What role for migration policy in the Ukraine crisis? CEPS Commentaries, 27 March 2014

While the geopolitics of the Ukraine crisis have dominated headlines, little attention has been paid to the potential challenges arising from the movement of people from the region to the EU. Yet recent history should tell us this could be a grave oversight. As we witnessed during the Arab Spring in 2011, political upheaval can result in people fleeing their state in fear of persecution or seeking to leave their state in search of new horizons and economic opportunities. The EU would do well to learn from that experience and the policy failures that resulted from the Union’s response of closing its borders and returning people to Africa. This Commentary argues that it is critical that – independently of the still uncertain outcome of the Ukraine crisis – the EU formulates and implements a credible policy strategy addressing the potential impact and benefits of mobility between Ukraine and the EU.

The Political and Judicial Life of Metadata: Digital Rights Ireland and the Trail of the Data Retention Directive. CEPS Paper in Liberty and Security No. 65, May 2014

This paper examines the challenges facing the EU regarding data retention, particularly in the aftermath of the judgment Digital Rights Ireland by the Court of Justice of the European Union (CJEU) of April 2014, which found the Data Retention Directive 2002/58 to be invalid. It first offers a brief historical account of the Data Retention Directive and then moves to a detailed assessment of what the judgment means for determining the lawfulness of data retention from the perspective of the EU Charter of Fundamental Rights: what is wrong with the Data Retention Directive and how would it need to be changed to comply with the right to respect for privacy? The paper also looks at the responses to the judgment from the European institutions and elsewhere, and presents a set of policy suggestions to the European institutions on the way forward. It is argued here that one of the main issues underlying the Digital Rights Ireland judgment has been the role of fundamental rights in the EU legal order, and in particular the extent to which the retention of metadata for law enforcement purposes is consistent with EU citizens’ right to respect for privacy and to data protection. The paper offers three main recommendations to EU policy-makers: first, to give priority to a full and independent evaluation of the value of the data retention directive; second, to assess the judgment’s implications for other large EU information systems and proposals that provide for the mass collection of metadata from innocent persons, in the EU; and third, to adopt without delay the proposal for Directive COM(2012)10 dealing with data protection in the fields of police and judicial cooperation in criminal matters.

A New Start for the EU’s Area of Freedom, Security and Justice? Setting of Priorities for the New European Commission. CEPS Commentary, 23 September 2014

The nomination of a First Vice-President (Frans Timmermans) in charge of rule of law and the EU Charter of Fundamental is one of the more far-reaching innovations contained in the new institutional shape of the Juncker Commission. This CEPS Commentary by Sergio Carrera and Elspeth Guild welcomes the fact that a new fundamental rights and rule of law First Vice-President will exercise a coordination and advisory role over the other two JHA Commissioners – Věra Jourová, responsible for Justice, Consumers and Gender Equality (DG Justice); and Dimitris Avramopoulos, responsible for Migration and Home Affairs (DG Home Affairs), but expresses a note caution whether this new role and triangular relationship can be made to work effectively in practice.

Priorities for the Juncker Commission: Policy recommendations and advice from the research team at CEPS. CEPS Special Report No. 92, 22 October 2014

In the months leading up to his nomination as President of the European Commission by the European Council in June 2014 through to his approval by the European Parliament in mid-July and finally his approval at a second special summit in August, CEPS’ researchers have closely followed the travails of Jean-Claude Juncker. We have also carefully studied his fundamental restructuring of the College in re-grouping commissioners around seven project teams, each headed by a vice-president. In our view, these changes promise to improve internal coordination, policy-making and transparency of rule-making and hopefully will reduce the personalisation of portfolios. This Special Report brings together under a single cover a series of 14 separate commentaries prepared by senior CEPS researchers, offering their assessment of these profound changes underway and their policy advice to the new commissioners from the perspective of their field of specialisation.

Rethinking the Attractiveness of EU Labour Immigration Policies: Comparative perspectives on the EU, the US, Canada and beyond

Is Europe's immigration policy attractive? One of the priorities driving current EU debates on labour immigration policies is the perceived need to boost Europe's attractiveness vis-á-vis 'talented' and 'highly skilled' immigrants. The EU sees itself playing a role in persuading immigrants to choose Europe over other competing destinations, such as the US or Canada. This book critically examines the determinants and challenges characterising discussions focused on the attractiveness of labour migration policies in the EU as well as other international settings. It calls for re-thinking some of the most commonly held premises and assumptions underlying the narratives of ‘attractiveness’ and ‘global competition for talent’ in migration policy debates. How can an immigration policy, in fact, be made to be ‘attractive’ and what are the incentives at play (if any)? A multidisciplinary team of leading scholars and experts in migration studies address the main issues and challenges related to the role played by rights and discrimination, qualifications and skills, and matching demand and supply in needs-based migration policies. The experiences in other jurisdictions such as South America, Canada and the United States are also covered: Are these countries indeed so ‘attractive’ and ‘competitive’, and if so what makes them more attractive than the EU? On the basis of the discussions and findings presented across the various contributions, the book identifies a number of priorities for policy formulation and design in the next generation of EU labour migration policies. In particular, it highlights important initiatives that the new European Commission should focus on in the years to come.

The Juncker Commission: A New Start for EU Justice and Home Affairs Policy? CEPS Essay No. 15, 18 September 2014

The team comprising Jean-Claude Juncker’s Commission was revealed on 10 September 2014: does it herald a new start for Justice and Home Affairs (JHA) cooperation in the EU? This essay outlines the main structural and thematic changes introduced by the new Commission, in particular those with direct or indirect relevance to EU JHA or the Area of Freedom, Security and Justice (AFSJ) policies. It also reflects on the new institutional configuration and what it means for the substantive work of the new Commission services and for their intra- and inter-institutional relations. The essay concludes with a set of proposed policy priorities for the new Commission.

The European Council’s Guidelines for the Area of Freedom, Security and Justice 2020: Subverting the ‘Lisbonisation’ of Justice and Home Affairs? CEPS Essay No. 13, 14 July 2014

In its Conclusions of 26-27 June 2014, the European Council has adopted the new “Strategic Guidelines for Legislative and Operational Planning for the coming years within the EU’s Area of Freedom, Security and Justice (AFSJ)”. These Guidelines reveal a pre-Lisbon Treaty mindset among the EU member states and the Justice and Home Affairs Council. This essay argues that the Guidelines are mainly driven by the interests and agendas of national Ministries of Interior and Justice and are only “strategic” to the extent that they aim at first, re-injecting ‘intergovernmentalism’ or bringing back the old EU Third Pillar ways of working to the new EU institutional setting of the AFSJ and second, at sidelining the EU Charter of Fundamental Rights and rule of law in the AFSJ. The paper argues that the European Council Guidelines seek to prevent the advances in Justice and Home Affairs cooperation as envisaged in the Treaty of Lisbon, particularly its emphasis on supranational democratic, legal and judicial accountability. As a consequence of this move to ‘de-Lisbonise’ JHA cooperation, fundamental rights and rule of law-related initiatives will be neglected and the interest of the individual will be displaced from the centre of gravity in the coming AFSJ 2020 policy agenda.

EU Borders and Their Controls: Preventing unwanted movement of people in Europe? CEPS Essay No. 6, 14 November 2013

his Essay attempts to take a step back from the tragic event in the first week of October 2013, when a boat capsized off the Italian island of Lampedusa and some 300 persons drowned seeking safe harbour. It sets out to examine the issue of EU border controls from the perspectives of the technologies, new and old, building on a variety of scholarly disciplines to understand what is happening to border controls on the movement of persons in the EU and why the results are so deadly. The Essay opens with an overview of what actually happens at the EU’s external borders. It then moves on to assess the old and new set of border control technologies that are deployed at the EU external borders, and how new technologies such as those based on automated controls and biometrics, are transforming the classical principles of European border controls. It then covers the reasons why people are refused admission at the EU’s external borders and the extent to which new border and surveillance technologies would assist in the effective controls in light of EU border law. Conclusions are finally offered on the articulation between the facts of EU border controls on persons and the claims and proposals for new technologies that are emerging from the EU institutions.

New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection. CEPS Liberty and Security in Europe No. 77/ January 2015

This study examines the workings of the Common European Asylum System (CEAS), in order to assess the need and potential for new approaches to ensure access to protection for people seeking it in the EU, including joint processing and distribution of asylum seekers. Rather than advocating the addition of further complexity and coercion to the CEAS, the study proposes a focus on front-line reception and streamlined refugee status determination, in order to mitigate the asylum challenges facing Member States, and vindicate the rights of asylum seekers and refugees according to the EU acquis and international legal standards. Joint processing could contribute to front-line reception and processing capacity, but is no substitute for proper investment in national systems. The Dublin system as currently configured leads inexorably to increasing coercion and detention, and must thus be reconfigured to remove coercion as a principle and ensure consistency with human rights and other fundamental values of the EU.

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.

No Move without Free Movement: The EU-Swiss controversy over quotas for free movement of persons. CEPS Policy Brief No. 331, 23 April 2015

The focus of this Policy Brief is the Swiss referendum of 2014 against ‘mass immigration’ in Switzerland. It identifies the challenges that a quota on EU citizens’ free movement rights to Switzerland would pose to EU-Swiss relations, considering: i) the value of freedom of movement in the EU and its indivisibility from the internal market and other economic freedoms; ii) the specificity of the EU legal system following the Lisbon Treaty that established democratic and judicial accountability mechanisms; iii) the lack of supranational judicial oversight of the EU-Switzerland agreements framework; and iv) the existence of the so-called guillotine mechanism, according to which the termination of the Free Movement Agreement would entail the automatic termination of the other agreements with the EU. The authors set out a number of options and consider their implications for EU-Swiss relations.

Access to Electronic Data by Third-Country Law Enforcement Authorities, Challenges to EU Rule of Law and Fundamental Rights. Center for European Policy Studies, 2015

This study examines the challenges posed to European law by third country access to data held by private companies for the purposes of law enforcement. It pays particular attention to the implications for rule of law and fundamental rights of foreign authorities’ direct access to electronic information falling outside pre-established channels of supranational cooperation. A special focus is given to EU-US relations and the practical issues emerging in transatlantic relations covering mutual legal assistance and evidence gathering for law enforcement purposes in criminal proceedings.

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.

Can the new refugee relocation system work? Perils in the Dublin logic and flawed reception conditions in the EU. CEPS Policy Brief No. 332, October 2015 Thursday, 1 October 2015

This Policy Brief argues that the newly adopted EU temporary relocation (quota) system constitutes a welcome yet timid step forward in addressing a number of central controversies of the current refugee debate in Europe. Two main challenges affect the effective operability of the new EU relocation model. First, EU member states’ asylum systems show profound (on-the-ground) weaknesses in reception conditions and judicial/administrative capacities. These prevent a fair and humane processing of asylum applications. EU states are not implementing the common standards enshrined in the EU reception conditions Directive 2013/33. Second, the new relocation system constitutes a move away from the much-criticised Dublin system, but it is still anchored to its premises. The Dublin system is driven by an unfair and unsustainable rule according to which the first EU state of entry is responsible for assessing asylum applications. It does not properly consider the personal, private and family circumstances or the preferences of asylum-seekers. Policy Recommendations In order to respond to these challenges, the Policy Brief offers the following policy recommendations: The EU should strengthen and better enforce member states’ reception capacities, abolish the current Dublin system rule of allocation of responsibility and expand the new relocation distribution criteria to include in the assessment (as far as possible) asylum-seekers’ preferences and personal/family links to EU member states. EU member countries should give priority to boosting their current and forward-looking administrative and judicial capacities to deal and welcome asylum applications. The EU should establish a permanent common European border and asylum service focused on ensuring the highest standards through stable operational support, institutional solidarity across all EU external borders and the practical implementation of new distribution relocation criteria.

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.