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Brussels, 6 October 2010

Justice and Home Affairs Council: 7-8 October 2010 in Luxembourg

European Union Justice and Home Affairs ministers will meet in Luxembourg on 7 and 8 October 2010. The European Commission will be represented by Vice-President Viviane Reding, the Justice, Fundamental Rights and Citizenship Commissioner, and Cecilia Malmström, Home Affairs Commissioner.

Main agenda items for Home Affairs ministers (7-8 October):

  • Common European Asylum System

  • Schengen Information System II (SIS II)

  • Combating the sexual abuse, sexual exploitation of children and child pornography

  • Immigration: intra-corporate transferees and seasonal workers

Home Affairs issues (Commissioner Malmström)

1. Common European Asylum System: state of play

Background: The European Council confirmed in the Stockholm programme the EU commitment to establish by 2012 a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection. In order to develop the Common European Asylum System, the Commission has presented proposals aiming at promoting harmonisation and increasing the level of protection of the beneficiaries of international protection while at the same time making the system more efficient for all Member States (IP/08/1875).

What is expected at this Council? Following the discussion of Justice and Home Affairs ministers at the July Informal meeting and the ministerial conference on asylum on 13-14 September, the Presidency will present the state of play on the common European Asylum System to the Council. It should focus on the presentation of the state of negotiations at working level on four instruments of the asylum package: the revision of the Dublin and Eurodac Regulations, the extension of the Long Term Residents Status Directive and the Qualification Directive (IP/09/1552). Both Presidency and Commission aim at achieving concrete results on parts of the package by the end of the year. The Presidency will also debrief the Council on the state of play regarding the dialogue with the European Parliament.

2. Schengen Information System II (SIS II): timeline and costs

Background: In response to the Council invitation to present a binding global schedule and a solid and comprehensive budgetary plan for the entry into operation of SIS II, the Commission presented to the Justice and Home Affairs (JHA) Council of 3-4 June 2010 a revised project schedule whereby SIS II could be expected to become operational by the first quarter of 2013. No information on the budgetary estimate was given at that time, as costs for the completion of the project were mainly dependent on contractual negotiations still to be launched during the summer.

What is expected at this Council? On the basis of a Commission report to the Council and the European Parliament, presented in September (SEC(2010)1138), the Council is expected to confirm both the global schedule and the budgetary estimate for the entry into operation of SIS II.

3. Combating the sexual abuse, sexual exploitation of children and child pornography: debate

Background: On 29 March 2010, the European Commission proposed new rules against child sexual abuse, sexual exploitation and child pornography (IP/10/379). It is an ambitious text covering prosecution of offenders, protection of victims and prevention of offences. It keeps the basic legislative elements of the Framework Decision 2004/68/JHA and incorporates into EU law a number of provisions included in the Council of Europe Convention on this issue (CETS 201, of 2007). Moreover, it goes beyond the Convention on the issues of minimum penalties, exchange of information on disqualification to work with children, and mechanisms to erase child pornography web pages or block them where erasing is not possible. The objective is to push EU countries to protect the victims and to impose more severe punishment on those who sexually abuse children. Furthermore, more action should be taken in order to prevent these offences and to make sure that offenders can get tailor-made treatment to prevent recidivism.

What is expected at this Council? Negotiations on the Commission proposal started in April 2010 and are progressing well. The Council will hold a policy debate about the Commission proposal with a view to finalise discussions on substantive criminal law part of the Directive (e.g. definitions and sanctions).

4. Immigration: intra-corporate transferees and seasonal workers

Background: Last July, in the context of its comprehensive package of measures for an EU common policy on legal migration, the Commission proposed two new directives. The first one (IP/10/930 and MEMO/10/323) aims at establishing common entry and residence conditions for third-country seasonal workers; the second proposal (IP/10/931 and MEMO/10/324) will facilitate for multinational companies to temporarily transfer third-country national skilled workers from a company located outside the EU to branches or subsidiaries in EU Member States.

What is expected at this Council? The Commission will present these two proposals to the Council and collect the first reactions of the Member States.

Main agenda items for Justice Ministers (8 October):

  • Ensuring fair trial rights in the EU

  • Legal certainty for international couples wishing to divorce

  • European Protection Order

Justice issues (Vice- President Reding):

1. Ensuring fair trial rights in the EU

Procedural safeguards represent a top priority in the justice area for the next five years. Minimum standards for the rights of defendants in criminal proceedings are indispensable to promote real mutual trust between citizens and the judicial authorities of different Member States, without which mutual recognition may never work properly.

What is expected at this Council? The right to interpretation and translation is expected to enter into force less than a year after first being proposed. The European Parliament backed the Directive in June. (IP/10/746)

The Council is expected to formally adopt legislation to help people exercise their fair trial rights anywhere in the EU when they cannot understand the language of the case.

Commission position: The Commission welcomes the adoption of the Directive, the first step in a series of measures to set common EU standards in criminal cases. The law guarantees the right of suspects to be informed about evidence used and receive legal advice in their own language in criminal proceedings in all courts in the EU. The Commission is keen to ensure that common minimum standards exist in all EU Member States for defendants. These standards should be fully compliant with the Charter of Fundamental Rights and the European Convention on Human Rights.

Meanwhile, the Commission will present its proposal for the right to information in criminal proceedings, which was proposed in July (IP/10/989). The proposal, if adopted by the European Parliament and EU Ministers of Justice, will help to avoid miscarriages of justice and reduce the number of appeals. Authorities prosecuting the case will have to ensure that suspects are given information about their rights. When someone is arrested, they will be given this information in writing – in a Letter of Rights – drafted in simple, everyday language. It will be provided to the suspect upon arrest in all cases, whether he asks for it or not, and translated if necessary.

Background: The Commission has been committed to common EU standards in relation to criminal proceedings for many years and has been working on EU legislation with a step-by-step approach. These measures will allow the Commission to develop a truly common and ambitious EU framework on the level of protection and fair trial rights.

2. Legal certainty for international couples wishing to divorce

After the EU took the historic step of allowing 14 Member States to move forward with legislation on applicable law for international couples wishing to divorce through so-called enhanced cooperation (the first time this tool was used), those 14 Member States are now negotiating the actual measures (IP/10/1035).

Thousands of Europeans find themselves in difficult situations each year because each EU country has its own system for deciding which country’s law applies to divorces. The proposal aims to protect weaker partners during divorce disputes. International couples will be able to agree which law would apply to their divorce or legal separation. In case the couple cannot agree, judges would have a common formula for deciding which country's law applies. Couples would have more legal certainty, predictability and flexibility. This would help protect spouses and their children from complicated, lengthy and painful procedures.

What is expected at this Council? The Belgian Presidency will update ministers on the state of play of the negotiations.

Commission position: The Commission would like to see the greatest possible number of Member States participate in the initiative. However, any additions to the Commission proposal of March this year would have to comply with EU law and must not affect the competences, rights and obligations of those Member States that do not participate in enhanced cooperation.

Background: EU governments adopted the Council Decision authorizing enhanced cooperation on 12 July 2010 (IP/10/917). It was published in the EU's Official Journal on 22 July. The 14 participating countries (Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain) are now negotiating and will then vote on the Commission proposal for a Regulation that contains the detailed rules that will apply to international divorces. The 14 countries must unanimously approve the Regulation and consult the European Parliament before it can enter into force.

The European Parliament gave its consent for the establishment of enhanced cooperation on 16 June 2010 (IP/10/747). EU Justice Ministers endorsed it on 4 June (MEMO/10/236).

The Commission proposed the measures on 24 March 2010 (IP/10/347) in response to a request by nine Member States that were frustrated with the Council’s failure to move forward on a 2006 Commission proposal (Greece was initially part of the plan and later withdrew its request). Five additional countries – Germany, Belgium, Latvia, Malta and Portugal – then asked to be part of the EU action (IP/10/628).

The proposed new rules will help couples of different nationalities, those living apart in different countries or those living together in a country other than their home country. The need for EU action is clear: There were more than 1 million divorces in the 27 Member States in 2007, of which 140,000 (13%) had an "international" element.

3. European Protection Order

The European Protection Order aims to protect people who are at risk of violence, be it physical, sexual or mental. At the moment, a protection order granted in one EU country does not offer protection in another, meaning that potential victims of violence can lose their judicial protection by crossing EU borders.

What is expected at this Council? The Belgian Presidency will provide a brief update of the negotiation’s current status, including the European Parliament recent vote on the matter.

Commission position: The Commission fully endorses the commitment to grant appropriate protection to victims. Citizens’ free movement rights within the EU should not be impeded because they risk losing the protection available to them in their home country. We must tackle this serious issue in a fully co-ordinated manner to ensure a legally sound, easy and effective system to provide victims with access to the protection they need.

The Commission and a number of Member States have noted difficulties with the current proposal’s scope, which in the Commission’s view takes it beyond the current legal base (Article 82 TFEU). This basis only provides for matters relating to criminal law whilst the current proposal also covers civil law matters. The Commission is committed to ensuring effective protection for all victims. That is why it is carrying out an analysis of the needs and problems faced by victims and examining appropriate solutions including on protection measures. It will present a comprehensive package of measures in 2011 to protect victims' rights.

The Commission is looking at the most effective and legally sound way of ensuring that victims who benefit from civil law protection measures do not lose that protection when they move or travel in the EU. Proposals will be included in the Commission’s package of measures should the current European Protection Order Directive be limited to criminal law measures only.

Background: The Justice Council of April 2010 (MEMO/10/148) discussed a proposal put forward by 12 EU countries for a European Protection Order that would extend judicial protection across the EU for victims of violence or someone under the threat of violence.

The Commission is reviewing the rights and support provided to victims of crime, particularly the 2001 Framework Decision on the standing of victims in criminal proceedings and the 2004 Council Directive relating to compensation for victims of crime. This will result in a comprehensive package of measures on victims of crime being proposed in the first half of 2011.

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