EU Foreign Policy Between the Revolution and the Status Quo. IES Policy Brief Issue 2014/09/November 2014

Summary. When a new High Representative takes office, an opportunity presents itself to take a look at existing EU external policies and assess whether these are still sufficient to safeguard Europe’s interests in light of recent events. New strategic priorities have to be defined where necessary, not on each and every topic of foreign policy, but on those big issues that European nations can only deal with collectively, through the EU. How to pursue these strategic priorities is an equally important question. Looking for the right balance between a far-reaching reform agenda and a status quo policy, both of which can be detrimental to its interests, the EU can opt for pragmatic idealism as the new strategic concept for its foreign policy.

The Criminalisation of Irregular Migration in the European Union. CEPS Liberty and Security in Europe No. 80/2015

This paper offers an academic examination of the legal regimes surrounding the criminalisation of irregular migrants in the EU and of acts of solidarity with irregular migrants, such as assisting irregular migrants to enter or remain in the EU, and other behaviour that is motivated by humanitarian instincts. The research analyses EU law and its relationship with national provisions regarding the criminalisation of irregular migration and of acts of solidarity vis-á-vis irregular migrants. A comparative analysis was made of the laws of the UK, France and Italy, supplemented by an analysis of the laws of Germany, the Netherlands and Spain. By considering the role of public trust in fostering compliance with the law, the paper explores the impact of criminalisation measures on institutions’ authority to compel individuals to comply with the law (institutional legitimacy). The study finds that certain indicators question institutional legitimacy and reveals the varied nature and extent of penalties imposed by different member states. The paper concludes that there is an important role for public trust in immigration law compliance, not just in measures directed towards irregular migrants but also towards those acting in solidarity with irregular migrants.

The EU Counter-Terrorism Policy Responses to the Attacks in Paris: Towards an EU Security and Liberty Agenda. CEPS Liberty and Security in Europe No. 81/February 2015

This paper examines the main EU-level initiatives that have been put forward in the weeks following the attacks in Paris in January 2015, which will be discussed in the informal European Council meeting of 12 February 2015. It argues that a majority of these proposals predated the Paris shootings and had until that point proved contentious as regards their efficacy, legitimacy and lawfulness. The paper finds that EU counterterrorism responses raise two fundamental challenges: A first challenge is posed to the freedom of movement, Schengen and EU citizenship. Priority is being given to the expanded use of large-scale surveillance and systematic monitoring of all travellers including EU citizens, which stands in contravention of Schengen and the free movement principle. A second challenge concerns EU democratic rule of law. Current pressures calling for the adoption of measures such as the EU Passenger Name Record challenge the scrutiny roles held by the European Parliament and the Court of Justice of the EU on counterterrorism measures in a post-Lisbon Treaty setting. The paper proposes that the EU adopts a new European Agenda on Security and Liberty based on an EU security (criminal justice-led) cooperation model that is firmly anchored in current EU legal principles and rule of law standards. This model would call for ‘less is more’ concerning the use, processing and retention of data by police and intelligence communities. Instead, it would pursue better and more accurate use of data meeting the quality standards of evidence in criminal judicial proceedings.

Citizenship Deprivation: A Normative Analysis. Liberty and Security in Europe No. 82, 19 March 2015

Most critical analyses assess citizenship-deprivation policies against international human rights and domestic rule of law standards, such as prevention of statelessness, non-arbitrariness with regard to justifications and judicial remedies, or non-discrimination between different categories of citizens. This report considers instead from a political theory perspective how deprivation policies reflect specific conceptions of political community. We distinguish four normative conceptions of the grounds of membership in a political community that apply to decisions on acquisition and loss of citizenship status: i) a ‘State discretion’ view, according to which governments should be as free as possible in pursuing State interests when determining citizenship status; ii) an ‘individual choice’ view, according to which individuals should be as free as possible in choosing their citizenship status; iii) an ‘ascriptive community’ view, according to which both State and individual choices should be minimised through automatic determination of membership based on objective criteria such as the circumstances of birth; and iv) a ‘genuine link’ view, according to which the ties of individuals to particular States determine their claims to inclusion and against deprivation while providing at the same time objections against including individuals without genuine links. We argue that most citizenship laws combine these four normative views in different ways, but that from a democratic perspective the ‘genuine link’ view is normatively preferable to the others. The report subsequently examines five general grounds for citizenship withdrawal – threats to public security, non-compliance with citizenship duties, flawed acquisition, derivative loss and loss of genuine links – and considers how the four normative views apply to withdrawal provision motivated by these concerns. The final section of the report examines whether EU citizenship provides additional reasons for protection against Member States’ powers of citizenship deprivation. We suggest that, in addition to fundamental rights protection through EU law and protection of free movement rights, three further arguments could be invoked: toleration of dual citizenship in a political union, prevention of unequal conditions for loss among EU citizens, and the salience of genuine links to the EU itself rather than merely to one of its Member States.

Women's Rights in the Aftermath of Egypt's Revolution. Arab Citizenship Review No. 9, 26 August 2015 [also EUSpring Working Paper No. 5]

Addressing the issue of “women’s rights” in Egypt may seem like an easy topic from a purely legal standpoint, but the most enlightening way to do so is to adopt a holistic approach by understanding the political, social, cultural and class effects of this issue. Since 1952, people in Egypt have looked at “women’s rights” as a purely state matter, one characterised mainly by legal reforms. Until 2011, women’s rights were manipulated via a top-down approach by making changes in some policies and laws. Since 2011, with the emergence of the question of social movements, tackling women’s rights has been transformed via the use of certain tools and different perspectives. This is clearly manifested in the vast mobilisation that took place in governorates outside Cairo, which featured the use of artistic tools such as graffiti, story-telling performances, the production of feminist songs, open-microphone sessions, etc., in addition to the extensive use of social media and online campaigning to mainstream feminist ideologies and highlight violations experienced by women. Before 2011, the public space in Egypt was limited to citizens, political groups and civil society for employing legal approaches such as litigations and policy changes by direct pressure on authorities. The 2011 revolution opened the public space to the use of new tools that are not limited to protests and sit-ins, but also new media windows and new political forces who carried the question of certain rights in their agendas as well as the accessibility of different governmental actors. This paper will highlight different topics around women’s rights and gender issues in Egypt after 2011. This paper will review different gender issues after 2011, including the targeting of women in public spaces, women’s representation in decision-making bodies, legal reform, economic and social rights, and sexual and reproductive rights. It will also investigate how the feminist movement has changed and evolved since 2011, and to what degree women's issues and feminism can be analysed in a multidisciplinary way.

Enhancing the Common European Asylum System and Alternatives to Dublin. CEPS Liberty and Security in Europe No. 83/September 2015

Upon request by the LIBE committee, this study examines the reasons why the Dublin system of allocation of responsibility for asylum seekers does not work effectively from the viewpoint of Member States or asylum-seekers. It argues that as long as it is based on the use of coercion against asylum seekers, it cannot serve as an effective tool to address existing imbalances in the allocation of responsibilities among Member States. The EU is faced with two substantial challenges: first, how to prevent unsafe journeys and risks to the lives of people seeking international protection in the EU; and secondly, how to organise the distribution of related responsibilities and costs among the Member States. This study addresses these issues with recommendations aimed at resolving current practical, legal and policy problems.

L’Européanisation des politiques d’innovation en France: une révolution copernicienne? Le cas de la région Rhône-Alpes = "The Europeanization of innovation policies in France: a Copernican revolution? The case of Rhône-Alpes". Bruges Political Research Papers 42/2015.

No abstract.

Safe Harbour or into the storm? EU-US data transfers after the Schrems judgment. Liberty and security in Europe No. 85/November 2015

In its recent Schrems judgment the Luxembourg Court annulled Commission Decision 2000/520 according to which US data protection rules are sufficient to satisfy EU privacy rules regarding EU-US transfers of personal data, otherwise known as the ‘Safe Harbour’ framework. What does this judgment mean and what are its main implications for EU-US data transfers? In this paper the authors find that this landmark judgment sends a strong message to EU and US policy-makers about the need to ensure clear rules governing data transfers, so that people whose personal data is transferred to third countries have sufficient legal guarantees. Without such rules there is legal uncertainty and mistrust. Any future arrangement for the transatlantic transfer of data will therefore need to be firmly anchored in a framework of protection commensurate to the EU Charter of Fundamental Rights and the EU data protection architecture.

The EU and its Counter-Terrorism Policies after the Paris Attacks. Liberty and Security in Europe No. 84, 27 November 2015

This paper examines the EU’s counter-terrorism policies responding to the Paris attacks of 13 November 2015. It argues that these events call for a re-think of the current information-sharing and preventive-justice model guiding the EU’s counter-terrorism tools, along with security agencies such as Europol and Eurojust. Priority should be given to independently evaluating ‘what has worked’ and ‘what has not’ when it comes to police and criminal justice cooperation in the Union. Current EU counter-terrorism policies face two challenges: one is related to their efficiency and other concerns their legality. ‘More data’ without the necessary human resources, more effective cross-border operational cooperation and more trust between the law enforcement authorities of EU member states is not an efficient policy response. Large-scale surveillance and preventive justice techniques are also incompatible with the legal and judicial standards developed by the Court of Justice of the EU. The EU can bring further added value first, by boosting traditional policing and criminal justice cooperation to fight terrorism; second, by re-directing EU agencies’ competences towards more coordination and support in cross-border operational cooperation and joint investigations, subject to greater accountability checks (Europol and Eurojust +); and third, by improving the use of policy measures following a criminal justice-led cooperation model focused on improving cross-border joint investigations and the use of information that meets the quality standards of ‘evidence’ in criminal judicial proceedings. Any EU and national counter-terrorism policies must not undermine democratic rule of law, fundamental rights or the EU’s founding constitutional principles, such as the free movement of persons and the Schengen system. Otherwise, these policies will defeat their purpose by generating more insecurity, instability, mistrust and legal uncertainty for all.

What is happening to the Schengen borders? CEPS Liberty and Security in Europe No. 86, December 2015

What is happening to the Schengen borders? Is Schengen in ‘crisis’? This paper examines the state of play in the Schengen system in light of the developments during 2015. It critically examines the assertion that Schengen is ‘in crisis’ and seeks to set the record straight on what has been happening to the intra-Schengen border-free and common external borders system. The paper argues that Schengen is here to stay and that reports about the reintroduction of internal border checks are exaggerated as they are in full compliance with the EU rule of law model laid down in the Schengen Borders Code and subject to scrutiny by the European Commission. It also examines the legal challenges inherent to police checks within the internal border areas as having an equivalent effect to border checks as well as the newly adopted proposal for a European Border and Coast Guard system. The analysis shows that the most far-reaching challenge to the current and future configurations of EU border policies relates to ensuring that they are in full compliance with fundamental human rights obligations to refugees, effective accountability and independent monitoring of the implementation of EU legal standards. This should be accompanied by a transparent and informed discussion on which ‘Schengen’ and which 'common European Border and Coast Guard Agency' we exactly want within current democratic rule of law and fundamental rights remits.

Aftermath of the Maidan. Ukrainian society two years after the revolution. OSW Commentary Number 199/04.03.2016

Two years after the Revolution of Dignity, it is clear that hopes of a quick reconstruction and modernisation of the Ukrainian state as a political and institutional system have not been fulfilled. The resistance of the bureaucrats, politicians and oligarchs who make up the informal, corrupt systems has proven to be very strong, and the will of part of the political elite and the EU and the United States to implement the procedures they have suggested has proved insufficient. If not for the war and the economic collapse, which forced Kyiv to seek external financial assistance and political support, the modernisation of the state would have proceeded even more slowly and with yet greater difficulty.

Migration and Asylum Data for Policy-making in the European Union – The problem with numbers. CEPS Liberty and Security in Europe No. 89/March 2016

Among many other problems, the migration, humanitarian and policy crises in the European Union in 2015 and early 2016 have highlighted a pressing need for reliable, timely and comparable statistical data on migration, asylum and arrivals at national borders. In this fast-moving policy field, data production and the timeliness of dissemination have seen some improvements but the sources of data remain largely unchanged at national level. In this paper the author examines the reasons for some of the problems with the data for policy and for public discussion, and makes a set of recommendations that call for a complete and updated inventory of data sources and for an evaluation of the quality of data used for policy-making.

How can we enhance our security without damaging our liberty? For a Progressive and European Rehabilitation of Sovereignty. European Policy Brief No. 41, January 2016

How can we reinforce internal security without destroying basic freedoms? This dilemma will become increasingly topical in the context of rising terrorist threats and in view of some of the responses already put in place at the national level. Many observers have pointed out the threat that these measures pose to individual freedom. But few have highlighted their relative inefficiency. Indeed, if the right to security is one of the founding reasons for political government and one of its main sources of legitimacy, can states still guarantee this basic right? This article examines this dilemma and focuses more specifically on its implications for the notion and practice of sovereignty. It also sketches a strong, but nuanced, rescue of sovereignty at the European level in order to assure individual security while, at the same time, protecting our freedoms.

An EU mechanism on Democracy, the Rule of Law and Fundamental Rights. CEPS Paper in Liberty and Security in Europe No. 91/April 2016 Thursday, 21 April 2016

The European Union is founded on a set of common principles of democracy, the rule of law, and fundamental rights, as enshrined in Article 2 of the Treaty on the European Union. Whereas future Member States are vetted for their compliance with these values before they accede to the Union, no similar method exists to supervise adherence to these foundational principles after accession. EU history proved that this ‘Copenhagen dilemma’ was far from theoretical. EU Member State governments’ adherence to foundational EU values cannot be taken for granted. Violations may happen in individual cases, or in a systemic way, which may go as far as overthrowing the rule of law. Against this background the European Parliament initiated a Legislative Own-Initiative Report on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights and proposed among others a Scoreboard on the basis of common and objective indicators by which foundational values can be measured. This Research Paper assesses the need and possibilities for the establishment of an EU Scoreboard, as well as its related social, economic, legal and political ‘costs and benefits’.

Facilitating Mobility and Fostering Diversity: Getting EU Migration Governance to Respect the Human Rights of Migrants. CEPS Paper in Liberty and Security in Europe No. 92/May 2016

Migration towards Europe has surged over the past few years, overwhelming government authorities at the national and EU levels, and fuelling a xenophobic, nationalist, populist discourse linking migrants to security threats. Despite positive advances in the courts and worthy national initiatives (such as Italy’s Operation Mare Nostrum), the EU’s governance of migration and borders has had disastrous effects on the human rights of migrants. These effects stem from the criminalisation of migrants, which pushes them towards more precarious migration routes, the widespread use of administrative detention and the processing of asylum claims under the Dublin system, and now the EU–Turkey agreement. Yet, this paper finds that with the right political leadership, the EU could adopt different policies in order to develop and implement a human rights-based approach to migration that would seek to reconcile security concerns with the human rights of migrants. Such an approach would enable member states to fully reap the rewards of a stable, cohesive, long-term migration plan that facilitates and governs mobility rather than restricts it at immense cost to the EU, the member states and individual migrants.