarily unless there are specific grounds which preclude the granting of such a period such as a risk that the third‑county national concerned will abscond.

Detention will only be permitted where other less coercive measures cannot be applied in the case and will require a decision in writing with reasons in fact and in law.

Detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress. It shall be subject to reviews by a judicial authority at reasonable intervals.

The maximum period of detention will be limited to six months (with the possibility of extending it for a further twelve-month period in specified circumstances e.g. due to lack of co-operation by the third-country national). When it appears that a reasonable prospect of removal no longer exists detention will cease to be justified and the person concerned will be released.

Detention will be carried out as a rule in specialised detention facilities.

The draft Directive deals with key issues in the policy of return such as the voluntary departure of returnees, the execution of a return decision through a removal procedure, the postponement of removal, the imposition of entry bans as accompanying measure to a return decision, the form of the return decision, the remedies against a return decision and the safeguards for a returnee pending return, the possibility of an accelerated procedure for return in certain cases and the detention of returnees and its conditions.

This proposal was submitted by the Commission in 2005 and has been examined at length, under successive presidencies. It is to be adopted in co-decision with the European Parliament.



The Council held a debate on this proposal which aims at amending Directive 2003/109/EC with a view to extending the possibility of obtaining the long term resident status to beneficiaries of international protection.

The debate focused on the scope of the Directive.

A majority of delegations could support the inclusion of both refugees and beneficiaries of subsidiary protection in the scope of the directive, without any difference of treatment between the categories. But some delegations argued for a broader scope of the directive to include other forms of protection granted by member states, while others were in favour of limiting the scope to refugees only.

The Presidency, noting that the necessary unanimity to adopt the directive could not be obtained today, concluded that the negotiations on this file should continue under the French Presidency.

Council Directive 2003/109/EC determines the status of third-country nationals who are long-term residents (residing more than 5 years in a member state). At the time of the adoption of this directive, the Council welcomed the Commission commitment to follow it up with a proposal for the extension of long-term resident status to refugees and persons benefiting from subsidiary protection. The new Commission proposal, presented in June 2007, responds to this commitment.



At the initiative of the German delegation, the Council held an exchange of views on the resettlement of refugees from Iraq in the European Union. The Council expressed concern about the humanitarian situation of displaced persons inside Iraq and Iraqi refugees in neighboring countries while acknowledging the heavy burden being placed on those countries.

Ministers underlined that protection should continue to be provided primarily in the region itself in order to facilitate the return of refugees and internally displaced persons to their homes. They welcomed the contributions which Member States are already providing by giving financial assistance to the region, by hosting asylum seekers and refugees from Iraq and by resettling refugees under national programmes. In particular, Member States were, encouraged to increase or create, on a voluntary basis, resettlement opportunities for vulnerable persons from Iraq in need of protection.

Member States were asked to cooperate with UNHCR and other relevant organizations and actors in the region in the implementation of resettlement. The Commission was invited to examine the possibilities for the resettlement of Iraqi refugees to be funded under existing programmes.

The Council noted that many Member States expressed their readiness to offer or to further explore resettlement opportunities for Iraqi refugees. The Council will continue the discussion on this issue under the French Presidency.




The Council reached a general approach on a decision laying down the necessary administrative and technical provisions for the implementation of a decision on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (the "Prüm decision").

The "Prüm decision", agreed by the council on June 2007, is designed to improve the exchange of information between authorities responsible for the prevention and investigation of criminal offences.

To this end, the decision contains rules in the following areas:

  • on the conditions and procedure for the automated transfer of DNA profiles, dactyloscopic data and certain national vehicle registration data,
  • on the conditions for the supply of data in connection with major events with a cross-border dimension,
  • on the conditions for the supply of information in order to prevent terrorist offences, and
  • on the conditions and procedure for stepping up cross-border police cooperation through various measures.

The implementing decision establishes those common provisions which are indispensable for administrative and technical implementation of the forms of cooperation set out in the Prüm decision, especially for automated exchange of DNA data, dactyloscopic data and vehicle registration data.




The Council held a debate on counter-terrorism on the basis of a report presented by the EU Counter-terrorism coordinator (CTC), Mr Gilles de Kerchove. The Council appreciated the analysis made by the CTC and shared his views on the proposals that he made to concentrate work in the coming months on the prevention of radicalisation and on the identification of technical assistance to Northern Africa/Sahel and Pakistan.

The Council also invited the Commission to present its announced communication on radicalisation as early as possible. The EU CTC's report, which is a response to the European Council's request for a report every six months, summarises progress since December 2007 and the state of play regarding ratification of the conventions and implementation of the legislative acts regarded as having priority (document 9416/1/06).

The CTC's priorities for further action in the field of EU counter-terrorism are set up in document 9417/08 and relate, in particular to information sharing, the issue of radicalisation, and the technical assistance to non-EU countries.

In December 2005 the European Council adopted the European Counter-Terrorism Strategy, which has provided the framework for EU activity in this field.[1] The strategic commitment of the Union is to combat terrorism globally while respecting human rights, and to make Europe safer, allowing its citizens to live in an area of freedom, security and justice. The Strategy groups all actions under four headings - PREVENT, PROTECT, PURSUE, RESPOND. The Revised Action Plan follows this pattern, with the objective of setting out clearly what the EU is trying to achieve and the means by which it intends to do so.



Pending the lifting of a Parliamentary reservation, the Council reached a general approach on a draft agreement between the European Union and Australia on the processing and transfer of EU-sourced passenger name record (PNR) data to the Australian Customs Service (document 9127/2/08).

On 28 February 2008 the Council decided to authorise the Presidency, assisted by the Commission, to open negotiations for this agreement. Those negotiations have been successful and a draft agreement has been drawn up.

The agreement contains detailed assurances for the protection of PNR data transferred from the EU concerning passenger flights to or from Australia.

Australia and the EU will periodically review the implementation of the agreement, so as to allow them, in the light of such a review, to take any action deemed necessary.





The Hague Convention of 1996 on the international protection of children

The Council adopted a decision authorising Belgium, Germany, Ireland, Greece, Spain, France, Italy, Cyprus, Luxembourg, Malta, the Netherlands, Austria, Poland, Portugal, Romania, Finland, Sweden and the United Kingdom to ratify, or accede to, in the interest of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of parental responsibility and measures for the protection of children (7573/08).

The decision also authorises certain member states to make a declaration on the application of the relevant internal rules of Community law.


Judicial cooperation in civil matters - External relations strategy

The Council agreed on external relations strategy in the field of judicial cooperation in civil matters, with the aim of updating the general framework for the strategy and to ensure its effective implementation.

The document is not a legal framework but rather an evolving process of defining and achieving policy objectives in full conformity with the provisions of the EC Treaty.

In The Hague Programme  the European Council called for the development of a strategy reflecting the Union's special relations with third countries, groups of countries and regions and focusing on the specific needs for JHA cooperation with them.

In April 2006 the Council approved a strategy document outlining aspects of judicial cooperation in civil matters (8140/06). As indicated in this document, the development of an area of freedom, security and justice can only be successful if it is underpinned by a partnership with third countries on these issues which includes strengthening the rule of law and promoting respect for human rights and international obligations.


Recognition and enforcement of judgments in civil and commercial matters

The Council adopted a decision approving the conclusion of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which will replace the Lugano Convention of 16 September 1988 (9196/08).




Further development of the SECI centre - Council conclusions

The conclusions can be found in document 9395/08.


Cooperation on organised crime, corruption, illegal immigration and counter-terrorism

The Council to took note of the second report on the state of implementation by member states and EU bodies of the action-oriented paper on improving cooperation on organised crime, corruption, illegal immigration and counter-terrorism between the EU, the Western Balkans and relevant European Neighbourhood Policy countries.


Report on fight against organised crime

The Council took note of a report on the state of implementation by member states and EU bodies of EU priorities for the fight against organised crime based on Europol's 2007 Organised Crime Threat Assessment (OCTA). The Council sets such priorities every two years. The current priorities having been decided in June 2007 (7547/3/0) and it will adopt its next conclusions on this topic in 2009. Implementation of the priorities, however, is monitored annually.


European Crime Prevention Network (EUCPN) Annual report 2007 - Council conclusions

The conclusions can be found in document 9945/08.


Assistance to produce a common threat assessment on organised crime for South East European region - Council conclusions

The conclusions can be found in document 9731/08.



Application of the European Arrest Warrant - Evaluation report

The Council took note of a report on the first seven evaluation visits carried out in Ireland, Denmark, Belgium, Estonia, Spain, Portugal and the United Kingdom within the framework of the fourth round of mutual evaluations on the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States.

It decided to forward it to the European Parliament for information.




European critical infrastructure

The Council reached a political agreement on a directive on the identification and designation of European Critical Infrastructure (ECI) and the assessment of the need to improve their protection (9403/08).

The directive establishes the necessary procedure for the identification and designation of ECI and a common approach to the assessment of the needs to improve the protection of such infrastructure in order to contribute to the protection of people. The directive concentrates on the energy and transport sector and will be reviewed after three years, in order to assess its impact and the need to include other sectors within its scope, such as the Information and Communication Technology (ICT) sector.

"European Critical Infrastructure" are those assets, systems or parts thereof located in EU member states which are essential for the maintenance of vital societal functions, health, safety, security, economic or social well-being of people (e.g. electricity, gas and oil production, transport and distribution ; telecommunication ; agriculture ; financial and security services ; etc.), and the disruption or destruction of which would have a significant impact on at least two EU member states.

Critical infrastructure industries are becoming more and more interdependent as the economic, technological, and social processes of globalization intensify. Therefore, the damage or loss of a piece of infrastructure in one member state may have negative effects on several others and on the European economy as a whole. Because of this trans-boundary dimension, an integrated EU-wide approach would complement and have an added value to the already existing national programmes for critical infrastructure protection in place in the member states.



Cooperation with the candidate countries and potential candidate countries of the Western Balkans in the field of Civil Protection

The conclusions can be found in document 9199/08.




EU/Antigua and Barbuda, the Bahamas, Barbados, Mauritius, Saint Kitts and Nevis, and the Seychelles - Visa agreements

The Council adopted decisions authorising the Commission to open negotiations for the conclusion of short-stay visa waiver agreements between the European Community and Antigua and Barbuda, the Bahamas, Barbados, Mauritius, Saint Kitts and Nevis, and the Seychelles.



Cooperation between Europol and Eurojust

The Council adopted the following statement on the cooperation between Europol and Eurojust:

"The Council urges Europol and Eurojust to prepare amendments to their cooperation agreement, before the end of 2008, including in particular the mutual exchange of information necessary for the achievements of the tasks of Europol and Eurojust and in keeping with their respective legal frameworks.

These amendments should include:


a) Enhancing the possibility for Eurojust to request Europol to open, in accordance with the Europol legal framework, an Analytical Work File.


b) Formalising the circumstances under which :

i) Europol provides Eurojust with results of Analytical Work Files. This information should in particular include strategic analysis and results that may need a judicial follow up.

ii) Eurojust participates in AWFs


c) Formalising the circumstances under which Eurojust provides Europol with information for the purpose of its AWFs, as well as other information and advice which may be required for the tasks of Europol

The Council further decides that a Task Force should be set up by the Presidency, under its responsibility, to assist Europol and Eurojust in preparing the above mentioned amendments. The Commission shall form part of the Task Force. The Presidency shall report on progress on this item to the Article 36 Committee during the French Presidency."



Possible cooperation mechanisms between civilian ESDP missions and Europol as regards the mutual exchange of information - Council conclusions

The conclusions can be found in document 9657/08.



EUROPOL Budget for 2009 - Financing plan 2009-2013

The Council endorsed the Europol budget for 2009 (7802/08). Europol budget for 2009 amounts to EUR 65.4 million (EUR 63.9 million in 2008).

The Council took also note of the Europol financing plan for 2009-2013 (7803/08) and decided to forward them to the European Parliament for information.



SIS II global schedule

The Council endorsed the Schengen Information System (SIS) II global schedule that will allow all sides - Schengen states, non-Schengen states and the Commission - to prepare their planning for the further development and start of the operations of the SIS II.


Schengen evaluation - Council conclusions

The Council adopted the following conclusions:

"The Council of the European Union:

a)         Confirming the Schengen Evaluation Working Party's mandate as laid down in SCH / ex-COM (98) 26 def. and striving for a more integrated approach towards Schengen evaluations;

b)         Welcoming the enlargement of the Schengen area to 24 Member States, resulting in a vast area stretching from the Atlantic Ocean to the Baltic Sea;

c)         Considering the new challenges of the European space in the field of security and the new threats linked to (the development of) increasing immigration pressure, organised crime and terrorism;

d)         Reaffirming the need to continue evaluations of Schengen candidate states prior to their entry into the Schengen area and to render the Schengen Evaluation Working Party's working methods and activities more efficient as regards ensuring the correct application of the provisions of the Schengen acquis by the Member States;

e)         Having regard to the objective of the Hague Programme concerning the new instrument which is to be proposed by the Commission to supplement the existing Schengen evaluation mechanism,

Has adopted the following conclusions:

1.         The evaluation of Schengen candidate countries shall continue according to the existing mandate (SCH/ex-COM (98) 26 def.) to ensure that they fulfil all the necessary conditions prior to the full application of the Schengen acquis.

2.         The evaluation of the correct application by Member States of the Schengen acquis shall be organised by way of:

"classic" evaluations on a country-by-country basis, starting with those Member States which have not been evaluated for a number of years and which require evaluation of all parts of the Schengen acquis;

supplementary thematic and/or regional evaluations involving one or more Member States or regions based on risk analyses (provided by relevant stakeholders, such as FRONTEX, EUROPOL, the Member States and the Commission).

3.         To this end, an indicative five-year programme of continued "classic" evaluations of Member States already applying the Schengen acquis shall be adopted.

4.         A supplementary thematic and/or regional evaluation schedule supported by and reflecting analyses of relevant stakeholders can be adopted as part of the programme of each Presidency.

5.         A full or partial evaluation of Member States' public authorities which are responsible for the application of the Schengen acquis and which have undergone a fundamental reorganisation can also be adopted as part of the Scheval programme of each Presidency.

6.         The Multi-Presidency Proposal for a Schengen Evaluation Programme (doc. 6949/3/08 REV 3 SCH-EVAL 11 COMIX 160), approved by the Schengen Evaluation Working Party, shall serve as the basis for planning the Working Party's evaluation activities for the next five-year period. This document can be updated and/or amended depending on future developments, including developments with regard to the instrument to be proposed by the Commission to supplement the existing Schengen evaluation mechanism in accordance with the Hague Programme."


Application of SIS in Switzerland

The Council approved a decision on the application of the provisions of the Schengen acquis relating to the Schengen Information System (SIS) in Switzerland (9059/08).

The decision allows for real SIS data to be transferred to Switzerland (from 9 June 2008), and allows Switzerland to enter data into the SIS and use SIS data (from 14 August 2008).

The concrete use of data by Switzerland will allow the Council to verify the correct application of the Schengen acquis provisions relating to the SIS (this evaluation is scheduled at the end of August or beginning of September 2008).

The lifting of checks at internal borders with Switzerland is foreseen for the end of 2008. Until this date, Switzerland is not would not be obliged to refuse entry on its territory to or to expel nationals of third states for whom an SIS alert has been issued by a member sta