CEEOL - Search Result

#47 An Assessment of the Commission’s 2011 Schengen Governance Package. Preventing abuse by EU member states of freedom of movement?

Author(s): Sergio Carrera / Language(s): English / Publication Year: 2012

The Schengen system has been at the centre of sharp controversy throughout 2011 and the early months of 2012 a rising from attempts by several member state governments to challenge the right to the free movement of persons and the abolition of internal border checks. The speech delivered by Nicolas Sarkozy early this month (March 2012), as part of the French presidential campaign, in which he threatened to suspend France’s participation in Schengen illustrates this phenomenon. This paper examines the European Commission’s response to the Schengen controversies, namely the Schengen Goverance Package publishedin September 2011 and currently under negotiation in Council and the European Parliament. It assesses the scope and added value of the Package’s two new legislative proposals (a new Schengen evaluation mechanism and revised rules for restating internal border checks) by looking at the origins and features ofthe debate surrounding liberty of circulation in the Schengen area.

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#48 Two Boats in the Mediterranean and their Unfortunate Encounters with Europe’s Policies towards People on the Move

Author(s): Leonhard Den Hertog / Language(s): English / Publication Year: 2012

This paper examines two recent events in which people on the move making their way from Libya to Europe across the Mediterranean were either abandoned to die at sea or ‘pushed back’ (Hirsi case). It argues that these two cases are not incidental or isolated but rather part of a broader situation of concern in the Mediterranean. The paper highlights this situation and also connects it to Europe’s response to migratory flows during the Arab Spring. On thebasis of independent reports, case law and first-hand accounts, it attributes these tragedies to two fundamental structural deficiencies in Europe’s approach to people on the move in the Mediterranean: 1) a general lack of accountability, among the most salient of which are thelack of legal clarity for SAR (search & rescue) and disembarkation obligations as well as alack of monitoring of what actually happens in the Mediterranean and 2) a lack of solidarity amongst European states as well as across the Mediterranean. The paper then goes on to propose recommendations to correct those cross-cutting deficiencies.

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#49 The Court of Justice of the European Union as a Fundamental Rights Tribunal. Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice

Author(s): Sergio Carrera,Marie De Somer,Bilyana Petkova / Language(s): English / Publication Year: 2012

This paper reflects on the challenges facing the effective implementation of the new EU fundamental right sarchitecture that emerged from the Lisbon Treaty. Particular attention is paid to the role of the Court of Justice of the European Union (CJEU) and its ability to function as a ‘fundamental rights tribunal’. Thepaper first analyses the praxis of the European Court of Human Rights in Strasbourg and its long-standing experience in overseeing the practical implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Against this analysis, it then examines the readiness of the CJEU to live up to its consolidated and strengthened mandate on fundamental rights as one of the prime guarantors of the effective implementation of the EU Charter of Fundamental Rights. We specifically review the role of‘third-party interventions’ by non-governmental organisations, international and regional human rights actors as well as ‘interim relief measures’ when ensuring effective judicial protection of vulnerable individuals incases of alleged violations of fundamental human rights. To flesh out our arguments, we rely on examples within the scope of the relatively new and complex domain of EU legislation, the Area of Freedom, Securityand Justice (AFSJ), and its immigration, external border and asylum policies.

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#50 Trends and Gaps in the Academic Literature on EU Labour Migration Policies

Author(s): Marie De Somer / Language(s): English / Publication Year: 2012

This paper provides an overview of the ‘state of the art’ in the academic literature on EU labour migration policies. It forms part of the research agenda of Work Package 18 of the NEUJOBS project, which aims at reviewing legislation and practices regarding the labour market inclusionand protection of rights of different categories of foreign workers in European labour markets. Accordingly, particular attention is paid to the works of scholars who evaluate the status of rights of third-country national workers in relation to labour market access, employment security, social integration, etc., in European legislation on labour immigration. More specifically, the review has selected those scholarly works that focus specifically on analysingthe manner in which policy-makers have addressed the granting of rights to non-EU migrant workers, and the manner in which policy agendas – through the relevant political and institutional dynamics – have found their translation in the legislation adopted.

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#51 Does the Stockholm Programme matter? The Struggles over Ownership of AFSJ Multiannual Programming

Author(s): Elspeth Guild,Sergio Carrera / Language(s): English / Publication Year: 2012

Does the 2009 Stockholm Programme matter? This paper addresses the controversies experienced at EU institutional levels as to ‘who’ should have ownership of the contours of the EU’s policy and legislative multiannual programming in the Area of Freedom, Security and Justice (AFSJ) in a post-Lisbon Treaty landscape. It examines the struggles around the third multiannual programme on the AFSJ, i.e. the Stockholm Programme, and the dilemmas affecting its implementation. The latest affair to emerge relates to the lack of fulfilment by the European Commission of the commitment to provide a mid-term evaluation of the Stockholm Programme’s implementation by mid-2012, as requested by both the Council and the European Parliament.

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#52 Justice and Home Affairs Databases and a Smart Borders System at EU External Borders. An Evaluation of Current and Forthcoming Proposals

Author(s): Didier Bigo,Sergio Carrera,Ben Hayes,Nicholas Hernanz,Julien Jeandesboz / Language(s): English / Publication Year: 2012

This study examines current and forthcoming measures related to the exchange of data and information in EU Justice and Home Affairs policies, with a focus on the ‘smart borders’ initiative. It argues that there is no reversibility in the growing reliance on such schemes and asks whether current and forthcoming proposals are necessary and original. It outlines the main challenges raised by the proposals, including issues related to the right to data protection, but also to privacy and non-discrimination.

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#53 EU Home Affairs Agencies and the Construction of EU Internal Security

Author(s): Joanna Parkin / Language(s): English / Publication Year: 2012

Regulatory agencies such as Europol, Frontex, Eurojust, CEPOL as well as bodies such as OLAF, have over the past decade become increasingly active within the institutional architecture constituting the EU’s Area of Freedom, Security and Justice and are now placed at the forefront of implementing and developing the EU’s internal security model. A prominent feature of agency activity is the large-scale proliferation of‘knowledge’ on security threats via the production of policy tools such as threat assessments, risk analyses, periodic and situation reports. These instruments now play a critical role in providing the evidence-base that supports EU policy making,with agency-generated ‘knowledge’ feeding political priority settingand decision-making within the EU’s new Internal Security Strategy (ISS).

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#54 Russia and the Common Space on Freedom, Security and Justice

Author(s): Olga Potemkina,Raül Hernández i Sagrera / Language(s): English / Publication Year: 2013

EU-Russia cooperation in the framework of the Common Space on Freedom, Security and Justice, launched almost a decade ago in 2003, has borne fruit more in the security aspects than the justice and liberty-related policy areas. This study assesses the uneven cooperation onjustice and home affairs between the EU and Russia, while delving into the intersection between cooperation on justice, liberty and security and the promotion of human rights, democracy and rule of law in EU-Russia relations. The study concludes by proposing a set of policy recommendations to the LIBE Committee for playing a more active role in this important field of cooperation between the EU and Russia.

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#56 The EU’s Paradoxical Efforts at Tracking the Financing of Terrorism: From criticism to imitation of dataveillance

Author(s): Anthony Amicelle / Language(s): English / Publication Year: 2013

In July 2011, the European Commission published a Communication aimed at setting out different options for establishing a European terrorist finance tracking system (TFTS). The Communication followed the adoption of the EU-US agreement on the US Terrorist Finance TrackingProgram (TFTP) in 2010. The agreement concluded various series of national, European and transatlantic negotiations after the disclosure through public media of the US TFTP in 2006. This paper takes stock of the wide range of controversies surrounding this security-focused programme with dataveillance capabilities. After stressing the impact of the US TFTP on international relations, the paper argues that the EU-US agreement primarily has the effect of shifting in formation-sharing practices from the justice/judicial/penal/criminal investigation framework into the security/intelligence/administrative/prevention context as the main rationale. The paper then questions the TFTP-related conception of mass intelligence through large-scale databases and transnational communication of bulk data in the name of targeted surveillance. Following an examination of the project creating an EU system equivalent to the TFTP, the paper emphasises the fundamental paradox of transatlantic security matters, in which European criticisms of American programmes tend to be ultimately translated into EU imitation of US dataveillance practices.

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#57 Survey on Rules on Loss of Nationality in International Treaties and Case Law

Author(s): René de Groot / Language(s): English / Publication Year: 2013

This paper offers a picture of the obligations existing under international and European law inrespect of the loss of nationality. It describes international instruments including obligations inthis field with direct relevancy for the loss of nationality of Member States of the European Union, but also obligations regarding loss of nationality in regional non-European treaties. Attention is given to two important judicial decisions of the European Court of Justice (Janko Rottmann) and the European Court of Human Rights (Genovese v Malta) regarding nationality. Special attention is devoted to Article 15 of the Universal Declaration of Human Rights, which forbids the arbitrary deprivation of nationality. A survey is provided of possible sub-principles that can be derived from this rule. Finally, some observation are made on the burden of proof incases of loss of nationality.

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#58 The ‘Lisbonisation’ of the European Parliament. Assessing progress, shortcomings and challenges for democratic accountability in the area of freedom, security and justice

Author(s): Sergio Carrera,Nicholas Hernanz,Joanna Parkin / Language(s): English / Publication Year: 2013

This Briefing Paper examines the performance of the European Parliament (EP) in EU AFSJ law and policy-making from the entry into force of the Lisbon Treaty until the end of the firsthalf of 2013. The paper situates the EP in the new post-Lisbon institutional setting, documenting its transition to ‘AFSJ decision-maker’, and its new powers to shape and make policy covering the EU’s internal and external security agenda. While the paper finds that theEP has become an active co-owner of the EU AFSJ post-Lisbon, with the Parliament demonstrating a dynamic adjustment to its new post-Lisbon role and powers, the authors identify a set of new developments and challenges that have arisen in the conduct of democratic accountability by the EP in the AFSJ since 2009, which call for critical reflection ahead of the new parliamentary term 2014-2019 and the post-2014 phase of the EU’s AFSJ.

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#59 Current Challenges regarding the International Refugee Law, with focus on EU Policies and EU Co-operation with UNHCR

Author(s): Violeta Moreno-Lax,Elspeth Guild / Language(s): English / Publication Year: 2013

From an examination of the instruments of the Common European Asylum System (CEAS) and related policy measures regarding border surveillance and migration management, two inter-related issues stand out as particularly sensitive: Access to asylum and responsibility for refugee protection.The prevailing view, supported by UNHCR and others, is that responsibility for the care of asylum seekers and the determination of their claims falls on the state within whose jurisdiction the claim is made. However, the possibility to shift that responsibility to another state through inter-state cooperation or unilateral mechanisms undertaken territorially as well as abroad has been a matter of great interest to EU Member States and institutions. Initiatives adopted so far challenge the prevailing view and have the potential to undermine compliance with international refugee and human rights law.

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#60 Why come here if I can go there? Assessing the ‘Attractiveness’ of the EU’s Blue Card Directive for ‘Highly Qualified’ Immigrants

Author(s): Katharina Eisele / Language(s): English / Publication Year: 2013

This paper analyses the attractiveness of the EU’s Blue Card Directive – the flagship of the EU’s labour immigration policy – for so-called ‘highly qualified’ immigrant workers from outside the EU. For this purpose, the paper deconstructs the understanding of ‘attractiveness’ in the Blue Card Directive as shaped by the various EU decision-making actors during the legislative process. It is argued that the Blue Card Directive sets forth minimum standards providing for a common floor –not a common ceiling: the Directive did not, as originally envisaged by the European Commission, create one European highly skilled admission scheme. This raises questions regarding its concreteuse. A critical focus is placed on the personal scope of the Blue Card Directive and the level of rights offered, and a first comparative perspective on the implementation of the Directive in five member states is provided.

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#61 Mass Surveillance of Personal Data by EU Member States and its Compatibility with EU Law

Author(s): Didier Bigo,Sergio Carrera,Nicholas Hernanz,Julien Jeandesboz,Joanna Parkin,Francesco Ragazzi,Amandine Scherrer / Language(s): English / Publication Year: 2013

In the wake of the disclosures surrounding PRISM and other US surveillance programmes, this paper assesses the large-scale surveillance practices by a selection of EU member states: the UK, Sweden, France, Germany and the Netherlands. Given the large-scale nature of these practices, which represent a reconfiguration of traditional intelligence gathering, the paper contends that an analysis of European surveillance programmes cannot be reduced to a question of the balance between data protection versus national security, but has to be framed in terms of collective freedoms and democracy. It finds that four of the five EU member states selected for in-depth examination are engaging in some form of large-scale interception and surveillance of communication data, and identifies parallels and discrepancies between these programmes and the NSA-run operations.

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#61 The Criminalisation of Migration in Europe. A State-of-the-Art of the Academic Literature and Research

Author(s): Joanna Parkin / Language(s): English / Publication Year: 2013

In the last 30 years, a clear trend has come to define modern immigration law and policy. A set of seemingly disparate developments concerning the constant reinforcement of border controls, tightening of conditions of entry, expanding capacities for detention and deportation and the proliferation of criminal sanctions for migration offences, accompanied by an anxiety on the part of the press, public and political establishment regarding migrant criminality can now be seen to form a definitive shift in the European Union towards the so-called ‘criminalisation of migration’. This paper aims to provide an overview of the ‘state-of-the-art’ in the academic literature and EU research on criminalisation of migration in Europe. It analyses three key manifestations of the so called ‘crimmigration’ trend: discursive criminalisation; the use of criminal law for migration management; and immigrant detention, focusing both on developments in domestic legislation of EU member states but also the increasing conflation of mobility, crime and security which has accompanied EU integration.

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#64 How much does EU citizenship cost? The Maltese citizenship-for-sale affair: A breakthrough for sincere cooperation in citizenship of the union?

Author(s): Sergio Carrera / Language(s): English / Publication Year: 2014

How much does European citizenship cost in the EU? This was the question that has raised so much controversy over the Maltese citizenship-for-sale programme. The outright selling of Maltese nationality to rich foreigners led to unprecedented responses by the European Parliament and European Commission. This paper examines theaffair and its relevance for current and future configurations of citizenship of the EU. It studies the extent to which member states are still free to lay down the grounds for the acquisition and loss of nationality without any EU supervision and accountability. It provides a comparative overview of member state schemes and the exact pricefor buying citizenship and a residency permit in the EU. It is argued that the EU’s intervention on the Maltese citizenship-for-sale affair constitutes a legal precedent for assessing the lawfulness of passport-for-sale or golden migration programmes in other EU member states. The affair has also revealed the increasing relevance of a set of European and international legal principles limiting member states’ discretion over citizenship matters and providing a supranational constellation of accountability venues scrutinising the impact of their decisions overcitizenship of the Union.

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#65 The Political and Judicial Life of Metadata: Digital Rights Ireland and the Trail of the Data Retention Directive

Author(s): Sergio Carrera,Elspeth Guild / Language(s): English / Publication Year: 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.

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#66 Reflections on quasi-loss of nationality in comparative, international and European perspective

Author(s): Patrick Wautelet,René de Groot / Language(s): English / Publication Year: 2014

This paper focuses on situations in which a person is said never to have had the nationality of a country, even though (s)he assumed (and in many cases the authorities of the country concerned shared that assumption) that (s)he possessed that nationality. Contrary to situations of loss of nationality, where something is taken away that had existed, quasi-loss involves situations inwhich nationality was never acquired. This contribution seeks to examine whether a person should under certain circumstances be protected against quasi-loss of nationality. In order to doso, the paper first maps out situations of quasi-loss in EU Member States, describing typical cases in which a person never acquired the nationality of the country, although (s)he was at some time considered as a national. Drawing on this taxonomy, the paper attempts to uncover whether national, European and international laws offer some protection, and if yes, to which extent, for situations of quasi-loss. It concludes with outlining best practices which Member States should comply with in handling such situations.

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#67 The US Labour Immigration Scheme – All about being attractive? EU Perceptions and Stakeholders’ Perspectives Reviewed

Author(s): Katharina Eisele / Language(s): English / Publication Year: 2014

Labour immigration schemes that effectively attract qualified immigrant workers are a policy priority for many governments. But what are ‘attractive’ labour immigration schemes and policies? To whom are (or should) such policies (be) attractive? In Europe, the US is often portrayed as one of the most ‘attractive’ countries of immigration – if not the most ‘attractive’. This paper aims to analyse and provide a better understanding of the elements of the US immigration system that are supposedly attractive to foreign workers, by examining key features of the current and prospective US labour immigration rules. The paper finds that ‘attractiveness’ in this policy context is a highly malleable and flexible concept: What might be ‘attractive’ to one key stakeholder might not be to another.

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#68 Humanitarian Visas: Option or obligation?

Author(s): Ulla Iben Jensen / Language(s): English / Publication Year: 2014

Third-country nationals seeking protection have no EU-wide legal channels at present for entering EU territory and triggering protection mechanisms under the Common European Asylum System. As a result, many embark on hazardous journeys, with concomitant risks and loss of human life. The absence of ‘protection-sensitive’ mechanisms for accessing EU territory, along with EU external and extraterritorial border and migration management and control, undermine Member States' refugeeand human rights obligations. Humanitarian visas may offer a remedy in this regard by enabling third-country nationals to apply in situ for entry to EU territory on humanitarian grounds or becauseof international obligations. This study asks whether the existing Visa Code actually obliges Member States to issue humanitarian visas.

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