Written statement to Parliament

Justice and Home Affairs (JHA) Luxembourg 9 to 10 June: post-Council statement

This speech was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

This post-Council statement was laid in the House of Commons on 16 June May 2011 by Theresa May.

This post-Council statement** was laid in the House of Commons on 16 June 2011 by Theresa May.**

The Secretary of State for the Home Department (Theresa May): The Justice and Home Affairs (JHA) Council was held on 9 and 10 June in Luxembourg. My Right Honourable Friend the Secretary of State for Justice (Kenneth Clarke MP), the Scottish Cabinet Secretary of Justice
Kenny MacAskill MSP, and I attended on behalf of the United Kingdom.

The following issues were discussed at the Council:

(The Council began in Mixed Committee with Norway, Iceland, Liechtenstein and Switzerland
(non-EU Schengen States). The Presidency reported that preparations for the VIS go-live date of
October 2011 were on track. The Commission underlined the importance of Member States
notifying their preparedness by the end of July to allow time for the necessary legal and technical

The update on the Commission-led project to implement the central element of the second
generation Schengen Information System (SIS II) confirmed that implementation was still on

The Council agreed the draft Regulation on creating an IT Agency. This will now be considered
by European Parliament to establish whether it can be the basis for a first reading deal.

In advance of the June European Council, Ministers held a wide ranging debate on borders,
asylum and migration, adopting Conclusions reacting to three Commission Communications on
immigration issued last month. The UK highlighted that a stable, secure and prosperous future
for the region required effective management of migration, mobility and security. Migration
should be considered in assessing reform in the European Neighbourhood. The Global Approach
to migration provided the tools and principles for partnerships on migration and Member State
involvement was vital. Dialogue had to be balanced and transparent. On asylum, the UK raised
concerns about the emphasis on legislative solutions: the problem was not a lack of rules, but
implementation of the existing ones. Whilst agreeing to the draft Conclusions, the UK stated that
they did not believe that the Common European Asylum System was in the UK’s national interest
and any further opt in decision would be taken on a case by case basis, taking account of national
interests. The UK opposed suspension of the Dublin arrangements for the return of asylum
seekers to their first port of entry into the EU and relocation or burden sharing options but
supported practical cooperation. Finally, the UK said a comprehensive approach to migration had
to address the issue of free movement. Public support could not be undermined by fraud and
abuse of residence rights and associated benefits. The UK and Frontex figures showed sham
marriage was on the rise, with evidence of links to organised crime. The balance between
safeguarding rights and protecting citizens was vital. The UK said that this issue should be
discussed at a future meeting to meet the Stockholm Programme commitments in this area.

The Commission presented proposals to amend Regulation (EC) No 539/2001 which lists third
country nationals who must possess visas to cross the external borders of the Schengen area and
those exempt from this requirement. The Commission’s amendments also include the
introduction of a suspension mechanism to allow for the temporary reintroduction of visa
requirements in an emergency situation. It would apply to all current and future countries granted
Schengen visa waiver (not just the Western Balkans). The Commission stressed that it would be
applied only in very exceptional cases and as a last resort. The UK does not participate.

Next the Council discussed elements of amending the Frontex Regulation. The Commission
underlined the importance of reaching agreement with the European Parliament by the June
European Council. Frontex agreed on the need for urgency; the Agency was at a critical point and
could not continue without a revised Regulation. There was general agreement on balancing
Member State responsibilities for border control with the obligation of others to provide resources
to support them. The Commission stated that the respect of fundamental rights was of the highest
political importance to both the European Parliament and the Commission; the Council would
have to agree to the independent monitoring of return operations. Member States disagreed on
another name for the proposed ‘European Border Guard System’. Discussions on the Regulation
will continue at COREPER ahead of a further trilogue with the European Parliament next week.

The Presidency presented Council Conclusions confirming that Bulgaria and Romania had
successfully completed the Schengen evaluation process; the Council will discuss accession in

Finally the Commission presented the main findings from the first six months of monitoring the
impact of granting visa liberalisation to the Western Balkans. Even though the large majority of
travellers are bona fide, there had been a high number of unfounded asylum applications in certain. Member States relating to minority populations (especially Roma). The Commission underlined that the Western Balkan countries were starting to address these problems. A number of follow-up measures would now be necessary, including targeted information campaigns, increased use of border controls and entry bans, and targeted assistance to minority populations.

Following Mixed Committee Interior Ministers held a lunchtime discussion on asylum where the
Commission presented revised proposals to amend the Procedures and Reception Conditions
Directives. The upcoming Polish Presidency said all their efforts would be focused on agreeing at
least a core of a common system by 2012. The UK reiterated that a common asylum system would
not be in the UK’s national interest.

After lunch, the Council resumed with the Commission giving a short update on three legal
migration Directives: seasonal workers, intra-corporate transferees and the single permit for
residence and work on which they hoped the electronic storage of data would allow a way
forward. The UK is not participating in these measures.

Next the Council agreed Conclusions on establishing priorities in the fight against organised crime
over the next 2 years. The Commission presented its air cargo security progress report on the implementation of the EU Action Plan of 30 November 2011. Commissioner Malmstrom regretted the negative vote at the Regulatory Committee (the preceding day) due to ‘difficulty’ between transport and security officials in Member States and called for greater cooperation. The UK expressed ‘extreme disappointment’ at the outcome in Regulatory Committee, emphasised the threat remained significant and that the proposals voted on would significantly improve standards and called for Transport Ministers to reconsider this.

The Presidency adopted the Council Conclusions aligning internal and external Counter
Terrorism. The EU Counter Terrorism Coordinator (EU CTC) presented his discussion paper,
highlighting the Arab Spring, EU engagement in Pakistan and disappointment at the Regulatory
Committee vote. The UK welcomed the EU CTC’s paper, specifically the importance of
communication; the link between CT and drugs, the rule of law and organised crime; nuclear
security, aviation security; political dialogue with Arab world and progress on EU PNR. The UK
agreed the threat remained strong and said that the EU must target efforts on areas of greatest risk (whilst complementing Member States’s actions) and welcomed the EU Pakistan strategy.

The UK asserted the importance of EU Passenger Name Records, committed to supporting the
communicators’ network, thanked the Presidency for the Conclusions on aligning internal and
external CT and highlighted the launch of the UK’s new Prevent strategy.

Under AOB there was a presentation of the project “Police Equal Performance” which is designed
to enhance law enforcement capacity in cross-border activities in the Western Balkans; a finalised
proposal should be completed by the autumn. The upcoming Polish Presidency gave a
presentation on their priorities which included the common package for asylum; action to tackle
synthetic drugs; the Eastern Partnership, civil protection; and management of the external border.
The Justice day commenced with the Council reaching a general approach on the Directive on
combating attacks against information systems. The UK welcomed the text, although noted
reservations about the developing trend of providing in all such instruments for extra-territorial
jurisdiction based on jurisdiction; this should not become the default approach.

Next, the Commission introduced its package of proposals on corruption, including a Commission
Decision on an anti-corruption reporting mechanism and a paper on EU accession to GRECO
(the Council of Europe’s Group of States Against Corruption). The Commission thought Europe
had to take this in hand and that corruption had a significant cross-border element, hence the
importance of EU involvement in improving the patchy implementation of existing international
standards. The Commission was mindful of avoiding additional burdens through the reporting

The Presidency secured a partial General Approach on Articles 1 to 18 and Y of the draft
Directive on the European Investigation Order (EIO), although acknowledged that aspects of the
text might need to be revisited at a later stage. Many Member States congratulated the Presidency
on the progress made over the last few months, although it was clear that substantial concessions
had been made across the Council, with the grounds for refusing to execute an EIO being the
most controversial issue. The UK could not support the current text, maintaining its
parliamentary scrutiny reservation. The UK disagreed with the current exceptions to the dual
criminality check which executing States could undertake in respect of the most sensitive and
serious investigative measures. The drafting of the provision on ne bis in idem might also need to
be revisited at a later stage. The incoming Polish Presidency intends to continue the negotiations.
Next the Council adopted Conclusions on the memory of crimes committed by the totalitarian
regimes in Europe. Several Member States intervened to recall the importance of action in this
area and said they would prefer a legally binding instrument in this field.

The Council then agreed the proposed Resolution establishing a Roadmap for future action on
protection of victims’ rights. The Roadmap is a statement of political intent, and sets out the basis
for future legislative measures. The UK agreed the Roadmap.

The Commission also presented the recently published victims package, including a draft Directive
on rights in criminal proceedings, a Regulation on protection measures in civil matters and a
Communication on strengthening victims’ rights in the EU. The UK noted the presentation and
has yet to make its decision on the opt-in for the Directive and Regulation.

The Presidency also introduced its political guidelines which aimed to set the direction for
fundamental issues in the matter of the proposed Regulation on Succession and Wills. The
compromise was welcomed by the majority of Member States. The UK was grateful for explicit
commitment to revisit some issues at a later point to facilitate its possible participation.
Over lunch, Ministers discussed a Presidency paper on the future of EU Criminal Policy.

After lunch the Council noted the proposal for a regulation on electronic publication of the
Official Journal of the European Union, which would give proper recognition and legal certainty
to the electronic version. As some Member States (including the UK) could not lift their
Parliamentary Scrutiny Reservations, the text could not be forwarded to the European Parliament
for consent, but agreement would enable quick progress to be made should reservations be lifted.
The Council agreed the revised Roadmap on implementation of the European e-Justice action
plan and endorsed the report of the Working Party on e-law, without discussion.

The Presidency gave an update on the state of play on negotiations on the Accession Agreement
of the European Union to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. The Commission expressed the view that considerable progress has been
made in the timeframe and they looked forward to continuing work with the Council of Europe.
Then the Commission introduced the recently published Communication on protection of the
financial interests of the Union through criminal law and administrative investigations.

The Commission presented its Communication on protecting EU funds against fraud and other
criminal conduct. Commissioner Reding highlighted the proposed reform of the internal structure
of Eurojust, in order to provide OLAF (the EU’s Anti Fraud Office) with a judicial partner, and
the importance that a European Public Prosecutor (EPP) could play in protecting public money
across the EU. The Government has made clear that it will not participate in an EPP.

There was a presentation on the Missing Children Europe Conference that took place on 25/26
May 2011. The Presidency and the Commission recalled the successful Conference to raise
awareness of the 116000 hotline for missing children, although were disappointed that a
substantial number of Member States had not yet fully implemented the helpline, the deadline for
which had now passed. The UK has implemented the hotline and it is fully operational.
Slovenia also updated delegations on the Brdo Conference of the Western Balkans, held on 15
April at Brdo pro Kranju, which focused on improving judicial cooperation in criminal matters, in
particular in relation to organised crime and asset recovery.

Germany also informed the Council of its impending accession to the network for legislative
cooperation, which would take place on 17 June at the next meeting of the network, in Budapest.
Finally, Poland presented its priorities for their Presidency, which begins on 1 July 2011, and
confirmed that they would focus on protection of citizens’ rights. They hoped to make progress
on the Regulation on Succession and Wills and the Brussels I Regulation and prioritise the
Commission’s package of proposals on victims. Poland also indicated that it would hold
discussions on EU contract law at the informal JHA Council on 18 and 19 July.

6 June  2011

Date: Thu Jun 16 13:29:02 BST 2011