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Brussels, 1 December 2010

Justice and Home Affairs Council: 2-3 December 2010, Brussels

European Union Justice and Home Affairs ministers will meet in Brussels on 2 and 3 December 2010. The European Commission will be represented by Vice-President Viviane Reding, the EU's Justice, Fundamental Rights and Citizenship Commissioner, and Cecilia Malmström, the EU’s Home Affairs Commissioner.

EU Home Affairs Council: 2 December

Main agenda items: (Commissioner Cecilia Malmström)

  • Negotiating directives for Passenger Name Record (PNR) agreements with the United States, Canada and Australia

  • Preventing and combating trafficking in human beings and protection victims

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

  • Report of the High Level Working Group (HLG) on strengthening air cargo security

1. Negotiating directives for the Passenger Name Record (PNR) agreements with the United States, Canada and Australia: possible approval of the mandates

Background: The Commission tabled on 21 September a Communication on an external PNR strategy which aims to lay down general criteria that need to be respected by third countries requesting PNR from the EU (IP/10/1150). Following the Parliament's resolution (on 5 May 2010), the Commission adopted at the same time proposals for negotiation directives for new agreements with the US, Canada and Australia.

Discussions in the Council showed a broad support for the Commission proposals. Council agreed to designate the Commission as the EU negotiator.

The Parliament supported the Commission’s approach in a resolution on 11 November. It called for a balanced approach between security demands and protecting fundamental rights, including the right to privacy. The main concerns are linked to proportionality/necessity of the use of PNR data, onward transfers of PNR data to third countries, reciprocity between the benefits to the EU and those of third countries, data retention periods and judicial redress for passengers. European Parliament Members also called for further talks on how to avoid profiling of passengers, and the link between PNR and other data sharing tools with the US.

The main issues to be discussed on 2 December concern the prior consent of competent Member States authorities for onward data transfers to third countries and whether the PNR agreements should automatically expire after a certain period of time (a so-called "sunset clause").

What is expected at this Council? The Council should approve the negotiating directives for PNR agreements with the US, Canada and Australia (on the basis of QMV). Following the approval of the directives, the Commission will lead negotiations on that basis with the countries concerned. The Commission will inform the Council and the European Parliament on progress made at each stage.

2. Preventing and combating trafficking in human beings and protection victims: possible agreement

Background: On 29 March 2010 the Commission adopted a proposal for a new Directive on trafficking in human beings that aims to further approximate legislation and penalties, ensuring successful prosecution, better protection of and assistance to victims, and prevention of trafficking (IP/10/380). It follows up on a previous proposal that was tabled in 2009 and will replace current EU legislation dating from 2002 (Framework Decision 2002/629/JHA).

The new rules strengthen the fight against trafficking in human beings on three fronts: prosecuting criminals responsible for trafficking human beings, protecting the victims and preventing offences. All Member States (except Denmark and the United Kingdom), will have to comply with the new rules within two years.

What is expected at this Council? Following successful talks at the last trilogues, the Council is expected to confirm the outcome of these mettings in order to reach a first reading agreement with the European Parliament. The Parliament is expected to vote the text in plenary on 15 December 2010.

The Commission is convinced that the agreed text is a very good compromise that will give Europe a strong instrument in the fight against trafficking in human beings.

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

Background: On 29 March 2010, the 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 maintains the existing rules laid down in Framework Decision 2004/68/JHA, incorporates into EU law a number of provisions from the Council of Europe Convention on this issue (CETS 201, of 2007) and goes beyond the Convention on minimum penalties, exchange of information on disqualification to work with children, and mechanisms to remove child pornography web pages and block access to them until they are removed.

What is expected at this Council? The Belgian Presidency intends to reach a general approach on the whole Directive, following the discussion at the October Justice and Home Affairs Council. At that time, a general approach was reached on the first part of the Directive dealing with substantive criminal law. The remaining issues to be discussed are related to disqualification of offenders from working with children, investigative tools, jurisdiction to punish offences committed abroad, protection of victims, intervention and treatment programmes for offenders and blocking of web pages. The text agreed in the Council will be the basis for discussion with the European Parliament next year.

4. Report of the High Level Working Group (HLG) on strengthening air cargo security: debate

Background: The Commission will report on the work of experts on aviation security in the context of the fight against terrorism. On 8 November 2010, Home Affairs Ministers asked the Belgian Presidency and the Commission to set up a High Level Working Group (HLG) to prepare a report on strengthening air cargo security. This report was finalised by the inter-institutional HLG on 29 November 2010 (MEMO/10/625). It sets out a series of recommendations on the EU's response to the 30 October security alert, when explosive devices were found on cargo flights originating from Yemen.

What is expected at this Council? Ministers are expected to take note of the report and underline the strong need of a common risk-based approach. The Commission believes that improving air cargo security depends mainly on the commitment of the different EU institutions and EU Member States, which should implement the recommendations in a timely and efficient manner. The Commission will do its best to support the implementation process.

EU Justice Council: 3 December

Main agenda items: (Vice-President Viviane Reding)

  • Ensuring fair trial rights in the EU – Letter of rights

  • European Protection Order

  • European Investigation Order

  • Stronger data protection rules in the EU-US relationship

  • A comprehensive approach on data protection

  • Legal certainty for international couples wishing to divorce

  • EU Citizenship Report – boosting growth and enhancing citizens’ rights

1. Ensuring fair trial rights in the EU – Letter of rights

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 essential to promote real mutual trust between citizens and the judicial authorities of different Member States, without which mutual recognition may never work properly. These standards should be fully compliant with the EU Charter of Fundamental Rights and the European Convention on Human Rights.

What is expected at this Council? The Belgian Presidency is expected to endorse the draft Directive on the right to information in criminal proceedings, which was proposed by the Commission in July (see IP/10/989). The European Parliament still needs to address the measure.

Commission position: The Commission supports the aims of the Belgian Presidency, which is seeking a political agreement on several important aspects of the draft Directive. 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 suspects upon arrest in all cases, whether they ask 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 taken a step-by-step approach on EU legislation. These measures will allow the Commission to develop a truly common and ambitious EU framework on the level of protection and fair trial rights. Justice Ministers approved the first such measure – the right to translation and interpretation – at their meeting in October (see IP/10/1305).

2. 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? A number of Member States are opposed to the scope of this proposal. The Belgian Presidency will give an update on discussions and aims to assess whether they constitute a blocking minority.

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 Treaty on the Functioning of the EU). 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 (see 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. This will result in a comprehensive package of measures on victims of crime being proposed in the first half of 2011.

3. European Investigation Order

On 21 May 2010, seven EU Member States (Austria, Belgium, Bulgaria, Estonia, Slovenia, Spain and Sweden) put forward an initiative for a European Investigation Order – a system that would ease justice authorities' work in obtaining evidence for transnational criminal proceedings (or investigations). The United Kingdom has said it wants to participate in the proposed Directive. The proposal would allow authorities to request their counterparts to investigate, share and gather evidence.

What is expected at this Council? The Belgian Presidency will inform ministers of progress on the initiative, before passing the proposal on to the Hungarian Presidency.

Commission position: The Commission noted in a report on 24 August (see IP/10/1067) that the proposal for a simpler, unified system could have advantages if it were backed by appropriate procedural and fundamental rights standards.

The Commission will continue to follow the negotiations closely. Any new instrument on evidence should offer added value, going beyond the achievements of the current fragmented legislative regime (Conventions on Mutual Assistance 1959 and 2000, European Evidence Warrant of 2008), and comply with the EU Charter of Fundamental Rights.

Background: The initiative aims at providing a comprehensive and improved system for gathering of evidence in criminal matters based on the principle of mutual recognition.

4. Stronger data protection rules in EU-US relationship

Since 11 September 2001 and subsequent terrorist attacks in Europe, the EU and US have stepped up police and judicial cooperation in criminal matters. One important element is the transfer and processing of personal data if relevant for the prevention, investigation, detection or prosecution of crimes, including terrorism.

The EU and US are both committed to the protection of personal data and privacy. However, they still have different approaches in protecting data, leading to some controversy in the past when negotiating information exchange agreements (such as the Terrorist Finance Tracking Programme, so-called SWIFT agreement, or Passenger Name Records).

What is expected at this Council? Member States may approve a mandate that would allow the Commission to start talks between the EU and US on personal data protection agreement when cooperating to fight terrorism or crime.

Commission position: The protection of personal data has been a recurrent issue in the negotiations of personal data transfer agreements with the US – passenger name records (PNR) and the terrorist financing tracking programme (TFTP) are prominent examples.

The Commission wants to overcome those recurrent difficult negotiations by establishing a coherent legal framework for the protection of personal data in line with the EU Charter of Fundamental Rights and the EU data protection legislation. The framework would apply to EU-US transfers of personal data in the context of police and judicial cooperation in criminal matters.

Background: The protection of personal data is set out in Article 8 of the EU Charter of Fundamental Rights. The Charter is integrated into the Lisbon Treaty and is legally binding on the EU and EU Member States when they implement EU law. The Lisbon Treaty (Article 16, Treaty on the Functioning of the EU) says that the EU can make rules on the protection of personal data processed by EU institutions, bodies, offices and agencies, and by the Member States when carrying out activities that fall within the scope of EU law.

The European Parliament, in a resolution on 26 March 2009, called for an EU-US agreement that ensures adequate protection of civil liberties and personal data protection. In December 2009, the European Council invited the Commission to propose a Recommendation "for the negotiation of a data protection and, where necessary, data sharing agreements for law enforcement purposes with the US."

On 26 May 2010, the Commission proposed a draft mandate for negotiating a personal data protection agreement between the EU and the US (see IP/10/609).

5. A comprehensive approach on data protection

On 4 November, the Commission set out its approach on modernising existing EU rules on personal data protection (see IP/10/1462). It aims to protect individuals' personal data in all policy areas, including law enforcement, while reducing red tape for business and guaranteeing the free circulation of data within the EU.

What is expected at this Council? The Commission will present its recent Communication for a first discussion on the main issues and objectives.

Commission position: The Commission hopes for a fruitful first discussion with Member States.

Background: EU data protection rules (the 1995 Data Protection Directive 95/46/EC) aim to protect the fundamental rights and freedoms of natural persons, and in particular the right to data protection, as well as the free flow of data. This general Data Protection Directive has been complemented by other legal instruments, such as the e-Privacy Directive for the communications sector. There are also specific rules for the protection of personal data in police and judicial cooperation in criminal matters (Framework Decision 2008/977/JHA).

The right to the protection of personal data is explicitly recognised in Article 8 of the EU's Charter of Fundamental Rights and in the Lisbon Treaty. The Treaty provides the legal basis for rules on data protection for all activities within the scope of EU law under Article 16.

In 2009, the Commission launched a review of the current legal framework on data protection, starting with a conference in May 2009 and followed by a public consultation until the end of 2009. Targeted stakeholders consultations were organised throughout 2010.

On 4 November 2010, the Commission set out its strategy to modernise the EU framework for data protection rules (see IP/10/1462).

6. Legal certainty for international couples wishing to divorce

For the first time in EU history, Member States are expected to use the so-called enhanced cooperation procedure to back rules allowing international couples to select which country's law would apply to their divorce. In July, EU governments allowed 14 Member States to move forward with legislation on applicable law for international couples wishing to divorce through enhanced cooperation. Those 14 Member States are now expected to endorse the actual measures (see IP/10/1035) to help international couples.

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 hopes to reach a political agreement on the new rules. The European Parliament would then give its opinion on the legislation before it can enter into force. The Council is expected to formally adopt the new legislation before the end of the year. It will enter into force 18 months after adoption.

Commission position: The Commission supports an agreement on the initiative and would like to see the greatest possible number of Member States participate.

Background: EU governments adopted the Council Decision authorising enhanced cooperation on 12 July 2010 (see 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.

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

The Commission proposed the measures on 24 March 2010 (see 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.

7. EU Citizenship Report – boosting growth and enhance citizens’ rights

EU Justice Commissioner Viviane Reding will present the EU Citizenship Report to Member States for the first time. Under the Lisbon Treaty, which took effect a year ago, citizens are now at the heart of EU policies. The EU is taking concrete action to make it easier for the 12 million EU citizens who live outside of their home countries. The Commission, which adopted the Citizenship Report on 27 October, proposed measures to make peoples’ lives easier when they exercise their EU rights to get married, buy a house or register a car in another EU country (see IP/10/1390 and MEMO/10/525).

What is expected at this Council? Justice Ministers will discuss the report and are expected to welcome its initiatives.

Background: The first-ever EU Citizenship Report looks at everyday problems faced by citizens when they exercise their EU rights and extend aspects of their lives beyond national borders: when they travel, study, work, get married, buy a house or car in another EU country. The report includes 25 measures the Commission plans to take in the next three years to make life easier for European citizens:

  • Tourists/Expatriates: the Commission will update the rules protecting holiday makers from, for example, bankruptcy of their travel provider during their holiday (see IP/09/1824). The Commission will also propose additional ways to strengthen the rights of passengers in all modes of transport and enforce the rights of air passengers (e.g. in case of long delays and cancellations).The Commission will further reinforce the right to consular protection for EU citizens whose home Member State is not represented in third countries, by strengthening the legal framework and increasing awareness among citizens and consular officials.

  • Consumers: the Commission will help consumers get redress if they have problems with a trader, by facilitating the fast and inexpensive out-of-court resolution of disputes across borders, through the promotion of alternative dispute resolution and mediation.

  • Couples: the Commission will propose legislation to make it easier for international couples to know which courts have jurisdiction and which country's law applies to their jointly owned house or bank accounts.

  • Workers: the Commission is developing a new system of electronic exchange of information between national administrations so as to make it simpler and quicker for people working in another EU country to transfer their social security rights.

  • Car owners: the Commission will propose legislation to simplify the paperwork and formalities for the registration of cars bought in another EU country and will address cases in which citizens are required to pay registration tax twice.

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