European Update : March 2004
Draft Directive on
effective legal remedies and border control by the Meijers
Committee[1]
On the 24th
of February 2004, a draft directive on effective legal
remedies for individuals has been presented by the
Standing Committee of Experts in International Immigration,
Refugee and Criminal Law to Mr. J.L. De Brouwer, head of
Directorate B, of the DG Justice and Home Affairs of the
European Commission. The Dutch NGO, also known as the Meijers
Committee, developed a set of minimum guarantees for those
who seek to cross external borders of the territory of the
Member States of the European Union. With this initiative,
the Meijers Committee intends to enlarge the legal protection
of individuals with regard to the different measures taken by
the Member States in the field of border and immigration
control. Although the importance of a strong legal protection
of individuals has been underlined by the European
Commission, as well as by the European Court of Justice
in its jurisprudence, the rights of individuals often remains
a second rate subject in EU legislation. As pointed out in
the explanatory report to this draft directive, the Meijers
Committee emphasises that measures of border and immigration
control do not only affect non EU nationals, but EU nationals
as well. EU organisations or employers for example may be
involved when their employees have difficulties with
obtaining a visa for entering the EU Member State. Also EU
citizens may be confronted with a refusal to fly solely on
the basis of the communication of their passenger data by air
line companies to third countries (and in the future to
European states as well). The explanatory memorandum to the
draft directive makes clear that the obligation for EU Member
States to protect human rights and fundamental freedoms of
individuals, follows from existing standards of European law
as they are developed by the Court of Justice and the
European Court of Human Rights.
The draft
directive, which contains ten Articles, applies to decisions
of authorities of Member States or the European Community (or
European Union) which have in common that they interfere in
the liberty to move, the personal liberty, and security (see
Article 1). The draft directive contains basic requirements
regarding decisions, such as the right of an individual to be
informed on the content of the decision, the legal basis and
on the procedural possibilities to challenge the decision (Article
3). Further the Directive provides for specific requirements
for the procedure on visa applications (Article 4) and the
processing of personal data (Article 5). Core provision in
the directive is Article 6 which includes basic provisions on
the right to an effective legal remedy. This Article gives
every individual within the jurisdiction of a Member State
the right to an effective legal remedy before a court against
any decision as described in Article 1 of the draft Directive.
Article 6 designs equality of arms as leading principle by
providing that each individual must have the opportunity to
be heard either in person or by a representative. Further the
effectiveness of the remedy is to be secured by providing in
Article 6 that the court has the power to suspend the
execution of measures whose effects are potentially
irreversible. The court should have the power to annul an
arbitrary, disproportionate, or unlawful decision and the
court should be able to order appropriate measures repairing
or compensating damages. Article 7 gives everybody within the
jurisdiction of the EU the right to independent, qualified
and competent legal advice and assistance. The draft
directive has been written by Pieter Boeles, Aleidus Woltjer,
Karin Alfenaar and Evelien Brouwer.
Copies of Border
control and movement of persons. Toward effective legal
remedies for individuals in Europe, which includes the
draft directive + explanatory memorandum, can be obtained at
the secretariat of the Standing Committee: cie.meijers@forum.nl.
Biometrics in EU citizens’
passports
On 18 February 2004, the
European Commission presented its draft for a Regulation
which regulates the introduction of biometrics in EU citizens’
passports (COM (2004) 116). According to this proposal EU
passports will not only contain the fingerprints, but also
the facial image of EU citizens. On the longer term, the
Commission foresees a centralized, biometrics-based “EU
passport register”, which would contain amongst others
the fingerprints of the passport applicants, a relevant
identification number, and other relevant data. On 2 March
2004 the European Parliament organised a public hearing Biometrics,
privacy and security. Striking the right balance on the
introduction of biometric identifiers in visas and residence
permits of third country nationals and into SIS II and the
VIS.
Visa Information System (VIS)
At their
meeting of 19 February 2004, the Ministers of Justice and
Home Affairs reached conclusion on the basic principles with
regard the development of the European Visa Information
System (provisional conclusions of the JHA Council, doc 5831/04).
According to these conclusions, the VIS will be used amongst
others to facilitate the fight against visa fraud, to improve
consular cooperation, to prevent “visa shopping”,
to facilitate the application of the Dublin II Regulation,
and to simplify the procedures in returning citizens of third
country. VIS should play a role as well “towards
internal security and to combating terrorism”. The VIS
will contain data on Schengen uniform visas and national
visas which are either requested, issued, formally refused,
annulled, revoked, or extended. Apart from data necessary to
identify the applicant, the VIS will also contain the record
of persons issuing invitations and those liable to pay board
and lodging cost. Finland and Sweden opposed the recording of
these latter category. In a first phase, the VIS shall
include digital photographs of the visa holder, which phase
should be implemented by the end of 2006. In a second phase,
biometric data will be added for verification and
identification purposes. However, individual Member States
are allowed to store fingerprints and facial images earlier
than other Member States. The Council of Justice and Home
Affairs Ministers further agreed that VIS will be based on a
centralised architecture and a common technical platform with
SIS II, but that the VIS and SIS II shall be two different
systems with strictly separated data and access. However, VIS-users
should have access to consult SIS data via the Central Visa
Information System, as far they are entitled to consult the
SIS. And SIS-users such as police, immigration and border
control authorities may consult VIS data via the SIS II
infrastructure at central level, as far as they are entitled
to consult the VIS. The German proposal to allow for access
to third parties has not been accepted by the Council. With
regard to the period of retention of the personal data, the
Council vaguely concluded that the data “should remain
in the system for on-line consultation for a period of at
least five years”. In its Conclusions, the Council does
not mention which measures will be taken to protect rights
and the freedoms of the persons which are entered into the
VIS, nor which remedies will be open to the individuals.
The European
Commission published on 12 February 2004 a proposal for a Council
Decision establishing the VIS (COM (2004) 99 final). This
proposal provides however only for the regulation of the
financial and legal basis of the VIS. A proposal for an
instrument on the basic elements of VIS, including the
categories of data to be entered, the purposes for which they
are entered, and the protection of personal data, will be
presented at later stage.
New Functioning of the SIS
In a note of the Irish
presidency (doc. 6874/04, 27 February 2004) to the Article 36
Committee it is proposed to adopt the Spanish draft for a
Regulation on some new functions of SIS (OJ C 160, 4.7.2002),
before the adoption of its third pillar counterpart,
the Council Decision on some new functions. This request
follows from the fact that, on the basis of Article 67 TEC,
after the 1st of May 2004, the Council can no longer adopt
legal acts based on article 66 TEC, insofar they are based on
an initiative of (a) Member State(s). The note includes a
revised Article 2 of the draft Regulation, which allows the
Council to postpone the date of application of this
Regulation.
Sixth Report JSA on SIS
In January
2004, the Joint Supervisory Authority of Schengen (JSA)
published its Sixth Annual Activity Report on the period of
January 2002 – December 2003 (can be downloaded from http://www.schengen-jsa.dataprotection.org/).
In this report the JSA mention a research which is performed
by the JSA on the entry of third country nationals into SIS
on the basis of Article 96 of the Schengen Implementing
Agreement. The JSA announces to produce an overview of the
various national laws allowing for an Article 96 entry.
Meaningful are the concerns the JSA expresses towards the
future use of biometrical data in SIS, and the plans for
extending the actual functions of SIS. Unfortunately, the JSA
report does not include statistical data on the amount of
data which have been entered by the Schengen States into SIS,
nor on the hits based on the SIS information.
Case Law
First action lodged by the European
Commission before the Court of Justice on the use of SIS
On 23
November 2003, the European Commission brought an action
before the Court of Justice against the Kingdom of Spain with
regard to the refusal to issue a visa for the entry into
Spanish territory of two persons, both third country
nationals who are family members of EU citizens. According to
the Commission, Spain failed to fulfil the obligations
deriving from Directive 64/221 of 25 February 1964, by
concluding automatically, and without carrying an individual
assessment, that entry into Spain and the visa application
had to be refused, solely on the basis that the persons were
included in the national reporting list of the Schengen
Information System (SIS). (Case C-503/03) OJ C 21/23,
24.01.2004).
Decision by Federal Administrative
Court in Germany in Moon case (4 September 2003, 1 B 288.02,
published in InfAuslR 1/2004, p. 38-40.)
Mr. Moon
– he and his wife being citizens of the Republic of
Korea with legal residence status in the USA – is the
founder and leader of the Unification Church with its world
wide activities. To prevent the Moons from entering Germany
to hold a speech, the German Grenzschutzdirektion in Koblenz
listed Mr. and Mrs. Moon in the Schengen Information System,
as to be refused entrance on the basis of Article 96 Schengen
Implementing Agreement (SIA). This entrance into SIS was
based on the presumption that the visit of the Moons to
Germany would cause a threat to public order. Members of the
German Unification Church lodged an action before the German
administrative court, claiming that the refusal of entry of
its leader in 1995 caused a violation of its right of free
religious practice according to Art. 4 para. 1 and 2 of the
German Constitution. In this second decision of the Federal
Administrative Court in Karlsruhe upheld its earlier decision
of 2001 (10 July 2001, BVerwG 1 C 35.00) in the same case
that the question whether their freedom of religion was
breached by the SIS-entry depended on the question whether
‘the presence of its leader is of real, specific
religious meaning’ for the practice of its community.
With regard to the refusal of 1995, the Federal
Administrative Courts found no grounds to accept that this
had been in breach of the freedom of religion. However, in a
extra final consideration, the Court expressly states that
this judgment does not exclude that visits which are planned
in future do fall under the definition ‘of real,
specific religious meaning’. (Mrs Moon was allowed entry
in 1999 and 2000 to the Netherlands, were her lawyers
successfully applied to the Dutch government to apply the
humanitarian grounds exception of Article 5(2) of the SIA.)
Legislative
Update: EU Immigration and Asylum Law[2]
1.
Legal Migration
The long-term
residents’ Directive was published officially in January
2004, and so Member States must implement it by January 2006.
Discussions on the proposed Directive on migration for
employment or self-employment have been suspended again, but
the Irish Presidency has continued intensive discussions on
the proposed Directive on admission of students, pupils,
trainees and volunteers. Member States are divided as
to whether this Directive should cover categories of persons
besides students, and as to whether students should have the
right to employment during their studies.[3] The proposed Regulation concerning
inserting photos into the uniform residence permit has not
yet been adopted as the EP has not yet delivered its opinion.[4]
Adopted measures
1. Reg. 1030/2002 on residence permit
format (OJ 2002 L 157/1) [UK opt in]
2. Reg. 859/2003 on 3rd-country
nationals’ social security (OJ 2003 L 124/1) [UK, Ir
opt in]
3. Directive 2003/86 on family
reunion (OJ 2003 L 251/12)
4. Long-term residents directive
(OJ 2004 L 16/44)
Proposed measures
1. Directive on migration for
employment or self-employment (COM (2001) 386) [Irish opt
in]
- EP voted March 2003; Council:
discussion resumed Oct. 2003; discussed at 27.11.2003 JHA
Council
2. Directive on migration of third-country
students, volunteers etc. (Oct. 2002)
- open debate at JHA Council, 14/15
Oct 2002; Council working group began discussions Dec. 2003
3)
proposed Reg. amending residence permit to
insert biometrics (COM (2003) 558, 24 Sep. 2003); JHA Council
reached agreement in principle, 27.11.2003 [UK, Irish
position not yet known]
Cases
Pending: Case C-540/03
EP v Council, on validity of parts of
Directive 2003/86 (see discussion elsewhere in this Update).
2.
Asylum
Adopted measures (UK opt in to
all 6; Ireland opt in to all except 5).
1. Decision 2000/596/EC on European
refugee fund (OJ 2000 L 252/12)
2. Regulation 2725/2000 on Eurodac (OJ
2000 L 316/1): applied from 15.1.03
3. Directive 2001/55 on temporary
protection (OJ 2001 L 212/12): implement by 31.12.02
4. Regulation 407/2002 implementing
Eurodac Regulation (OJ 2002 L 62/1)
5. Directive 2003/9 on reception
conditions (OJ 2003 L 31/18)
6. Dublin II Regulation 343/2003 (OJ
2003 L 50/1): in force 1.9.03
7. Commission Reg. 1560/2003
implementing Dublin II (OJ 2003 L 222/3): in force 6.9.03
Proposed measures (UK opt in
to all)
There is
still a deadlock on the proposed Directive on refugee and
subsidiary protection definition and content, following
agreement of all Member States except Germany at end
June 2003.[5] The text was to
be examined again by the JHA Council on 19 February 2004, but
the issue was deferred to the next JHA Council at end March
2004 in the absence of any change in the German position.
Discussion on
the other major oustanding proposal, concerning asylum
procedures, continued intensively,[6]
with discussion on appeals at the February 2004 JHA Council
and further discussions planned on other issues.
The Commission has now proposed a new
Decision extending the European Refugee Fund to 2010.[7]
Asylum
procedures Directive: update
It still
remained to be seen whether the Member States which have
reopened some questions relating to Articles 1-22, concerning
the core procedural rights, would be successful at changing
the text of these Articles as agreed at the JHA Council of
June 2003.[8]
There has no been no redraft of the draft text of the
Directive as it stood in December 2003,[9] but the Irish have raised questions
concerning certain issues.
First of all,
as regards ‘safe countries of origin’, a
Presidency paper reports on the discussion at Commission
meeting of October 2003.[10]
There was wide support among Member States for including
‘category A’ states (EFTA countries: Norway,
Iceland, Switzerland, Liechtenstein) on a planned common EU
list of ‘safe country of origin’, although there
were some misgivings due to the low number of asylum-seekers
from these states. There was also wide support for
including ‘category B’ states on the common EU list.
This category consists of wealthy and nearby states (Romania,
Bulgaria, USA, Canada, Japan, Australia and New Zealand),
although again there were some misgivings due to the
application of the death penalty in some of these States and
the low number of asylum-seekers from these States. As
for ‘category 3’, there was no consensus on
including any other countries which appear on some Member
States’ national lists, without agreeing on listing
criteria first. A meeting of the Strategic Committee on
Immigration, Frontiers and Asylum (SCIFA) on 4 February
decided to include Categories A and B on the list, and to
work on which category C states could be included on the
common list.[11]
As noted
above, appeals issues were sent to the JHA Council in
February 2004.[12] There were
three issues. First of all, should there be exception
from the ‘right to effective remedy’ for ‘safe
third country’ claims or ‘repeat application’
claims? A ‘large majority’ of Member States
were against such exceptions, but most were willing to leave
the issue up to each Member States in cases where the Dublin
II Regulation applies (ie, Art. 19(2) of the Dublin II
Regulation which leaves it up to Member States to decide
whether to allow appeals in Dublin cases on a case by case
basis). Secondly, should there be exceptions from the
right to request a stay from a court pending expulsion, in
cases where the proposed Art. 28a (the ‘super safe third
country’ clause) applies or where ‘repeat
application’ rules apply? The Irish argued not,
supported by a ‘majority’ of Member States.
Finally, should the Directive remain silent on the issue of
what happens to the applicant when the court or tribunal is
making its decision on the request to stay? The Irish
argued Yes, as this is an expulsion issue and there was no
consensus earlier on any these points. However, it was
not clear from its press release what JHA Council actually
decided (if anything) on any of these points.
3.
Borders and Visas
Adopted measures [UK &
Ireland have opted out of all measures except UK opt in to 6,
7]
1. Reg. 539/2001 establishing visa
list (OJ 2001 L 81/1)
2. Reg. 789/2001 on procedure for
amending Common Consular Instructions (CCI) (OJ 2001 L 116/2)
3. Reg. 790/2001 on procedure for
amending borders manual (OJ 2001 L 116/5)
- Regs. 789/2001 and 790/2001
challenged by Commission (Case C-257/01, pending)
4. Reg. 1091/2001 on freedom to
travel for holders of long-term visas (OJ 2001 L 150/4)
5. Reg. 2414/2001 moving Romania to
‘white list’ not requiring visas (OJ 2001 L 327/1)
6. Reg. 333/2002 on visa stickers for
persons coming from unrecognised entities (OJ 2002 L 53/4)
7. Reg. 334/2002 amending Reg. 1683/95
on common visa format (OJ 2002 L 53/7)
8. Reg. 415/2003 on visas at the
border and visas for seamen (OJ 2003 L 64/1)
9. Reg. 453/2003 on visa list (OJ
2003 L 69/10)
10. Reg. 693/2003 on FTD and FRTD (OJ
2003 L 99/8)
11. Reg. 694/2003 on format for FTD
and FRTD (OJ 2003 L 99/15)
12. Reg 1295/2003 setting out special
visa/border rules for Olympic games (OJ 2003 L 183/1)
Implementing Measures
1.
Decision 2001/329/EC amending CCI and Common Consular Manual
(OJ 2001 L 116/32) re: Nordic states
2.
unpublished Decision amending Annex 10 to CCI, Annex 6(c) to
Common Manual, Annex 8 to technical specifications of
Schengen consultation network
3.
Decision 2001/420 amending CCI, Parts V and VI and Annex 13,
and Common [Border] Manual, Annex 6a (OJ 2001 L 150/47) [implements
Reg. 1091/2001]
4.
Decision 2002/44 amending Part VII, Annex 12 CCI and Annex 14a
of the Common Manual (OJ 2002 L 20/5) [allows for charging
fees for visa applications]
5. Decision deleting provisions of
Part I of the Common Manual (OJ 2002 L 123/47)
6. Decision 2002/354 amending
Part III CCI & creating new Annex 16 CCI (OJ 2002
L 123/50)
- establishes a standard form for a
Schengen visa application
7. Decision amending Parts III and
VIII of CCI (OJ 2002 L 187/44) - re apps. sent by travel
agents
8. Decision amending Part VI to the CCI (OJ
2002 L 187/48) - follows change in visa format reg
9. Decision amending Part II Borders
Manual (OJ 2002 L 187/50) - limited changes to text
10. Decision amending Schengen
Consultation Network - agreed 19.12.02, not published
11. Decision re fees for visa
applications (OJ 2003 L 152/82)
12. Decision on visa requirements for
holders of Pakistani diplomatic passports (OJ 2003 L 198/13)
13. Decision
re airport transit visas for Eritreans (OJ 2003 L 198/15)
14.
Decision amending CCI to require travel insurance (OJ
2004 L 5/79)
15.
Decision amending CCI re: representation by Member States (OJ
2004 L 5/76)
16.
Decision amending CCI re: interviews at consulates (OJ 2004 L
5/74)
Proposed
measures [UK, Ire opt out of all except possibly
5, 6, 8 and 10]
1. Directive on freedom to travel (Commission
proposal: COM (2001) 388)
2. Decision amending Annex V to the CCI
3. Decision on border crossing points (OJ
2003 C 125/6)—agreed in principle[13]
4.
Regulations on border traffic regime at external borders and
‘temporary’ external borders after enlargement (COM
(2003) 502, 14 Aug. 2002)—under discussion in Council
working group
5. Reg.
amending visa format to insert biometrics (COM (2003) 558, 24
Sep. 2003); 27.11.2003 JHA Council agreed in principle
6. Reg.
establishing Border Control Agency: (COM (2003) 687, 11 Nov.
2003); 27.11.2003 JHA Council adopted conclusions
7. Reg.
requiring stamping of travel documents at external borders (COM
(2003) 664, Nov. 2003)
8. Visa Database (initial proposal: COM
(2004) 99, 12 Feb. 2004)
-
guidelines approved by JHA Council, 13 June 2002 (doc. 9615/02),
5/6 June 2003, 19.2.04; further detailed Commission proposal
due later in 2004
9. Border
manual decisions: standard form for refusal; rules on checks
on minors--under discussion in working party
10. Reg.
on biometric features in EU passports (COM (2004) 116, Feb.
2004)
11. CCI
amendment to set standard rate of subsistence between 40 and
60 euro/day (Council doc. 5572/04)--under discussion in visa
working party
Cases:
1. C-257/01, Commission
v Council (above), pending.
2. C-51/03 Georgescu,
pending (do Romanians need visas?)
The
Commission’s proposal to insert biometrics (photos and
fingerprints) into visas has still not been officially
adopted, pending the EP’s opinion.[14]
Discussions on the border traffic proposals and the proposed
borders agency are still ongoing,[15]
while discussions on the travel document stamping proposal
got underway early in 2004. The Commission has recently
proposed a Decision formally establishing the planned Visa
Information System, and a Regulation establishing security (biometric)
features in EU passports. Discussions on both measures
were due to start in March (see elsewhere in this Update for
further information about these proposals). Discussions
are also ongoing on amendments to the Common Consular
Instructions to harmonise subsistence rules,[16]
and on amendments to the Borders Manual to establish a common
form for refusal at the border and further provisions for
checks on minors.[17]
3.
Irregular Migration
Adopted measures [UK opt-in
to all except 7, Ireland opt-in to all except 7,11]
1. Dir. 2001/40 on mutual
recognition of expulsion decisions (OJ 2001 L 149/34);
implement 2.12.02
2. Directive 2001/51 on carrier
sanctions (OJ 2001 L 187/45); implement 11.2.03
3. Regulation 2424/2001 on funding SIS II
(OJ 2001 L 328/4)
4. Decision 2001/886/JHA on
funding SIS II (OJ 2001 L 328/1)
5. Framework Decision on trafficking in
persons (OJ 2002 L 203/1)
6. Directive and Framework Decision on
facilitation of illegal entry and residence (OJ 2002 L 328)
7. Directive 2003/110 on assistance
with transit for expulsion by air (OJ 2003 L 321/26)
8. Conclusions on transit via land
for expulsion—adopted 22 Dec. 2003 by environment
Council
9. Reg 378/2004 and Dec. on procedure
for amendments to Sirene manual (OJ 2004 L 64/5, 45)
10. Reg.
377/2004 on ILO network (OJ 2004 L 64/1)
11. Decision re costs of expulsion,
implementing Dir. 2001/40 (OJ 2004 L 60/55)
Proposed measures
1. Directive on residence permits for
victims of trafficking or facilitation (COM (2002) 71)
- discussion revived July 2003; agreed
at JHA Council, 6 Nov. 2003; EP being reconsulted
2. Reg. and Decision on new
functionalities for SIS (Spanish proposals, OJ 2002 C 160) [UK
opt in]
- scope is limited; discussion at JHA
Council 19.12.02; agreed at working party level
3. Directive proposed by Spain re
transmission of passenger data (OJ 2003 C 82/23) [UK opt in]
- under discussion in Council working
party
4. Decision proposed by Italy on joint
flights for expulsion (OJ 2003 C 223)—agreed at JHA
Council, 6 Nov. 2003 [UK, Irish opt in]
5. Commission proposal for Decision on
early warning system (COM (2003) 727, 25.11.2003)
The Council
adopted three further measures officially during February
2004, following earlier agreements in principle. As
noted in the last update, the Italian proposal for a
Directive on assistance for expulsion via land or sea has
been replaced by Council conclusions, adopted in December
2003. The proposed Directive on residence permits for
victims of trafficking will be adopted at some point
following the reconsultation vote of the EP, which is
scheduled for the week of 8 March 2004.[18]
As for the proposal for new functions for SIS II, the Irish
Presidency is pushing for adoption before 1 May 2004, because
otherwise the proposal will expire as the transitional period
during which Member States can make proposals for EU
immigration and asylum law will end as of that date.[19] The Spanish proposal on transfer of
passenger data has been subject to intense discussion in the
Council’s working parties and committees with a view to
its adoption before 1 May for the same reasons, and
apparently the Irish Presidency has secured agreement on a
text which has broad support.[20]
If adopted, this proposed Directive will require transmission
of data concerning all passengers crossing the Member States’
external borders (including EU citizens), but will not deal
with the issue of transmission of information concerning
return tickets or biometrics.
The Decision
concerning joint flights for expulsion, again subject to a 1
May deadline for formal adoption, cannot be adopted until the
EP votes on the proposal, and the EP’s vote has now been
delayed several times.[21] Finally, the
Council’s CIREFI working group has broadly supported the
Commission’s proposal for a Decision on the practical
operation of the early warning system applicable to irregular
migration.[22]
4.
External Relations
Readmission treaties
1. EC/Hong
Kong [UK opt in]: Council decided to conclude, Dec.
2003 (OJ 2004 L 17/23); entered into force 1.3.2004 (OJ 2004
L 64/38)
2. Sri Lanka:
SEC (2003) 255, 21 Mar. 2003; online in Council register as
doc. 7831/1/03, 9 Apr. 2003
-
Council agreed to sign, 25.11.2003
3. Macao: COM (2003) 151, 31 Mar. 2003
- signed by
Council, 13.10.2003
4. Albania: proposal
to sign and conclude in COM (2004) 92, 12.2.2004
Under
negotiation
- mandates
2001 for treaties with Russia, Pakistan, Morocco; EC/Ukraine
mandate approved by JHA Council, 13.6.02; Russia and Ukraine
agreed to negotiate, 11.11.02
- criteria
and list of future targets agreed by JHA Council, 25/26.4.02
(Council doc. 7990/02): Algeria, Turkey, China,
negotiating mandates adopted by JHA Council, 28/29 Nov.
2002
Other treaties
- EC/Norway/Iceland re: Dublin
Convention: in force 1 March 2001
- EC/Swiss free movement of persons:
concluded 28.2.02 (OJ 2002 L 114); entry into force 1.6.02
- EC
& Switzerland re Schengen, Dublin, free move. services:
Commission prop. for Council mandate to neg. treaties, 10.4.02;
approved by General Affairs Council, 17.6.02; UK opt-in
to Dublin negs; discussed at JHA Council, 8 May 2003, 5/6
June 2003
- Approved Destination Status’
treaty with China: initialled Sept. 2003; proposal
to sign/conclude: COM (2003) 790, 12.2003; treaty signed 12.2.04
- mandate to negotiate Dublin II
treaty with Denmark: approved 8 May 2003 JHA Council
Legislation
- Regulation on
financial and technical
assistance to third countries in the area of migration and
asylum: adopted 19.2.04 (not yet published in OJ)[23]
THE
UK’S POSITION ON FREE MOVEMENT OF WORKERS AFTER
ENGLARGEMENT
On 1 May 2004, Cyprus, the Czech
Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland,
the Slovak Republic and Slovenia will join the EU. The
Accession Treaty, signed in April 2003 in Athens, contains
detailed derogations from the application of the free
movement provisions on workers and posted workers, which are
set out in the annexes to the Treaty (see annex 5 in relation
to the Czech Republic as an example). The annexes
provide for a transitional period of up to seven years during
which the free movement of workers for eight of the accession
States (excluding Malta and Cyprus) may remain subject to
national laws. Under paragraph 2 of each of the
annexes, access to the labour market is made subject to
national law by way of the specific derogation from the
provisions of Articles 1 to 6 of Regulation 1612/68 EEC for a
period of two years with the possibility of extending this up
to five years. Where full labour market access is given
after two years, EC Rules on free movement will be directly
applicable. Restrictions on free movement may be
applied for up to seven years where there exists or is a
threat of serious disturbances to a Member State’s
labour market. The same derogations apply in respect of
Germany and Austria on posted workers falling with the
definition of Directive 96/71 in certain sectors.
The UK government confirmed in December
2002 that it would grant access to its labour market
following accession and that national measures would apply in
the first two years. Recent speculation from some
sections of the UK press regarding potential flows of
migrants to the UK and access to benefits led the government
into issuing a formal statement on 23 February 2004, setting
out broad details of a registration scheme for accession
workers and “tough new rules” preventing access to
benefits. The Home Office has confirmed the details of
the scheme in broad terms as follows:
Workers will be required to register with
the police. The
registration certificates will be a secured document.
Individuals will be required to register
as soon as they find work. The Home Office will ensure that applications are
processed as quickly as possible
The Home office are
looking into the possibility of charging for worker
registration to recover the costs of the scheme
Workers will be
required to provide:
- Evidence
of the job (e.g., letter from employer, contract of
employment)
- Details
of the type of work
- Evidence
that they will be paid the minimum wage or more
- Photographs
- Passport/ID
card
The Home Office have stressed that
registration will be straightforward and wish to encourage
all workers to comply. The Home Office also confirmed that if a worker
persists in working without registration they will be subject
to a penalty and liable to removal.
It appears that the
Home Office will also require dependant family members of
workers to register under the scheme.
The scheme will be
administered and enforced by the Home Office.
The finer details of the registration
scheme have yet to be publicised. A number of question
remain to be answered. It is unclear when a worker can start
“lawfully” working and whether this time starts
from when the registration form is sent or when registration
is completed. In addition, while the Home Office are
keen to charge fees for registration, this may be
questionable in view of the standstill clause in the
Accession Treaty and as the Home Office have previously
exempted accession country nationals from work permit charges.
What is clear, however, is that deportation of those who do
not register they clearly do not comply with Directive 64/221.
Access to the labour market of dependants of those who do not
have any restrictions (for example the self-employed) should
not be regulated by the registration scheme but by the
provisions of Community law.
No details of the proposed tightening up
of UK benefits law have yet been made available. The
transitional provisions do not derogate from the general non-discrimination
provisions of the Treaty and those in article 7(2) of
Regulation 1612/68. Regulation 1408/71 also has no
transitional provisions and it is certainly the case that
those who are or have been admitted to the labour market will
be entitled to benefits on a non-discriminatory basis.
Transitional
Provisions on EU Workers and Accession:
Annex
V re EU Accession Agreement with the Czech Republic
(identical
provisions cover nationals of all eight accession states
where there is a delay on free movement of workers)
List referred to in Article 24 of the
Act of Accession: Czech Republic
1. FREEDOM OF
MOVEMENT FOR PERSONS
Treaty
establishing the European Community;31968 L 0360: Council
Directive 68/360/EEC of 15 October 1968 on the abolition of
restrictions on movement and residence within the Community
for workers of Member States and their families (OJ L 257, 19.10.1968,
p. 13), as last amended by:
— 11994
N: Act concerning the conditions of accession and the
adjustments to the Treaties Accession of the Republic of
Austria, the Republic of Finland and the Kingdom of Sweden (OJ
C 241, 29.8.1994, p. 21); 31968 R 1612: Council Regulation (EEC)
No 1612/68 of 15 October 1968 on freedom of movement for
workers within the Community (OJ L 257, 19.10.1968, p. 2), as
last amended by:
— 31992
R 2434: Council Regulation (EEC) No 2434/92 of 27.7.1992 (OJ
L 245, 26.8.1992, p. 1); 31996 L 0071: Directive 96/71/EC of
the European Parliament and of the Council of 16 December
1996 concerning the posting of workers in the framework of
the provision of services (OJ L 18, 21.1.1997, p. 1).
1. Article 39
and the first paragraph of Article 49 of the EC Treaty shall
fully apply only, in relation to the freedom of movement of
workers and the freedom to provide services involving
temporary movement of workers as defined in Article 1 of
Directive 96/71/EC between the Czech Republic on the one
hand, and Belgium, Denmark, Germany, Estonia, Greece, Spain,
France, Ireland, Italy, Latvia, Lithuania, Luxembourg,
Hungary, the Netherlands, Austria, Poland, Portugal,
Slovenia, Slovakia, Finland, Sweden and the United Kingdom on
the other hand, subject to the transitional provisions laid
down in paragraphs 2 to 14.
2. By way of
derogation from Articles 1 to 6 of Regulation (EEC) No 1612/68
and until the end of the two year period following the date
of accession, the present Member States will apply national
measures, or those resulting from bilateral agreements,
regulating access to their labour markets by Czech nationals.
The present Member States may continue to apply such measures
until the end of the five year period following the date of
accession.
Czech
nationals legally working in a present Member State at the
date of accession and admitted to the labour market of that
Member State for an uninterrupted period of 12 months or
longer will enjoy access to the labour market of that Member
State but not to the labour market of other Member States
applying national measures. Czech nationals admitted to the
labour market of a present Member State following accession
for an uninterrupted period of 12 months or longer shall also
enjoy the same rights.
The Czech
nationals mentioned in the second and third subparagraphs
above shall cease to enjoy the rights contained in those
subparagraphs if they voluntarily leave the labour market of
the present Member State in question.
Czech
nationals legally working in a present Member State at the
date of accession, or during a period when national measures
are applied, and who were admitted to the labour market of
that Member State for a period of less than 12 months shall
not enjoy these rights.
3. Before the
end of the two year period following the date of accession,
the Council shall review the functioning of the transitional
provisions laid down in paragraph 2, on the basis of a report
from the Commission. On completion of this review, and no
later than at the end of the two year period following the
date of accession, the present Member States shall notify the
Commission whether they will continue applying national
measures or measures resulting from bilateral agreements, or
whether they will apply Articles 1 to 6 of Regulation (EEC)
No 1612/68 henceforth. In the absence of such notification,
Articles 1 to 6 of Regulation (EEC) No 1612/68 shall apply.
4. Upon the
request of the Czech Republic, one further review may be held.
The procedure referred to in paragraph 3 shall apply and
shall be completed within six months of receipt of the
request from the Czech Republic.
5. A Member
State maintaining national measures or measures resulting
from bilateral agreements at the end of the five year period
indicated in paragraph 2 may, in case of serious disturbances
of its labour market or threat thereof and after notifying
the Commission, continue to apply these measures until the
end of the seven year period following the date of accession.
In the absence of such notification, Articles 1 to 6 of
Regulation (EEC) No 1612/68 shall apply.
6. During the
seven year period following the date of accession, those
Member States in which, by virtue of paragraphs 3, 4 or 5,
Articles 1 to 6 of Regulation (EEC) No 1612/68 apply as
regards Czech nationals, and which are issuing work permits
to nationals of the Czech Republic for monitoring purposes
during this period, will do so automatically.
7. Those
Member States in which, by virtue of paragraphs 3, 4 or 5,
Articles 1 to 6 of Regulation (EEC) No 1612/68 apply as
regards Czech nationals, may resort to the procedures set out
in the subparagraphs. When a Member State referred to in the
first subparagraph undergoes or foresees disturbances on its
labour market which could seriously threaten the standard of
living or level of employment in a given region or
occupation, that Member State shall inform the Commission and
the other Member States thereof and shall supply them with
all relevant particulars. On the basis of this information,
the Member Stat may request the Commission to state that the
application of Articles 1 to 6 of Regulation (EEC) No 1612/68
be wholly or partially suspended in order to restore to
normal the situation in that region or occupation. The
Commission shall decide on the suspension and on the duration
and scope thereof not later than two weeks after receiving
such a request and shall notify the Council of such a
decision. Any Member State may, within two weeks from the
date of the Commission's Decision, request the Council to
annul or amend the Decision. The Council shall act on such a
request within two weeks, by qualified majority.
A Member
State referred to in the first subparagraph may, in urgent
and exceptional cases, suspend the application of Articles 1
to 6 of Regulation (EEC) No 1612/68, followed by a reasoned
ex-post notification to the Commission.
8. As long as
the application of Articles 1 to 6 of Regulation (EEC) No
1612/68 is suspended by virtue of paragraphs 2 to 5 and 7
above, Article 11 of the Regulation shall apply in the Czech
Republic with regard to nationals of the present Member
States, and in the present Member States with regard to Czech
nationals under the following conditions:
— the
members of a worker's family referred to in Article 10(1)(a)
of the Regulation, legally residing with the worker in the
territory of a Member State at the date of accession, shall
have, upon accession, immediate access to the labour market
of that Member State. This does not apply to family members
of a worker legally admitted to the labour market of that
Member State for a period of less than 12 months;
— the
members of a worker's family referred to in Article 10(1)(a)
of the Regulation, legally residing with the worker in the
territory of a Member State from a date later than the date
of accession, but during the period of application of the
transitional provisions laid down above, shall have access to
the labour market of the Member State concerned once they
have been resident in the Member State concerned for at least
eighteen months or from the third year following the date of
accession, whichever is the earlier. These provisions shall
be without prejudice to more favourable measures whether
national or resulting from bilateral agreements.
9. Insofar as
certain provisions of Directive 68/360/EEC may not be
dissociated from those of Regulation (EEC) No 1612/68 whose
application is deferred pursuant to paragraphs 2 to 5 and 7
and 8, the Czech Republic and the present Member States may
derogate from those provisions to the extent necessary for
the application of paragraphs 2 to 5 and 7 and 8. below until
the end of the seven year period following the date of
accession.
10. Whenever
national measures, or those resulting from bilateral
agreements, are applied by the present Member States by
virtue of the transitional provisions laid down above, the
Czech Republic may maintain in force equivalent measures with
regard to the nationals of the Member State or States in
question.
11. If the
application of Articles 1 to 6 of Regulation (EEC) No 1612/68
is suspended by any of the present Member States, the Czech
Republic may resort to the procedures laid down in paragraph
7 with respect to Estonia, Latvia, Lithuania, Hungary,
Poland, Slovenia or Slovakia. During any such period work
permits issued by the Czech Republic for monitoring purposes
to nationals of Estonia, Latvia, Lithuania, Hungary, Poland,
Slovenia or Slovakia shall be issued automatically.
12. Any
present Member State applying national measures in accordance
with paragraphs 2 to 5 and 7 to 9, may introduce, under
national law, greater freedom of movement than that existing
at the date of accession, including full labour market access.
From the third year following the date of accession, any
present Member State applying national measures may at any
time decide to apply Articles 1 to 6 of Regulation (EEC) No
1612/68 instead. The Commission shall be informed of any such
decision.
13. In order
to address serious disturbances or the threat thereof in
specific sensitive service sectors on their labour markets,
which could arise in certain regions from the transnational
provision of services, as defined in Article 1 of Directive
96/71/EC, and as long as they apply, by virtue of the
transitional provisions laid down above, national measures or
those resulting from bilateral agreements to the free
movement of Czech workers, Germany and Austria may, after
notifying the Commission, derogate from the first paragraph
of Article 49 of the EC Treaty with a view to limit in the
context of the provision of services by companies established
in the Czech Republic, the temporary movement of workers
whose right to take up work in Germany and Austria is subject
to national measures. The list of service sectors which may
be covered by this derogation is as follows:
— in
Germany:
Sector NACE (1)
code, unless otherwise specified
Construction,
including related branches 45.1 to 4;
Activities
listed in the Annex to Directive 96/71/EC
Industrial
cleaning 74.70 Industrial cleaning
Other
Services 74.87
Only
activities of interior decorators.
— in
Austria:
Sector NACE (1)
code, unless otherwise specified
Horticultural
service activities 01.41
Cutting,
shaping and finishing of stone 26.7
Manufacture
of metal structures and parts of structures 28.11
Construction,
including related branches 45.1 to 4;
Activities
listed in the Annex to Directive 96/71/EC
Security
activities 74.60
Industrial
cleaning 74.70
Home nursing
85.14
Social work
and activities without accommodations 85.32
To the extent
that Germany or Austria derogate from the first paragraph of
Article 49 of the EC Treaty in accordance with the preceding
subparagraphs, the Czech Republic may, after notifying the
Commission, take equivalent measures. The effect of the
application of this paragraph shall not result in conditions
for the temporary movement of workers in the context of the
transnational provision of services between Germany or
Austria and the Czech Republic which are more restrictive
than those prevailing on the date of signature of the Treaty
of Accession.
14. The
effect of the application of paragraphs 2 to 5 and 7 to 12
shall not result in conditions for access of Czech nationals
to the labour markets of the present Member States which are
more restrictive than those prevailing on the date of
signature of the Treaty of Accession. Notwithstanding the
application of the provisions laid down in paragraphs 1 to 13,
the present Member States shall, during any period when
national measures or those resulting from bilateral
agreements are applied, give preference to workers who are
nationals of the Member States over workers who are nationals
of third countries as regards access to their labour market.
Czech migrant workers and their families legally resident and
working in another Member State or migrant workers from other
Member States and their families legally resident and working
in the Czech Republic shall not be treated in a more
restrictive way than those from third countries resident and
working in that Member State or the Czech Republic
respectively. Furthermore, in application of the principle of
Community preference, migrant workers from third countries
resident and working in the Czech Republic shall not be
treated more favourably than nationals of the Czech Republic.
European Court of Justice: Judgments
and Cases before the Court
on
A.
Association EEC-Turkey and its Subsidiary Legislation
B.
Europe Agreements with countries in Central and Eastern
Europe
C.
Agreements with Maghreb countries (Algeria, Morocco, Tunisia)
D.
New EC immigration and asylum law under Title IV EC Treaty
E.
Schengen-rules incorporated in EC or EU law
A.
Decisions of the European Court of Justice on the EEC-Turkey
Association Agreement and its Subsidiary Legislation
Judgments on rights of workers and
their family members
| Case Name |
Date |
Case Number |
ECR Reference |
| Demirel |
30.9.1987 |
12/86 |
1987, 3719 |
| Sevince |
20.9.1990 |
C 192/89 |
1990, I-3461 |
| Kus |
16.12.1992 |
C 237/91 |
1992, I-6781 |
| Eroglu |
5.10.1994 |
C 355/93 |
1994, I-5113 |
| Bozkurt |
6.6.1995 |
C 434/93 |
1995, I-1475 |
| Tetik |
23.1.1997 |
C 171/95 |
1997, I-329 |
| Kadiman |
17.4.1997 |
C 351/95 |
1997, I-2133 |
| Eker |
29.5.1997 |
C-386/95 |
1997, I-2697 |
| Kol |
5.6.1997 |
C-285/95 |
1997, I-3069 |
| Günaydin |
30.9.1997 |
C-36/96 |
1997, I-5143 |
| Ertanir |
30.9.1997 |
C-98/96 |
1997, I-5179 |
| Akman |
19.11.1998 |
C-210/97 |
1998, I-7519 |
| Birden |
26.11.1998 |
C-1/97 |
1998, I-7747 |
| Nazli |
10.2.2000 |
C-340/97 |
2000, I-957 |
| Ergat |
16.3.2000 |
C-329/97 |
2000, I-1487 |
| Eyüp |
22.6.2000 |
C-65/98 |
2000, I-4747 |
| Bicakci |
19.9.2000 |
C-89/00 |
OJ 2000 C 95/4 |
| Kurz (Yuze) |
19.11.2002 |
C-188/00 |
2002, I-10691 |
| Birlikte |
8.5.2003 |
C-171/01 |
n/a |
| Abatay/Sahin |
21.10.2003 |
C317+369/01 |
n/a |
Standstill Provision on Self
Employment and Services in EEC-Turkey Protocol
| Name |
Date |
Number |
ECR reference |
| Savas |
11.5.2000 |
C-37/98 |
2000, I-2927 |
| Abatay/Sahin |
21.10.2003 |
C317+369/01 |
n/a |
Judgments on Association Council Decision
3/80
(social security of workers and their
family members)
| Taflan-Met |
10.9.1996 |
C 277/94 |
1996, I-4085 |
| Sürül |
4.5.1999 |
C262/96 |
1999, I-2685 |
| Kocak |
14.3.2000 |
C-102/98 |
2000, I-1287 |
References Pending Before the Court
on the EEC Turkey Agreement
| Case Name |
OJ Reference |
Case No. |
Subject |
| Commissie/Austria |
OJ 2002 C 84/43 |
C-465/01 |
Do equal treatment clauses |
| Dülger |
OJ 2002 C 3/18 |
C-427/01 |
Standstill clauses in Art. 13 Dec. 1/80 and Art.
41 Prot |
| Ayaz |
OJ 2002 C 261/2 |
C-275/02 |
Is stepchild family member under Art. 7 Decision
1/80? |
| Öztürk |
OJ 2003 C 7/8 |
C-373/02 |
Art. 9 Ass. Treaty and right to early retirement
pension |
| Cetinkaya |
OJ 2003 C 70/2 |
C-476/02 |
Art. 14 Decision 1/80: child born in Germany |
| Dörr and Ünal |
OJ 2003 C 135/13 |
C-136/03 |
Artt. 8 and 9 of Dir 64/221 applicable in 1/80
cases? |
| Mehmet Sedef |
OJ 2003 C 200/11 |
C-230/03 |
Sailor vol. loss Art. 6 status? Is second indent
condition for third indent of Art. 6? |
| Gürol |
OJ 2003 C 304/9 |
C-374/03 |
Art. 9 of 1/80 direct effect? |
| Aydinli |
OJ 2004 C 21/9 |
C-373/03 |
Does 3 years in prison end residence right Art 6
or 7? |
| Ergül Dogan |
OJ 2004 C 35/2 |
C-383/03 |
similar as case Aydinli |
B.
Europe Agreements with State in Central and Eastern Europe
| Case Name |
Date |
Case Number |
OJ Reference |
Agreement |
| Barkoci en Malik |
27.9.2001 |
C-257/99 |
2001, I-6557 |
EC-Czech |
| Kondova |
27.9.2001 |
C-235/99 |
2001, I-6427 |
EC-Bulgaria |
| Closczuk |
27.9.2001 |
C-63/99 |
2001, I-6369 |
EC-Poland |
| Jany |
20.11.2001 |
C-268/99 |
2001, I-8615 |
EC-Poland/Cz |
Reference Pending
Before the Court
| Case Name |
Case Number |
OJ Reference |
Agreement |
| Panayotova |
C-327/02 |
OJ 2002 C 274/20 |
Poland/Bulg/Slow |
| Encheva |
C-58/03 |
OJ 2003 C 83/12 |
EC-Bulgaria |
Equal Treatment
of Workers
| Case Name |
Date |
Case Number |
OJ Reference |
Agreement |
| Pokrzeptowicz |
29.1.2002 |
C-162/00 |
2002, I-1049 |
EC-Poland |
| Kolpak |
8.5.2003 |
C-438/00 |
2003, I-4135 |
EC-Slovakia |
[Simutkenov (pending), C-265/03
regarding limits on the fielding of foreign football players
during professional matches regarding the RUSSIA Agreement]
C. Association
Agreements with Morocco, Algeria, Tunisia
| Case Name |
Date |
Case Number |
ECR Reference |
| El Yassini |
2.3.1999 |
C-416/96 |
1999, I-1209 |
| Mesbah |
11.11.1999 |
C-179/98 |
I-7955 |
D. New EC immigration
and asylum law under Title IV EC Treaty
| Case Name |
Case Number |
OJ Reference |
| Georgescu |
C-51/03 |
OJ 2003 C 112/8 Visa Regulation 539/2001 and
Rumanian citizens |
F.
Schengen-rules incorporated in EC or EU law
Case C-503/03 (Commission v Spain) is an
infringement case on the Spanish refusal to grant visa to
third-country family members of Union citizens because they
are registered in the Schengen Information System under
Article 96 SIA.
The Court in its judgement of 11.2.2003
in Brügge (C-385/01) and Gözütok (C-187/01) on the basis
of Art. 35 EU Treaty interpreted the criminal law ne bis in
idem principle in Article 54 of the Schengen Implementing
Agreement.
Two new references on the ne-bis-in-idem-principle:
case C-469/03 (Miraglia) and case C-493/03 (Hiebeler), OJ
2004 C 21, p. 14 and 22.
The text of recent judgments of the
Court of Justice and of opinions of the Advocate General (AG)
can be found on the Court’s webside (http://europa.eu.int/cj)
under recent case law.
Kees Groenendijk
Centre for Migration Law
University of Nijmegen (NL)
February 2004
[2] This section
was prepared by Steve Peers, Professor of Law, Human Rights
Centre, University of Essex. For further detail and
analysis, see Rogers and Peers, eds., EU Immigration and
Asylum Law: Text and Commentary (Martinus Nijhoff, 2004,
forthcoming).
[5] COM (2001) 510.
[6] COM (2000) 578;
amended in COM (2002) 362, 18 Jun 2002.
[7] COM (2004) 102, 12 Feb. 2004, online at:
http://register.consilium.eu.int/pdf/en/04/st06/st06356.en04.pdf.
For the first reaction by Member States at an asylum working
party meeting of 17 Feb.2004, see: http://register.consilium.eu.int/pdf/en/04/st06/st06361.en04.pdf.
For an impact assessment, see: http://register.consilium.eu.int/pdf/en/04/st06/st06356-ad01.en04.pdf.
[9] Council doc.
15198/03, 4 Dec. 2003, discussed in detail in the last ILPA
European Update.
[10] Council doc. 5712/04, online at: http://register.consilium.eu.int/pdf/en/04/st05/st05712.en04.pdf
[12] Council doc. 5970/1/04, 13.2.04,
online at: http://register.consilium.eu.int/pdf/en/04/st05/st05970-re01.en04.pdf