A meeting of the Justice and Home Affairs (JHA) Council was held on 3-4 December. 3 December was the Justice day and my rt hon Friend James Brokenshire MP and my noble Friend Lord Faulks QC, Minister for Civil Justice attended. 4 December was the Interior day, and I attended on behalf of the UK.
The Justice day began with the Council reaching political agreement on a Regulation on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the EU, a successful outcome for the UK. The Regulation covers a number of civil status documents and will reduce the bureaucratic and financial burden on citizens who need to show such documents issued by one Member State to the authorities of another Member State. The Commission urged swift implementation and a future review to consider including business documents.
On the Directive for the Protection of the Union’s Financial Interests, the Presidency updated Ministers on progress since the October JHA Council. Negotiations on this Directive will now be taken up by the Dutch Presidency, with the issue of VAT fraud remaining the main area of contention.
Ministers reached agreement in principle on Articles of the proposed Regulation to establish the European Public Prosecutor's Office (EPPO), covering the EPPO’s competence and related matters. The UK is clear that it will not participate in an EPPO.
During lunch, the Presidency facilitated a discussion on the Fight against Online Hate Speech which was broadly welcomed by the UK, in particular the voluntary notice and take down procedures. The UK maintained that the EU should consider this work-stream within its broader extremism strategy to avoid separate discussions and duplication of work. The UK also spoke against moving towards common European standards on hate speech, and reminded others of the continuum between illegal and simply unpleasant behaviour. The UK suggested that the take down procedure should be speeded up, and that the EU should provide support in maintaining pressure on the IT industry to continue to improve the process.
The Council discussed the proposed Regulations on Matrimonial Property and the Property Consequences of Registered Partnerships. The UK has not opted in to either proposal. Two Member States made it clear that they could not accept the latter proposal because, in their view, it would require indirect recognition of same-sex relationships that are not provided for under their national laws. Given that unanimity was required, and the desire for the proposals to be agreed as a package, the Presidency concluded that agreement was not possible. Other Members States expressed their profound disappointment at this negative outcome to such a long and difficult negotiation. A significant number of Member States confirmed that they would be willing to pursue enhanced cooperation, work on which will be taken forward under the Dutch Presidency.
The Presidency put a number of questions to Ministers about the situation across Member States on the collection and retention of communications data, in the wake of the invalidation of the Data Retention Directive by the Court of Justice of the European Union (CJEU) ruling in the case of Digital Rights Ireland (C-293/12). The Presidency noted that the picture was fragmented across the EU, with some Member States maintaining their domestic legislation, some introducing new measures, and a few finding their frameworks struck down by their domestic courts. Ministers were asked several questions including whether an EU or Member State response was the best approach, and whether the Commission should be invited to present new legislation. The Commission stated that it had no intention of coming forward with a new proposal.
The UK, supported by four Member States, urged caution, noting that access to communications data was of utmost importance and we should not rush to implement a measure if this risked ultimately reducing our operational capabilities. A number of Member States supported new EU legislation, but many stressed the need to at least await the outcome of cases pending before the CJEU before proceeding. The Presidency concluded that Member States agreed on the legality of bulk data retention itself and that while many supported an EU measure, there was also a desire amongst many to await the outcome of those cases currently before the CJEU.
The Presidency presented a paper on the challenges of evidence in the digital age, an issue to which the Dutch Presidency will return at the Informal Justice and Home Affairs Council in January. The Commission reminded Member States of the importance in this context of implementing the European Investigation Order in full and to time. The Commission expressed concern about direct approaches to internet service providers, arguing that it could be outside a legal framework and could violate EU rules and undermine the new data protection regime. There was consensus on the need to address the challenges posed by e-evidence. The UK intervened to support looking at alternatives to formal mutual legal assistance where appropriate, acknowledging the importance of safeguards and oversight.
The Presidency presented a paper on the Migration Crisis: Judicial Cooperation and the fight against Xenophobia, updating Ministers on actions discussed at the October JHA Council.
The Presidency and Commission provided an update on current legislative proposals. The Commission highlighted in particular the importance of reaching agreement swiftly on the Data Protection Regulation and Directive, and its optimism that this was possible before the end of the year.
The Presidency noted that the Western Balkans conference on 7-8 December will focus on migratory flows, terrorism, trafficking, firearms and judicial cooperation.
Finally, the Netherlands presented their three Justice priorities: criminal cooperation on cybercrime, victims’ rights and a European forensic science area. Regarding the legislative agenda, the focus of the Dutch Presidency will be the consolidation and implementation of existing instruments.
The Interior day began with a discussion on Passenger Name Records where I urged Member States to take the opportunity to conclude the proposed Directive. The Council agreed the compromise text negotiated with the European Parliament. Over lunch, Ministers agreed a Council Declaration that all Member States would make use of the option to collect data on internal EU flights and allow collection from non-carrier economic operators such as travel agencies and tour operators, with the aim of sending a strong message about the necessity of processing PNR, in advance of a vote in the European Parliament, scheduled for 10 December.
The Council approved the compromise text agreed with the European Parliament on a draft regulation on Europol. Formal adoption of the regulation is expected in the coming months. The UK has not opted in to this Regulation, but will consider opting in post adoption.
Denmark updated the Council on the outcome of their referendum on moving from a block opt out of all EU Justice and Home Affairs measures to the UK and Irish opt-in model. Denmark expressed regret at the ‘No’ vote and noted that this would make it very difficult for Denmark to participate in important EU initiatives, in particular cooperation with Europol. Denmark explained that the referendum had been heavily influenced by the uncertainty created by the situation at the borders.
The Presidency updated Council on the implementation of the Internal Security Strategy.
The Presidency reminded Ministers of the strong commitments made in the 20th November Council Conclusions in response to the terrorist attacks in Paris and called for rapid implementation. I noted the positive progress made, citing the Syria Strategic Communications Advisory Team, Europol’s Internet Referral Unit and stronger standards for deactivation of firearms, but stressed that further work was required on a number of fronts. First, to reduce terrorists’ access to weapons, particularly through improving our collective understanding of firearms trafficking through better of exchange of information, including on ballistics. Second, it was necessary to make enhanced use of existing systems; in particular the Schengen Information System, , and to improve the interoperability of the various EU databases, including SISII and Eurodac . Third, Member States needed to step up cooperation with Middle East and North African states to improve their capabilities, especially on aviation security. Finally, I stressed that all of this had to be underpinned by strong strategies to challenge extremist ideologies and prevent people from turning to terrorism in the first place.
Ministers were briefed on the EU-US Dialogue which took place in Washington on 13 November.
The Council received an update on the Migration situation, with the Commission calling for implementation of measures already agreed, and the EU agencies (EASO; Frontex: EU-Lisa) providing updates on their efforts regarding the external borders. Some progress was reported on hotspots but as there had been over 800,000 arrivals this year the situation remained critical.
There was broad support for the need to strengthen the external borders of the EU, with some Member States advocating the development of a proposal for a European Border Guard.
I joined others in pressing for further, immediate progress on hotspots, reiterating the UK’s willingness to provide practical assistance. I stressed that it was critical for Member States to tackle abuse of the asylum system by economic migrants, and that the principles underlying the Dublin Regulation remained sound and should be retained. I set out that we are making good progress in our national resettlement scheme; but stressed that any further expansion of resettlement activity should be linked to actions by third countries to reduce illegal migration flows and avoid unintended ‘pull factors’.
The Presidency provided an update on the negotiations on the permanent crisis relocation mechanism. Three meetings had taken place at technical level. However, several Member States were against such a mechanism and wanted to wait to evaluate and draw lessons from the temporary mechanism. The Government does not support relocation as it is the wrong response to the migratory pressures the EU faces. It undermines the important principle that asylum should be claimed in the first safe country and does not address the causes of illegal migration.
The Presidency said it would continue to progress proposals for a common EU list of safe countries of origin. Three areas for discussion were fundamental rights assessments, the interaction with national lists and the nature of implementing acts.
The Council reached political agreement on a Directive on the admission of third country student and researchers, which is aimed at harmonising Member States’ requirements governing the entry and stay of these groups. The United Kingdom has not opted into the measure.
Under AOB, the Presidency noted the outcomes from the Valletta Conference and the EU-US ministerial meeting. The Presidency also noted the upcoming EU-Western Balkans forum meeting in Sarajevo on 13 December.