The Secretary of State for the Home Department (Theresa May):
The Justice and Home Affairs (JHA) Council was held on 5 and 6 December in Brussels. My Right Honourable Friend the Secretary of State for Justice (Chris Grayling MP) and I attended on behalf of the United Kingdom. David Ford MLA, Justice Minister for the Northern Ireland Assembly also attended. The following items were discussed.
At the start of the Interior day the Commission (Reding) introduced its communication on the free movement of persons, which came as a result of UK pressure over recent months. The communication noted that whilst free movement was a right, that right did not include moving to another member state to claim benefits. The Commission noted that appropriate safeguards and tools were available under EU law to combat fraud and abuse and committed to work with member states on these issues. The Commission believed that the five actions set out in the communication represented concrete tools to maximise and protect the benefits of free movement. In particular, the Commission committed to finalise the draft of the sham marriage handbook and, together with the Committee of the Regions, agreed to organise a conference of Mayors on 11 February 2014.
The UK (Home Secretary) acknowledged that freedom of movement was an important principle of the EU, but it could not be an unqualified one. Whilst recognition in the communication that pressure had increased at a local level was welcome, it was disappointing that the Commission had failed to take seriously the evidence provided by member states. The UK believed the Commission needed to accept that fraudulent claims for social welfare were a growing problem, and that current rules on social security coordination prevented member states from taking the necessary steps to ensure that only those migrating to work and contribute to a host country’s economy could access welfare benefits. On the sham marriage handbook, the UK and others were not in a position to accept the draft given its narrow focus. The Home Secretary also highlighted the domestic changes to tighten the UK’s implementation of free movement rules and to protect local communities, which had been announced by the Prime Minister. In conclusion, the UK said the EU of today was different to the EU of thirty years ago and the Prime Minister had recently been clear that transition to free movement for future accession countries could not be done on the same basis as it was in the past. The UK believed that abuse of free movement must also be part of the next Justice and Home Affairs work programme.
A number of other member states thought the Commission’s response to the abuse of free movement was insufficient and ineffective, by failing to clarify member states’ legal powers or proposing new actions to protect the freedom of movement from abuses such as benefit fraud, document fraud and sham marriage. If the Commission was not in a position to support, member states would consider working together outside the EU structures. Free movement rights came with responsibilities, and tackling abuse would increase public trust in the EU and the national authorities. Others noted that free movement was a fundamental right and that the overwhelming majority of citizens move to work. However, abuse, where it existed, needed to be tackled. The Presidency noted that the Council would return to these issues in the future.
The Counter-Terrorism Coordinator (CTC) presented a paper on foreign fighters in Syria and asked for a steer on how the proposals should be taken forward. The Commission emphasised that whilst much of this work was the responsibility of the member states, it stood ready to support. The European External Action Service (EEAS) drew attention to the fact that not every European who travelled to Syria was driven by extremism and that humanitarian motives played a significant role. Eurojust noted that the existing legal framework across the member states was sufficient and considered judicial cooperation with non-EU States to be crucial. Europol stressed that the success of its work relied upon information provided by member states.
All interventions supported the CTC’s paper and the majority called for an emphasis on prevent work, third country engagement, and for greater use of existing information systems. Almost all member states specifically referenced the importance of agreeing the EU Passenger Name Records (PNR) Directive. The UK updated ministers on the key findings of the Extremism Task Force report of 4 December and pushed for EU work to focus on prevent initiatives, particularly welcoming moves in the internet and social media sphere. The UK underlined the importance of the PNR Directive, particularly intra-EU PNR, third country engagement and aligning foreign fighters work with that of the EEAS and external affairs partners.
Over lunch the Commission presented its biannual report on the functioning of the Schengen area and its fourth report on the post-visa liberalisation mechanism for the Western Balkan countries. Those member states that had experienced spikes in asylum claims from the Western Balkans region last year expressed continued concerns.
Following the commitment made at the March JHA Council, the Presidency presented the state of play on Bulgarian and Romanian accession to Schengen. A unanimous decision at this time was not possible. Romania and Bulgaria stressed that all criteria to accede to Schengen had been met. The Presidency suggested the Council return to this at its earliest convenience.
The Council discussed the Commission’s communication setting out the EU’s response to the Lampedusa tragedy of 3 October developed through the Commission-led ‘Task Force Mediterranean’. The short and medium term actions to prevent further migrant deaths in the Mediterranean were broadly endorsed and there was a strong consensus that cooperation with countries of origin and transit was the key to preventing migrant deaths and illegal immigration flows. Ministers were more cautious about further sea operations in the Mediterranean, and the Commission’s proposal to open more legal migration channels was met with scepticism by some member states. The UK broadly welcomed the proposed measures, but shared others’ concerns about proposals for more protected entry and legal migration routes to the EU, which were unlikely to have any significant impact on the problem. The focus of the EU response should instead be on preventative work upstream, particularly in Libya and Tunisia; this activity was also important in the context of Syria. The Presidency confirmed that it would report the outcome to the December European Council.
The Council considered the future JHA strategic guidelines and the principles which should underpin them. A central theme running through the debate was to ensure implementation and consolidation of existing EU measures whilst ensuring that all future measures were carefully assessed against the need for new measures and their added value. The UK supported development of a short, strategic set of priorities and reiterated that tackling free movement abuse, reducing illegal immigration, action against human trafficking, return of foreign offenders and improved exchange of criminal records should be the most important priorities for action. The UK also argued that the JHA Council should play a leading role in developing future guidelines. The Commission noted its priorities would include better integration policies, implementation of the Common European Asylum System, solidarity and contingency planning, credible policies on tackling irregular migration and return, strengthening internal security, and preventing cross border crime, tackling trafficking of firearms, linking internal and external policies and using EU funds to support Home Affairs priorities. The Presidency welcomed written contributions it received from Member States which it would consolidate and share with the incoming Greek Presidency. It was agreed that the new Presidency stood ready to continue work at the start of 2014.
Under AOB the Presidency reported on the EU-US Ministerial meeting in Washington on 18 November.
The incoming Greek Presidency then listed its priorities which included reviewing a strategy to combat terrorism, focusing on the Western Balkans; developing measures dealing with the source of illegal immigration and returns; combating trafficking in conjunction with third countries; revising the European Common Asylum System; completing the legal migration legislative framework; and promoting discussion on the entry of third country nationals to the EU for study and work.
Justice Day began with a discussion of the ‘One Stop Shop’ in relation to the Data Protection Regulation, the part of the regulation intended to streamline oversight and decision-making by supervisory authorities, by conferring these powers on a single supervisory authority in cases where a data controller has establishments in a number of member states.
The UK expressed support for a simple model with decision-making made in the majority of cases by a single supervisory authority. Other member states had mixed views. Given the conflicting positions, it was clear that the experts group would need to reconvene. The Commission nonetheless hoped that the Council could adopt an approach quickly.
The Council agreed a general approach on the compromise text for the regulation on the European Account Preservation Order (EAPO), which the UK has not opted into, allowing the Council to open negotiations with the European Parliament in December.
There was then an orientation debate on the Insolvency proposal, which focused on jurisdiction, interconnection of registers and cooperation between courts. Whilst there was broad support for the proposal, specific concerns remain. In particular, the UK, along with others, raised concerns about the ‘adequate safeguards’ and additional search criteria for consumer insolvency cases being too onerous and stressed the need for free access to the registers. Other member states raised concerns about abusive forum shopping (especially as concerns natural persons).
The Presidency concluded that although there was support for much of the text, there were still several difficulties, and called for continued work at expert level.
The Council adopted a general approach on the amendment to Brussels 1 regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The amendment is necessary to give effect to the patent package adopted last December and will include two common courts in the Brussels 1 system – the Unified Patent Court and the Benelux Court.
The Presidency noted progress on the Common European Sales Law proposal and that this had been a priority file, but also cautioned that this was very technical and there needed to be careful consideration of the detailed provisions in the annex.
Over lunch there was a discussion on the European Public Prosecutor’s Office (EPPO). This followed the recent publication of the Commission’s response to the subsidiarity yellow card triggered by a number of national Parliaments. The UK expressed concern that the Commission’s review was inadequate. It amounted to more of a legal defence of the proposal than a considered review of the opinions expressed by national parliaments. There was some support from other member states for this position, and the Commission committed to consider the concerns of national parliaments further during the course of negotiations.
The Council debated the Commission’s Justice Scoreboard. Eleven member states, including the UK, expressed concerns. The UK, supported by some other member states, expressed more fundamental concerns with the principle of the Commission undertaking this work and stressed that there should be no duplication with the work undertaken by the Council of Europe.
The Presidency then informed the Council of its intention, at the request of Attorney General Holder, to provide the US with a contribution from the EU and its member states to the ongoing US review of its own surveillance legislation. The draft contribution was agreed.
There was then an initial discussion on future priorities for the JHA area following the expiry of the Stockholm programme, prior to the adoption of strategic guidelines at the European Council in June. The UK, along with a substantial number of other member states, expressed strong support for an approach based on practical cooperation, better regulation principles, consolidation and implementation of existing legislation, cost effectiveness and cost analysis in impact assessments, subsidiarity, and proportionality. The Presidency concluded that work would continue under the Greek Presidency with an overall approach based on: strategic guidelines that were concise and results-orientated; correct implementation of legal acts already adopted; consolidation; avoiding a catalogue of measures; a focus on quality; increased mutual trust; a focus on fundamental rights; and e-justice.
On the EU accession to ECHR, the Presidency explained that it was waiting for the consolidated text of the internal rules but the Commission’s formal proposal would only be issued after the Court Opinion.
The Council adopted a strategy on e-justice, as well as Council Conclusions on the fundamental Rights Agency; Combating Hate Crime and Citizenship. Both the Presidency and the Fundamental Rights Agency recalled the conference in Vilnius on combating hate crime and crimes of totalitarian regimes.
The Council concluded with a presentation of priorities by the incoming Greek Presidency. This would include continuing the work on post-Stockholm planning for the JHA area. They would aim for a general approach on data protection and insolvency. They would also aim for adoption of the European Account Preservation Order, Protection of the Financial Interests of the Union, as well as Counterfeiting the Euro and other currencies. They would also work on Common European Sales Law, Legalisation, European Public Prosecutor’s Office, Eurojust, and the Market Abuse Directive.