The EU Area of Freedom, Security and Justice in the Wider World

Asser Round Table

On

The EU area of Freedom, Security and Justice in the wider world:

Implementing the external dimension of

The Stockholm Programme

In cooperation with

The Centre for the Law of EU External Relations (CLEER)

Supported by

The Dutch Ministry of Justice

Friday 5 February 2010, T.M.C. Asser Instituut, The Hague(NL)

Programme

09:00 – 09.30Registration, coffee/tea

09.30– 09.35Opening by Mr. Dr. Rob Visser (Director General of the Ministry of Justice of The Netherlands)

09.35 – 09.40Welcome: Professordr. Frans Nelissen, DirectorT.M.C. Asser Instituut

09.40 – 09.55Speech of HE Dr. E.M.H.Hirsch Ballin, Dutch Minister of Justice

First topicBasic principles of mutual legal assistance agreements and extradition of the Union with third countries

10.00 – 10.20Professor Valsamis Mitsilegas (Professor of European Criminal Law at Queen Mary, University of London)

10.20 – 10.40Mr. Peter Csonka (Head of the Unit “Criminal Justice”, European Commission, DG Freedom, Security and Justice)

10.40 – 11.10Discussionschaired by Professor Dr. John A.E. Vervaele (Director G.J. Wiarda Instituut, Law Faculty University of Utrecht)

11.10 – 11.35 break

Second topicCombating illegal immigration: returning illegally staying third country nationals while cooperating with and assisting transit countries and countries of origin

11.35 – 11.55Professor Dr. Philippe De Bruycker (Professor Immigration Law at the Free University of Brussels)

11.55 – 12.15Mr. Peter Bosch (Deputy Head of the Unit B3 "International aspects of migration and visa policy”, Directorate Immigration and Asylum at DG Freedom, Security and Justice)

12.15– 12.45Discussions chaired byDr. Hans Nilsson(visiting professor College of Europe and Head of Division Council secretariat)

12.45 – 14.15Lunch

Afternoon Session

Third topicData protection clauses in international agreements of the Union: striking the right balance between the demand for data for law enforcement purposes and the protection of privacy

14.15 – 14.35ProfessorDouwe Korff (Professor of International law at London Metropolitan University)

14.35 – 15.05Mr. Hielke Hijmans (Coordinator European Data Protection Supervisor)

15.05 – 15.35Discussions chaired by Mr. Julian Schutte (Director Legal Service EU Council Secretariat)

15.35 – 16.00break

16.00 – 16.20Brief conclusions and suggestions for further debate by themoderators: ProfessorJohn Vervaele, Dr. Hans Nilsson and Mr. Julian Schutte

16.20 -17.00Round table discussion

17.00 – 17.30Closing reception

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Speakers and discussants

Peter Bosch works for the European Commission, DG Freedom, Justice and Security as deputy Head of the Unit dealing with the international aspects of migration and visa policy. He is responsible for the development of the European policies in these domains. He contributed to various Commission Communications and was involved in the development of the European Pact on Immigration and Asylum, adopted by the European Council under the French Presidency. He was also involved in preparing the Stockholm programme, the 5-year plan for the development of EU policies in the area of Justice, Freedom and Security adopted in December 2009.

Peter Csonka is Head of Unit “Criminal Justice”, DG Freedom, Security and Justice at the European Commission.

Philippe DE BRUYCKER (Phd in Law from Brussels University) is Professor at the Institute for European Studies and the Law Faculty of the Université Libre de Bruxelles (U.L.B. in Belgium) where he teaches Immigration and Asylum Law and Policy of the European Union, Free movement of European Citizens, Belgian Aliens Law, European Community Law and International Immigration and Asylum Law.

Hielke HIJMANS is, as from October 2004, Coordinator for Legislative Consultations Team and for Court Proceedings at the European Data Protection Supervisor (EDPS). This task includes representing the EDPS before the Court of Justice. Issues he worked on include proposals in the area of police and judicial cooperation, the Stockholm Programme and the future of the data protection Directive 95/46.

Douwe Korffisa Dutch comparative and international lawyer, Professor of International Law at London Metropolitan University, London (UK), and a leading human rights- and data protection expert. His extensive work in the field of data protection includes half a dozen studies for the EU Commission, including a comparative report on implementation of the main EC directive on data protection in the EU15 (2003).

Valsamis Mitsilegas is Professor of European Criminal Law at Queen Mary, University of London. From 2001 to 2005 he was legal adviser to the House of Lords European Union Committee. His interests and expertise lie primarily in the area of EU law, in particular EU Justice and Home Affairs (including immigration, asylum and border controls, criminal law, police and judicial co-operation in criminal matters and the external dimension of EU action in these fields).

Mr Hans Nilsson holds a law degree (1979) from Uppsala University in Sweden. He has worked as a judge at the Court of Appeal in Jönköping, Sweden before entering private practice. In 1996, he was appointed to his current position as Head of the Division of Judicial Cooperation at the Council of the European Union in Brussels. In March 2009, he joined the Swedish Permanent Representation as Minister and Head of the JHA Counselors to head a team of Counselors dealing with the Swedish Presidency until 31 December 2009. He was also responsible for the negotiations in Brussels for the Stockholm Programme on behalf of the Presidency.

Julian Schutte is Director Legal Service EU Council Secretariat.

John Vervaeleis Professor in criminal law and criminal procedure at the Utrecht School of Law with more than 25 years of experience. His research and teaching focus on criminal procedure, European criminal law, human rights and comparative criminal procedure. His professional experience includes time spent at the Belgian Ministry of Justice and several visiting professorships in Europe, the US and Latin America.

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Conference Reader

A)Extracts from the Stockholm Programme-General aspects on the external dimension of the AFSJ

7. Europe in a globalised world – the external dimension of freedom, security and justice[1]

The European Council emphasizes the importance of the external dimension of the EU's policy in the area of freedom, security and justice and underlines the need for the increased integration of these policies into the general policies of the European Union. The external dimension is crucial to the successful implementation of the objectives of this programme and should in particular be fully coherent with all other aspects of EU foreign policy.

7.1 A reinforced external dimension

The European Council has decided that the following principles will continue to guide European Union action in external relations in the area of freedom, security and justice in the future:

- The Union has a single external relations policy,

- The Union and the Member States must work in partnership with third countries,

- The Union and the Member States will actively develop and promote European and international standards,

- The Union and the Member States will cooperate closely with their neighbours,

- The Member States will increase further the exchange of information between themselves and within the Union on multilateral and bilateral activities,

- The Union and the Member States must act with solidarity, coherence and complementarity,

- The Union will make full use of all ranges of instruments available to it,

- The Member States should coordinate with the Union so as to optimise the effective use of resources,

- The Union will engage in information, monitoring and evaluation, inter alia in collaboration with the European Parliament,

- The Union will work with a proactive approach in its external relations.

The European Council considers that the JLS policies should be well integrated into the general policies of the Union. The adoption of the Lisbon Treaty offers new possibilities for the European Union to act more efficiently in external relations. The new High Representative, who is also a Vice President of the Commission, the European External Action Service and the Commission will ensure better coherence between traditional external policy instruments and internal instruments with significant external dimensions, such as freedom, security and justice. Consideration should be given to the added value that could be achieved by including specific JLS competence in EU delegations in strategic partner countries. Furthermore, the legal personality of the Union should enable the Union to act with increased strength in international organisations.

7.3 Continued thematic priorities with new tools

The European Council considers that the key thematic priorities identified in the previous strategy remain valid, i.e. the fight against terrorism, organised crime, corruption, drugs, the exchange of personal data in a secure environment and managing migration flows. The fight against trafficking in human beings and smuggling of persons needs to be stepped up.

Building on the Strategy for Justice, Home Affairs and External Relations adopted in 2005 and other relevant acquis in this field, such as the Global Approach to Migration, EU external cooperation should focus on areas where EU activity provides added value, in particular:

- Migration and asylum, with a view to increasing EU dialogue and cooperation with countries of origin and transit in order to improve their capacity to carry out border control, to fight against illegal immigration, to better manage migration flows and to ensure protection as well as to benefit from the positive effects of migration on development; return and readmission is a priority in the EU’s external relations,

- Security, by engaging with third countries to combat serious and organised crime, terrorism, drugs, trafficking in human beings and smuggling of persons, inter alia by focusing the EU’s counter-terrorism activities primarily on prevention and by protecting critical infrastructures, Internal and external security are inseparable. Addressing threats, even far away from our continent, is essential to protecting Europe and its citizens,

- Information exchange that flows securely, efficiently and with adequate data protection standards between the EU and third countries,

- Justice, to promote the rule of law and human rights, good governance, fight against corruption, the civil law dimension, promote security and stability and create a safe and solid environment for business, trade and investment,

- Civil protection and disaster management, in particular to develop capacities of prevention and answers to major technological and natural catastrophes as well as to meet threats from terrorists.

The European Council invites the Commission to:

• examine whether ad hoc cooperation agreements with specific third countries to be identified by the Council could be a way of enhancing the fight against trafficking and smuggling of persons and making proposals to that end. In particular, such agreements could involve full use of all leverage available to the Union, including the use of existing financing programmes, cooperation in the exchange of information, judicial cooperation and migration tools.

The threat of terrorism and organised crime remains high. It is therefore necessary to work with key strategic partners to exchange information while continuing to work on longer-term objectives such as measures to prevent radicalisation and recruitment, as well as the protection of criticalinfrastructures. Operational agreements by Eurojust, Europol, as well as working arrangements with Frontex, should be strengthened.

7.4 Agreements with third countries

The Lisbon Treaty provides for new and more efficient procedures for the conclusion of agreements with third countries. The European Council recommends that such agreements, in particular as regards judicial cooperation as well as in the field of civil law, should be considered to be used more frequently, while taking account of multilateral mechanisms. It notes however that Member States will maintain the option of entering into bilateral agreements which comply with Union law, and that a legal framework has been created for certain bilateral agreements in civil law as well.

Protection of personal data is a core activity of the Union. There is a need for a coherent legislative framework for the Union for personal data transfers to third countries for law enforcement. A framework model agreement consisting of commonly applicable core elements of data protection could be created.

B)Topics of the Round table

1)Basic principles of mutual legal assistance agreements and extradition of the Union with third countries

Professor Valsamis Mitsilegas (Professor of European Criminal Law at Queen Mary, University of London)

The presentation will discuss the development of basic principles for the conclusion of agreements on judicial cooperation in criminal matters between the European Union and third countries. In this context, I will focus in particular on the feasibility of achieving coherence between EU internal and external action in the field. I will examine the issues of coherence at two levels: at the level of coherence of EU external action in the field with the values of the EU as proclaimed in the Lisbon Treaty (see in particular Articles 2 and 3 TEU); and at the level of coherence of EU external action with the internal EU acquis in the field.

Mr. Peter Csonka (Head of the Unit “Criminal Justice”, European Commission, DG Freedom, Security and Justice)

In the area of Justice, Freedom and Security over the past decade the European Union started to be perceived as an independent international partner. As regards the cooperation in criminal matters first steps at the international level were taken by the EU after the terrorist attacks of 9/11/2001. The EU-US Mutual Legal Assistance and Extradition Agreements were negotiated and signed in cooperative atmosphere in a record time. This successful beginning was followed by the signature of few other agreements. The background for negotiating these agreements differed from case to case. With the entry into force of the Lisbon Treaty and the new Stockholm Programme the time has come to dwell upon the future criteria set by the Council. These criteria should be followed when deciding on entering into negotiations of international agreements with third countries in the field of cooperation in criminal matters. The future Stockholm Action plan will give a mandate to the Commission to make a proposal to the Council to establish list of criteria or guidelines that should be followed in the future. The Commission is looking forward to hearing from participants on this issue during the Round Table discussion.

The Stockholm Programme: Mutual Legal Assistance Agreements and Extradition Agreements[2]

As regards the criminal law field, it will be necessary to identify priorities for the negotiations of mutual assistance and extradition agreements. The Union should actively promote the widest possible accession of the partner countries to the most relevant and functioning Conventions and to offer as much assistance as possible to other States with a view to the proper implementation of the instruments. The Institutions should ensure, to the furthest extent possible, coherence between the EU and the international legal order. Where possible, synergy with the Council of Europe work should be considered.

The European Council calls upon the Commission, the Council and the European Parliament where appropriate to: develop a policy aimed at the establishment of agreements on international judicial cooperation with third countries of interest or within international organisations. In particular, the following criteria should be taken into account when deciding on the priority countries: strategic relationship, whether bilateral agreements already exist, whether the country in question adheres to Human Rights’ principles, whether the country concerned cooperates with the EU in general and its Member States, and priorities of law enforcement and judicial cooperation, (omissis)

The European Council further invites the Commission to:submit to the Council in 2010 a list of countries that have requested to conclude agreements on mutual legal assistance and extradition with the Union as well as an assessment, based on the above mentioned principles of the appropriateness and urgency of concluding such agreements with these or other countries.

Police and criminal justice cooperation (old Title VI EU treaty)

International agreements

Concluded

• UN Organised crime Convention and two Protocols
• UN Convention on corruption
• Mutual assistance and extradition treaty with USA ( &

Signed

• EC signature of firearms protocol to UN Convention on international crime
• Treaty with Norway and Iceland on mutual assistance
• Mutual assistance treaty with Japan
• SWIFT treaty with USA (COM (2009) 703, 17 Dec. 2009)
• Treaty with Norway and Iceland associating them with Prum Decisions

• Treaty with Norway and Iceland regarding extradition
• PNR treaty with USA ( )
• PNR treaty with Australia

2) Combating illegal immigration: returning illegally staying third country nationals while cooperating with and assisting transit countries and countries of origin

Professor Dr. Philippe De Bruycker (Professor Immigration Law at the Free University of Brussels)

Mr. Peter Bosch (Deputy Head of the Unit B3 "International aspects of migration and visa policy”, Directorate Immigration and Asylum at DG Freedom, Security and Justice)

Adopted in December 2009, the Stockholm programme sets out the main EU policy guidelines for the work in the areas of Justice, Freedom and Security for the next 5 years. In order to promote its socio-economic development and ensure internal security, the EU needs to put in place more effective policy to manage the flows of people. Migration, asylum and international

mobility will of key importance and at the centre of political attention. How will the EU and its Member States be able to develop a truly comprehensive policy that meets the different interests in these areas? No doubt solidarity and fair sharing of responsibility are conditional to successful implementation of the Stockholm programme, but how can these be transformed into reality? We will look more specifically at the elements an effective policy on illegal migration should contain.

Combating illegal immigration: returning illegally staying third country nationals while cooperating with and assisting transit countries and countries of origin: The Stockholm Programme[3]

The European Council has consistently underlined the need for EU migration policy to be an integral part of EU external policy and recognises that the EU Global Approach to Migration has proven its relevance as the strategic framework for this purpose. Based on the original principles of solidarity, balance and true partnership with countries of origin and transit outside the Union and in line with what already has been accomplished, the European Council calls for the further development and consolidation of this integrated approach. The implementation of the Global Approach needs to be accelerated by the strategic use of all its existing instruments and improved by increased coordination. A balance between the three areas (promoting mobility and legal migration, optimising the link between migration and development, and preventing and combating illegal immigration) should be maintained. The principal focus should remain on cooperation with the most relevant countries in Africa and Eastern and South-Eastern Europe. Dialogue and cooperation should be further developed also with other countries and regions such as those in Asia and Latin America on the basis of the identification of common interests and challenges.