1. XII Area of freedom, security and justice: An Overview

2. Table of contents 1.Introduction 2.Schengen Area 3.Policies on border checks, asylum and immigration 4.Judicial cooperation in civil matters 5.Judicial cooperation in criminal matters 6.Police cooperation 2

3. 1. Introduction

4. One of the objectives of European integration Art. 3, para. 2, TEU “The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime”. Art. 4, par. 2 j, TFEU The area of freedom, security and justice is an area of shared competence between the Union and the Member States 4

5. Title V TFEU Policies on border checks, asylum and immigration Judicial cooperation in civil matters Judicial cooperation in criminal matters Police cooperation ↓ Art. 72 TFEU “This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. 5

6. General provisions The EU shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals and stateless persons. The EU shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. The EU shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. 6

7. Governance: special characteristics The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice. The acts referred to the Judicial cooperation in criminal matters and the Police cooperation, together with the measures which ensure administrative cooperation in the areas covered by Title V, shall be adopted: a) on a proposal from the Commission, or b) on the initiative of a quarter of the Member States. National Parliaments ensure that the proposals and legislative initiatives submitted in the areas of the Judicial cooperation in criminal matters and of the Police cooperation comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality. 7

8. Standing Committee on operational cooperation on internal security: it ensures an effective cooperation and coordination in areas covered by police and customs cooperation, and by external border control authorities. Where appropriate, it also covers judicial cooperation in criminal matters when relevant to operational cooperation in the area of internal security. The Standing Committee will not be involved in the conducting of operations or in the preparation of legislative acts. With regard to the occurrence of a terrorist attack or a natural or man-made disaster within the EU, the Standing Committee will assist the Council in accordance with the solidarity clause in Art. 222 TFEU. The Standing Committee will help ensure consistency in actions taken by Eurojust, Europol, the European External Borders Agency (Frontex) and other relevant bodies. These bodies, when appropriate, will be invited to attend the meetings of the Standing Committee as observers. 8

9. 2. Schengen Area

10. Objectives of the Schengen Area Abolition of internal border controls Controls on the basis of identical procedures at external borders 10

11. The Schengen Agreement was signed on 14 June 1985 by five of the ten EC member States. It led to the creation of the Schengen Area on 26 March 1995. The Agreements and the rules adopted under them were entirely separate from the EC integration process, until they were incorporated in the framework of the EU by Treaty of Amsterdam, in 1997 (Protocol No. 19). The Schengen Area currently consists of 26 States, including 4 which are not members of the EU (Iceland, Norway, Switzerland and Liechtenstein). Cyprus, which joined the EU in 2004, Bulgaria and Romania, which joined the EU in 2007, and Croatia, which joined the EU in 2014, are legally bound to join the Schengen Area, when they will comply with certain conditions. De facto, the Schengen Area also includes three European micro-states, Monaco, San Marino and the Vatican City, that maintain open or semi-open borders with other Schengen member countries. 11

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13. Conditions for joining the Schengen Area Joining the Schengen Area is not merely a political decision. Countries must also fulfil a list of pre-conditions, such as be prepared and have the capacity to: take responsibility for controlling the external borders on behalf of the other Schengen States and for issuing uniform Schengen visas; efficiently cooperate with law enforcement agencies in other Schengen States in order to maintain a high level of security once border controls between Schengen countries are abolished; apply the common set of Schengen rules (the so-called "Schengen acquis"), such as controls of land, sea and air borders (airports), issuing of visas, police cooperation and protection of personal data; connect to and use the Schengen Information System (SIS). ↓ Applicant countries undergo a "Schengen evaluation" before joining the Schengen Area and periodically thereafter to ensure the correct application of the legislation. 13

14. The special position of Denmark : an opt-in clause (Protocol No. 22) Denmark is member of the Schengen Area under the Schengen Agreement. Denmark shall decide within a period of six months after the Council has decided on a proposal or initiative to build upon the Schengen acquis, whether it will implement this measure in its national law. If it decides to do so, this measure will create an obligation under international law between Denmark and the other Member States bound by the measure. If Denmark decides not to implement a measure of the Council, the Member States bound by that measure and Denmark will consider appropriate measures to be taken. At any time Denmark may, in accordance with its constitutional requirements, inform the other Member States that it no longer wishes to avail itself of all or part of this Protocol. In that event, Denmark will apply in full all relevant measures then in force taken within the framework of the EU. 14U

15. The participation of Ireland and the United Kingdom (Protocol No. 21) The United Kingdom and Ireland are not members of the Schengen Area. The Common Travel Area and a systematic border controls with other EU member States continue to operate between them. The United Kingdom or Ireland may notify the President of the Council in writing, within three months after a proposal or initiative has been presented to the Council pursuant to Title V TFEU, that it wishes to take part in the adoption and application of any such proposed measure, whereupon that State shall be entitled to do so. The unanimity of the members of the Council, with the exception of a member which has not made such a notification, shall be necessary for decisions of the Council which must be adopted unanimously. Measure adopted shall be binding upon all Member States which took part in its adoption. If after a reasonable period of time a measure cannot be adopted with the United Kingdom or Ireland taking part, the Council may adopt such measure without the participation of the United Kingdom or Ireland. 15

16. The United Kingdom or Ireland may at any time after the adoption of a measure by the Council pursuant to Title V TFEU notify its intention to the Council and to the Commission that it wishes to accept that measure. 16

17. Measures amending an existing measure The provisions of the Protocol apply for the United Kingdom and Ireland also to measures proposed or adopted pursuant to Title V TFEU amending an existing measure by which they are bound. However, in cases where the Council, acting on a proposal from the Commission, determines that the non-participation of the United Kingdom or Ireland in the amended version of an existing measure makes the application of that measure inoperable for other Member States or the Union, it may urge them to make a notification to accept the amending measure. A period of two months starts as from the date of such determination by the Council. If at the expiry of that period of two months from the Council's determination the United Kingdom or Ireland has not made a notification, the existing measure shall no longer be binding upon or applicable to it, unless the Member State concerned has made a notification before the entry into force of the amending measure. This shall take effect from the date of entry into force of the amending measure or of expiry of the period of two months, whichever is the later. 17

18. Ireland may notify the Council in writing that it no longer wishes to be covered by the terms of the Protocol No. 21. In that case, the normal treaty provisions will apply to Ireland. 18

19. Rules on the temporary re-introduction of border controls at internal borders in exceptional circumstances In an area without internal border control, it is necessary to have a common response to situations seriously affecting the public policy or internal security of that area, of parts thereof, or of one or more Member States, by allowing for the temporary reintroduction of internal border control in exceptional circumstances, but without jeopardising the principle of the free movement of persons. As free movement of persons is affected by the temporary reintroduction of internal border control, any decision to reintroduce such control should be taken in accordance with commonly agreed criteria and should be duly notified to the Commission or be recommended by a Union institution. In any case, the reintroduction of internal border control should remain an exception and should only be effected as a measure of last resort, for a strictly limited scope and period of time, based on specific objective criteria and on an assessment of its necessity which should be monitored at Union level. Where a serious threat to public policy or internal security requires immediate action, a Member State should be able to reintroduce border control at its internal borders for a period not exceeding ten days. Any prolongation of that period needs to be monitored at Union level. 19

20. The reintroduction of internal border control might exceptionally be necessary in the case of a serious threat to public policy or to internal security at the level of the area without internal border control or at national level, in particular following terrorist incidents or threats, or because of threats posed by organised crime. Migration and the crossing of external borders by a large number of third-country nationals should not, per se, be considered to be a threat to public policy or internal security. The temporary reintroduction of border control at certain internal borders under a specific Union-level procedure could also be justified in the case of exceptional circumstances and as a measure of last resort where the overall functioning of the area without internal border control is put at risk as a result of persistent serious deficiencies relating to external border control, where those circumstances would constitute a serious threat to public policy or internal security in that area or in parts thereof. 20

21. Such a specific procedure for the temporary reintroduction of border control at certain internal borders could also be triggered, under the same conditions, as a result of the serious negligence by the evaluated Member State of its obligations. In view of the politically sensitive nature of such measures which touch on national executive and enforcement powers regarding internal border control, implementing powers to adopt recommendations under that specific Union-level procedure should be conferred on the Council, acting on a proposal from the Commission. ↓ Regulation (EU) No 1051/2013 of the European Parliament and of the Council of 22 October 2013 amending Regulation (EC) No 562/2006 in order to provide for common rules on the temporary reintroduction of border control at internal borders in exceptional circumstances 21

22. 2. Policies on border checks, asylum and immigration

23. From Maastrich to Lisbon Treaty of Maastricht: EU competences in the field of immigration, asylum, visas, checks on external borders (inter-govermental cooperation - third pillar) Treaty of Amsterdam: communitarization of the competences in the field. TFEU: articles 77- 80 (Title V, Chapter 2: Policies on border checks, asylum and immigration) 23

24. 4 main fields EU general normative framework: rules concerning the legal entry and residence of citizens of third States in the territories of EU Member States, their rights and their status rules concerning the fight against the illegal immigration rules concerning the international protection rules concerning the trafficking of persons 24

25. Free entry and residence of citizens of third States Art. 79, para. 2 a-b, TFEU: The Union is competent to adopt measures in the following areas: the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification measures defining the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States 25

26. Purpose: the free movement of Union citizens could not be reached keeping internal border controls in order to distinguish between citizens of the EU and non-EU nationals Consequences: the removal of internal borders required a strengthened management of the Union’s external borders as well as common rules concerning the controls at the EU external borders 26

27. Code containing rules governing the movement of persons across borders (Schengen Borders Code) The Regulation 562/2006 lays down the entry conditions for third-country nationals for stays not exceeding three months ↓ Conditions (a) to possess a valid travel document or documents authorising them to cross the border; (b) to possess a valid visa if required pursuant to regulation 539/2001 listing the third countries whose nationals must be in possession of visas (c) to justify the purpose of the intended stay (d) to have sufficient means of subsistence, both for the duration of the intended stay and for the return to the country of origin; (e) not to be persons for whom an alert has been issued in the “Schengen Information System” for refusing entry (see case C-503/03*) or, more generally, not to be considered a threat to internal security, public health or international relations of any of the Member States. * The Court of Justice asserted the need to verify whether the presence of those persons constitute a GENUINE, PRESENT and SUFFICENTLY SERIOUS THREAT affecting one of the fundamental interests of the host country. 27

28. Individuals who do not fulfil all the entry conditions are not allowed to entry. ↓ Persons refused entry will have the right to appeal..... ↓.... BUT the lodging of such an appeal does not have a suspensive effect on the decision to refuse entry. 28

29. Right to family reunification of third-country nationals Directive 2003/86/EC determines the conditions for the exercise of the right to family reunification of third country nationals (the so-called “sponsors”) residing lawfully in the territory of the Member States. ↓ The directive applies where the sponsor: - is holding a residence permit issued by a Member State of one year or more - has reasonable prospects of obtaining the right of permanent residence Member States may require the sponsor to provide evidence that he has: - an accommodation regarded as normal for his family; - a sickness insurance for himself and the members of his family; - stable and regular resources which are sufficient to maintain himself and the members of his family, without “recourse to the social assistance system” of the Member State concerned. Member States may require that the sponsor have resided lawfully in their territory for a period of two years (o less) before applying for the family reunification. 29

30. Status of third-country nationals who are long-term residents Directive 2003/109/EC provides for a special status of third-country nationals who have legally and continuously resided in the territory of one member State for more than 5 years ↓ Conditions for acquiring long-term resident status: - providing evidence that third-country nationals have, for themselves and for their family members, stable and regular resources which are sufficient to maintain himself and his family without recourse to the social assistance system of the Member State of residence - having a sickness insurance 30

31. Long-term resident permit is valid for 5 years and renewable on expiry. Long-term residents enjoy equal treatment with nationals as regards: - access to employment and self-employed activities - education and vocational training, including study grants - recognition of professional diplomas, certificates and other qualifications - social security, social assistance and social protection - tax benefits; - free movement within the territories of the Member States. Long-term residents have the right to reside in the territory of Member States other than the one which granted him the long-term residence permit for a period exceeding three months in order to: - perform an economic activity; - undertake studies or vocational training; - for other purposes decided by each Member State. 31

32. Management of the External Borders of the Member States of the EU Frontex - European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union It was established with the Regulation (EC) 2007/2004 with the aim of coordinating and assisting Member States’ actions in the surveillance and control of the external borders of the EU. The agency became officially operational on 1 May 2005, with headquarters in Warsaw, Poland. The founding Regulation was later amended by the Regulation (EC) No 863/2007 and was last amended by the Regulation (EU) No 1168/2011. Eurosur - European Border Surveillance System It was established with the Regulation (EU) No 1052/2013 with the aim of supporting the Member States in their efforts to reduce the number of illegal immigrants entering the European Union by improving their situational awareness at their external borders and increasing the reaction capability of their information and border control authorities. 32

33. Focus THE ROLE OF FRONTEX IN MANAGING THE EU'S EXTERNAL BORDERS

34. FRONTEX is established with a view to improving the integrated management of the external borders of the Member States of the EU ↓ The responsibility for the control and surveillance of external borders lies with the Member States. Mains tasks: coordinate operational cooperation between Member States in the field of management of external borders; assist Member States on training of national border guards, including the establishment of common training standards; carry out risk analyses; follow up on the development of research relevant for the control and surveillance of external borders; assist Member States in circumstances requiring increased technical and operational assistance at external borders; provide Member States with the necessary support in organising joint return operations. 34

35. Joint operations The Agency shall evaluate, approve and coordinate proposals for joint operations and pilot projects made by Member States. The Agency may itself, and in agreement with the Member State(s) concerned, launch initiatives for joint operations and pilot projects in cooperation with Member States. It may also decide to put its technical equipment at the disposal of Member States participating in the joint operations or pilot projects. The Agency may decide to co-finance the operations and pilot projects. 35

36. Rapid Border Intervention Teams They are established for the purposes of providing rapid operational assistance for a limited period to a requesting Member State facing a situation of urgent and exceptional pressure, especially the arrival at points of the external borders of large numbers of third-country nationals trying to enter the territory of the Member State illegally. Member States shall make the border guards available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. During deployment of the teams, instructions to the teams shall be issued by the host Member State in accordance with the operational plan. The Agency, via its coordinating officer, may communicate its views on those instructions to the host Member State. If it does so, the host Member State shall take those views into consideration. Members of the teams may only perform tasks and exercise powers under instructions from and, as a general rule, in the presence of border guards of the host Member State. 36

37. European Border Guard Teams On a proposal by the Executive Director, the Management Board shall decide by an absolute majority of its members with a right to vote on the profiles and the overall number of border guards to be made available for the European Border Guard Teams. The same procedure shall apply with regard to any subsequent changes in the profiles and the overall numbers. Member States shall contribute to the European Border Guard Teams via a national pool on the basis of the various defined profiles by nominating border guards corresponding to the required profiles. The contribution by Member States as regards their border guards to specific joint operations and pilot projects for the following year shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the border guards available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. Such a request shall be made at least 45 days before the intended deployment. 37

38. Joint operations: & European Border Guard teams Responsibility of the Member State of origin of the units and personnel that contributes to these operations RABIT Operations: Responsibility of the Member State which requires the intervention Attribution of international responsibility for the violation of human rights by FRONTEX operations

39. Art. 78 TFEU “1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties. Charter of Fundamental Rights of the EU Art. 18 - Right to asylum “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community”. Art. 19 - Protection in the event of removal, expulsion or extradition “1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”. Protection of human rights of migrants

40. Regulation (EC) No 2007/2004 establishing Frontex: no mention to the protection of human rights Regulation (EU) No 1168/2011 amending previous regulation: “The Agency shall fulfil its tasks in full compliance with the relevant Union law, including the Charter of Fundamental Rights of the European Union (“the Charter of Fundamental Rights”); the relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Geneva Convention”); obligations related to access to international protection, in particular the principle of non-refoulement; and fundamental rights, and taking into account the reports of the Consultative Forum referred to in Article 26a of this Regulation” (Art. 1. par. 3) “Members of the European Border Guard Teams shall, in the performance of their tasks and in the exercise of their powers, fully respect fundamental rights, including access to asylum procedures, and human dignity. Any measures taken in the performance of their tasks and in the exercise of their powers shall be proportionate to the objectives pursued by such measures. While performing their tasks and exercising their powers, they shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”(art. 3b, para. 4). 40

41. RABIT Regulation (EC) No 863/2007: “Members of the teams shall, in the performance of their tasks and in the exercise of their powers, fully respect human dignity. Any measures taken in the performance of their tasks and in the exercise of their powers shall be proportionate to the objectives pursued by such measures. While performing their tasks and exercising their powers, members of the teams shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” (Art. 6, para. 2). 41

42. How to respect the prohibition of non-refoulement for asylum seekers? COUNCIL DIRECTIVE 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status REGULATION (EU) No 656/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union

43. Directive (EC) 2005/85 (“Procedures Directive”) “The safe third country concept” Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned: (a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (b) the principle of non-refoulement in accordance with the Geneva Convention is respected; (c) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and (d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention. “Safe countries of origin” The asylum seeker has the nationality of that country (or is a stateless person and was formerly habitually resident in that country) and has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances and in terms of his/her qualification as a refugee

44. Regulation (EU) No 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex Art. 4 - Protection of fundamental rights and the principle of non-refoulement “1. No person shall, in contravention of the principle of non-refoulement, be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement.

45. 2. When considering the possibility of disembarkation in a third country, in the context of planning a sea operation, the host Member State, in coordination with participating Member States and the Agency, shall take into account the general situation in that third country. The assessment of the general situation in a third country shall be based on information derived from a broad range of sources, which may include other Member States, Union bodies, offices and agencies, and relevant international organisations and it may take into account the existence of agreements and projects on migration and asylum carried out in accordance with Union law and through Union funds. That assessment shall be part of the operational plan, shall be provided to the participating units and shall be updated as necessary. Intercepted or rescued persons shall not be disembarked, forced to enter, conducted to or otherwise handed over to the authorities of a third country when the host Member State or the participating Member States are aware or ought to be aware that that third country engages in practices as described in paragraph 1.

46. 3. During a sea operation, before the intercepted or rescued persons are disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a third country and taking into account the assessment of the general situation in that third country in accordance with paragraph 2, the participating units shall, without prejudice to Article 3, use all means to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand or may reasonably be presumed to understand and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement. For those purposes, further details shall be provided for in the operational plan including, when necessary, the availability of shore-based medical staff, interpreters, legal advisers and other relevant experts of the host and participating Member States. Each participating unit shall include at least one person with basic first aid training. (…) 46

47. 4. Throughout a sea operation, the participating units shall address the special needs of children, including unaccompanied minors, victims of trafficking in human beings, persons in need of urgent medical assistance, disabled persons, persons in need of international protection and other persons in a particularly vulnerable situation. (…)” 47

48. EU normative framework concerning the fight against the illegal immigration Art. 79, para. 2 c, TFEU: The Union is competent to adopt measures relating to illegal immigration and unauthorised residence, including removal and the repatriation of persons residing without authorisation. 48

49. Common standards and procedures in Member States for returning illegally staying third-country nationals (Directive 115/2008/EC, the so-called “Return Directive”) : General principle: any third country national staying illegally on the territory of Member States has to be repatriated. Period for voluntary departure of between 7 and 30 days. In particular circumstances, the period for voluntary departure may be prolonged. Member States may also impose certain obligations on the third-country national for the duration of this period in order to prevent him/her from fleeing. Exceptions: the Member State may grant a shorter period of voluntary departure or no period at all, when the illegally staying third-country national risks fleeing, has submitted a fraudulent application or poses a risk to public/national security. If the obligation to return has not been complied with within the period for voluntary departure, Member States can take all necessary measures to enforce the return decision using, if necessary but as a last resort, coercive measures. 49

50. Member States may keep in detention a third-country national who is the subject of return procedures in order to prepare his return (if less coercive measures cannot be applied), when: (a) there is a risk of absconding or (b) the third-country national avoids or hampers the preparation of return. ↓ Detentions are ordered in writing by administrative or judicial authorities and must be reviewed regularly. ↓ The detention period must be as short as possible and not more than six months. Only in particular circumstances, when the removal of a third-country national might exceed the time limit set, Member States may prolong detention by a maximum of 12 months. 50

51. Court of Justice, Case C-61/11 PPU, Hassen El Dridi, alias Soufi Karim, Judgment of 28 April 2011 Articles 13(2) and (4) of Legislative Decree No 286/1998 of 25 July 1998: Italian legislation that provides for a prison sentence for illegally staying third-country nationals in the event of refusal to obey an order to leave the territory of the Republic ↓ Although in principle criminal legislation and the rules of criminal procedure are matters for which the Member States are responsible, this branch of the law may nevertheless be affected by European Union law. In particular, member States may not apply rules, even criminal law rules, which are liable to jeopardise the achievement of the objectives pursued by a directive and, therefore, deprive it of its effectiveness. A Member State’s legislation is precluded to provide for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period. ↓ According to the directive, the use of coercive measures must expressly be subjected to the principles of proportionality and effectiveness with regard to the means used and objectives pursued. 51

52. EU readmission agreements (Art. 79, para. 3, TFEU) Purpose: to establish (on the basis of reciprocity), rapid and effective procedures for the orderly return of persons staying illegally in their respective territories. ↓ These agreements are concluded with: Hong Kong, Macao, Sri Lanka, Albania, Russia, Ukraine, FYROM, Bosnia and Herzegovina, Montenegro, Serbia, Moldova, Turkey. Protocol No. 23 affirms that the EU provisions on the measures on the crossing of external borders shall be without prejudice to the competence of Member States to negotiate or conclude agreements with third countries as long as they respect Union law and other relevant international agreements. 52

53. EU normative framework concerning the international protection Art. 78, para. 1, TFEU “The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties”. ↓ This provision codifies the concept of international protection as stemming from the directives already adopted by the EU on: 1) asylum; 2) subsidiary protection; 3) temporary protection. Before the Lisbon Treaty the Union was simply competent to adopt minimum rules in this field. ↓ After the Lisbon Treaty, policy of asylum was expressly qualified as common policy. 53

54. Asylum and International protection in the EU Principle of non refoulement: Art. 19, para. 2, of the Charter of fundamental rights of the EU: “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”. Principle of solidariety: Art. 80 TFEU Fair sharing of responsibility among Member States in the reception and management of refugees, including its financial implications. 54

55. Minimum standards for the qualification as refugees or as persons who otherwise need international protection (Directive 2004/83/EC) Notions: ‘refugee’ means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group is outside the country of nationality and is unable or unwilling to avail himself/herself of the protection of that country. ‘refugee’ means also a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or unwilling to return to it. ‘person eligible for subsidiary protection’ means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his/her country of origin (or, in the case of a stateless person, to his/her country of habitual residence), would face a real risk of suffering serious harm as defined in article 15. 55

56. Individuals who can be qualified as asylum seekers or subsidiary protection seekers are not only those escaping from serious harms that may be caused by State organs but also who escapes from violence by non-State actors like political parties, organisations controlling the State or a substantial part of the territory of the State, or simply private individuals. Art. 15 A serious harm consists of: a) death penalty or execution; b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or c) serious and individual threat to life by reason of indiscriminate violence in situations of international or internal armed conflict ↓ 56

57. Court of Justice, Case C-465/07, Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie, Judgment of 17 February 2009 Interpretation of Art. 15 c: “the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances” “the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat”. 57

58. Criteria for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Regulation 343/2003/EC) The purpose is to avoid as much as possible the asylum shopping, that is to say the asylum seekers’ attitude to move within the Union in order to apply for the asylum in those countries where it’s more likely to obtain such a status. The common EU rules allow for the rapid identification of the sole country that is responsible for examining an asylum application. These rules are based on criteria such as where the asylum seeker has family members, where he/she is residing or which country issued him/her a visa or was his/her point of entry into the EU. Where the applicant for asylum is an unaccompanied minor, the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interest of the minor. In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum. 58

59. Temporary protection in the event of a mass influx of displaced persons (Directive 2001/55/EC) Beneficiaries of the termporary protection: “displaced persons”, that is to say third-country nationals or stateless persons who have had to leave their country of origin, or have been evacuated, and are unable to return in safe conditions because of the situation in that country, who may: - fall within the scope of application of art. 1A of the Geneva Convention, that is individuals who may apply for the refugee status; - persons who have fled areas of armed conflict or endemic violence; - persons at serious risk or who have been the victims of systematic or generalised violations of their human rights. When it can be granted? In cases of mass influx of displaced persons in a Member State because there might be the risk that the asylum system will be unable to work because of the huge number of people asking for the asylum status. 59

60. Temporary protection and refugees status Temporary protection does not prejudge the recognition of refugee status under the Geneva Convention. It means that a person enjoying temporary protection may apply for asylum and, if his application will be rebutted, he will not be deprived of the temporary protection. What about the lenght of temporary protection? It lasts one year. It may be extended two times, each time for six months. Who will authorize the issuing of permits for temporary protection? Not Member States autonomously, but the Council, which establishes the existence of a mass influx of displaced persons by a decision adopted by a qualified majority on a proposal of the Commission. The Commission has to examine any request by a Member State, and can submit a proposal to the Council. The Council decision shall have the effect of introducing temporary protection for the displaced persons in all the Member States. 60

61. Rights of individuals enjoying the temporary protection Member States must provide persons enjoying temporary protection with residence permits. Member States are obliged to authorise, for a period not exceeding that of temporary protection, persons enjoying it to engage in employed or self- employed activities, as well as in the educational system for minors, or in the educational opportunities and vocational training for adults (however, for reasons of labour market policies, Member States may give priority to EU citizens). Member States are bound to ensure that persons enjoying temporary protection have access to suitable accommodation, medical care, social assistence and means of subsistence if they do not have sufficient resources. 61

62. Management of Asylum and International Protection in the EU European Asylum Support Office (EASO) is an agency of the EU set up by Regulation (EU) 439/2010 of the European Parliament and of the Council. The agency: acts as a centre of expertise on asylum; contributes to the development of the Common European Asylum System by facilitating, coordinating and strengthening practical cooperation among Member States on the many aspects of asylum; helps Member States fulfill their European and international obligations to give protection to people in need; provides practical and technical support to Member States and the European Commission; provides operational support to Member States with specific needs and to Member States whose asylum and reception systems are under particular pressure; provides evidence-based input for EU policymaking and legislation in all areas having a direct or indirect impact on asylum. 62

63. Trafficking in human beings Art. 79, para. 2 d, TFEU The EU adopts measures combating trafficking in persons, in particular women and children ↓ Trafficking is different from irregular migration or the smuggling of irregular migrants. Once having crossed the border, a trafficked migrant is further exploited in coercive or inhuman conditions. People are trafficked for the purpose of sexual and labour exploitation or the removal of organs. Women and children are particularly affected. Children are also trafficked to be exploited for begging or illegal activities, such as petty theft. 63

64. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of trafficking in human beings. It also introduces common provisions, taking into account the gender perspective, to strengthen the prevention of this crime and the protection of the victims thereof. 64

65. A comprehensive approach: The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016 This Strategy identifies five priorities the EU should focus on in order to address the issue of trafficking in human beings. It also outlines a number of actions which the European Commission proposes to implement over five years in concert with other actors, including Member States, European External Action Service, EU institutions, EU agencies, international organisations, third countries, civil society and the private sector. Those priorities are as follows: Identifying, protecting and assisting victims of trafficking, Stepping up the prevention of trafficking in human beings, Increased prosecution of traffickers, Enhanced coordination and cooperation among key actors and policy coherence, Increased knowledge of and effective response to emerging concerns related to all forms of trafficking in human beings. 65

66. Judicial cooperation in civil matters

67. An increase of cross-border disputes The increasing use of the rights of free movement of persons, goods and services results inevitably in an increase in the potential number of cross-border disputes. For example: individuals may be involved in an accident while on holiday; they may order, over the Internet, goods from abroad which are never dispatched or which turn out to be faulty; a parent may have left with the children and settled in another country without the consent of the other parent. In a genuine European area of justice, individuals should not be prevented or discouraged from exercising their rights. The incompatibility and complexity of legal or administrative systems in EU countries should not be a barrier. 67

68. The business environment can also be significantly improved by this cooperation: with a better enforcement of commercial claims simplifying the enforcement of judgments in cross-border disputes (cutting red tape and costs) introducing rules to help creditors recover cross-border debt (63% of which is currently unclaimed) modernising EU insolvency proceedings to help some firms stay in business which would otherwise not survive. 68

69. Objectives of judicial cooperation Art. 81, par. 1, TFEU “The Union shall develop judicial cooperation in civil matters having cross- border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States”. 69

70. Areas of judicial cooperation Art. 81, para. 2, TFEU “For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: (a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; (b) the cross-border service of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States; (g) the development of alternative methods of dispute settlement; (h) support for the training of the judiciary and judicial staff”. 70

71. Many measures adopted in the area of judicial cooperation in civil matters are measures concerning the “EU Private international law” (or “EU conflicts of law”). It consists of legal norms that determine three types of issues: 1) which state court has jurisdiction in private matters having cross-border implications; 2) which state law is applicable in such matters and 3) under which conditions may a foreign decision be recognised and enforced in another country. ↓ Without an unified conflict provisions, the citizens would be encouraged to engage in forum shopping, i.e. choosing the courts of one Member State rather than another just because the (private international) law is more favourable there. 71

72. Measures concerning family law with cross-border implications Art. 81, para. 3, TFEU “Notwithstanding paragraph 2, measures concerning family law with cross- border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament. The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament. The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision”. 72

73. In the field of family law with cross-border implications, an enhanced cooperation in the area of the law applicable to divorce and legal separation was authorised with the Council Decision 2010/405 of 12 July 2010. 73

74. Judicial cooperation in criminal matters

75. Areas of judicial cooperation Art. 82, par. 1, TFEU The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to: recognition throughout the Union of all forms of judgments and judicial decisions; prevent and settle conflicts of jurisdiction between Member States; support the training of the judiciary and judicial staff; facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions. 75

76. Minimum rules on judicial cooperation Art. 82, par. 2, TFEU To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross- border dimension. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States. They shall concern: (a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision (for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament). Adoption of the minimum rules shall not prevent Member States from maintaining or introducing a higher level of protection for individuals. 76

77. Minimum rules on Euro Crimes Art. 83, para. 1, TFEU “The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament”. 77

78. Approximation of criminal laws and regulations (Art. 83, par. 2, TFEU) The approximation of criminal laws and regulations of the Member States may be realized in an area which has been subject to harmonisation measures, if it is essential to ensure the effective implementation of a Union policy. It consists of directives establishing minimum rules with regard to the definition of criminal offences and sanctions. 78

79. Where a member of the Council considers that a draft directive affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within 4 months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure. Within the same timeframe, in case of disagreement, and if at least 9 Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. 79

80. Eurojust Each Member State must appoint a national member to Eurojust headquarters: a prosecutor, judge or police officer (the latter must have competencies equivalent to the judge’s or the prosecutor’s). These national members are to be assisted by deputies and assistants. They are all subject to the national law of the Member State that appointed them. The length of the term of office of national members is a minimum of four years. The appointing Member State may renew the term. The appointing Member State decides on the nature of the judicial powers conferred on its national representative. However, national members are to be granted at least certain ordinary powers (they are entitled to receive, transmit, facilitate, follow up and provide supplementary information in relation to the execution of requests for, and decisions on, judicial cooperation, including regarding instruments giving effect to the principle of mutual recognition; in case of partial or inadequate execution of a request for judicial cooperation, national members shall be entitled to ask the competent national authority of their Member State for supplementary measures in order for the request to be fully executed), as well as other powers to be exercised in agreement with the competent national authority or in urgent cases, as defined in the decision. 80

81. Regarding investigations and prosecutions (concerning at least two Member States) in relation to serious crime, Eurojust has competence for: - promoting coordination between the competent authorities of the various Member States; - facilitating the execution of requests and decisions relating to judicial cooperation. 81

82. Eurojust may ask the authorities of the Member States concerned, inter alia, to: - undertake an investigation or prosecution; - set up a joint investigation team; - take special or other investigative measures. ↓ The national authorities are to respond to these requests without delay. Eurojust may fulfil its tasks through one or more of the national members or as a College. The College issues non-binding opinions in cases where two or more national members are unable to resolve conflicts of jurisdiction as well as where competent authorities report recurrent refusals for, or other difficulties relating to, judicial cooperation. 82

83. The Commission, which is fully associated with the work of Eurojust, will jointly agree upon the necessary practical arrangements with Eurojust. An On-Call Coordination (OCC) is established with one representative from each Member State and with a contact point at Eurojust. It is to act on a 24-hour/7-day basis, so that Eurojust may fulfil its tasks at all times. Eurojust national coordination system: Each Member State shall appoint one or more national correspondents for Eurojust. Each Member State shall also set up a Eurojust national coordination system to coordinate the work of the national correspondents for Eurojust, the national correspondent for Eurojust for terrorism matters, the national correspondent for Eurojust for European Judicial Network and the national members or contact points of the Network for Joint Investigation Teams, the Europan Network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes, and representatives of the Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to, crime and of the contact-point network against corruption. 83

84. Relations with other bodies In order to carry out its tasks, Eurojust maintains privileged relations with the European Judicial Network, the European Police Office (Europol), the European Anti-Fraud Office (OLAF), the European External Borders Agency (Frontex) and the Joint Situation Centre of the Council. After approval by the Council, Eurojust will also be able to conclude cooperation agreements on the exchange of information with non-Member States, international organisations or bodies and the International Criminal Police Organisation (Interpol). Furthermore, Eurojust may coordinate judicial cooperation with non-Member States as well as to post liaison magistrates to these States for the purpose of facilitating this cooperation. 84

85. Joint investigation teams In order to carry out criminal investigations in Member States which necessitate coordinated and concerted action, at least two Member States may set up a joint investigation team. To that end, the competent authorities of the relevant Member States enter into an agreement determining the procedures to be followed by the team. The joint team must be set up for: - a specific purpose; and - a limited period (which may be renewed with the agreement of all the parties involved). 85

86. Members of the joint investigation team from Member States other than the Member State in which the team operates are referred to as being "seconded" to the team. They may carry out tasks in accordance with the law of the Member State where the team is operating. With respect to offences committed by them or against them, officials from a Member State other than the Member State of operation are to be regarded as officials of the Member State of operation. 86

87. European Public Prosecutor's Office (EPPO) Art. 81, para. 1, TFEU “In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament”. In the absence of unanimity in the Council, a group of at least 9 Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in the case of a consensus, the European Council shall, within 4 months of this suspension, refer the draft back to the Council for adoption. Within the same timeframe, in case of disagreement, and if at least 9 Member States wish to establish enhanced cooperation on the basis of the draft regulation concerned, they shall notify the European Parliament, the Council and the Commission accordingly. 87

88. The European Council may adopt a decision amending Art. 86, paras. 1 e 2, TFEU in order to extend the powers of the EPPO to include serious crime having a cross-border dimension. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission. 88

89. Proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office (COM/2013/0534 final - 2013/0255 (APP)) EPPO will be an independent Union body with the authority to investigate and prosecute EU-fraud and other crimes affecting the Union's financial interests. (Currently, only national authorities can investigate and prosecute EU-fraud. Their competences stop at their national borders. Existing Union-bodies (such as European Anti-fraud Office (OLAF), Eurojust and Europol) do not have and cannot be given the mandate to conduct criminal investigations). 89

90. The EPPO will be a body of the Union with a decentralised structure. The EPPO will be headed by a European Public Prosecutor. Its investigations will in principle be carried out by European Delegated Prosecutors located in each Member State. The number of these Delegated Prosecutors will be decided by Member States, but they should have at least one. The European Delegated Prosecutors will be an integral part of the EPPO but also continue to exercise their functions as national prosecutors. When acting for the EPPO, they will be fully independent from the national prosecution bodies. 90

91. Art. 86, para 2, TFEU requires that the EPPO exercises its functions of prosecutor in the competent courts of the Member States. The acts of investigation of the EPPO are also closely related to an eventual prosecution and will mainly deploy their effects in the legal orders of the Member States. The regulation will determine the general rules applicable to the EPPO, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions. The EPPO will mainly rely on national rules of investigation and procedure, which will apply if the regulation does not provide for more specific provisions. 91

92. Police cooperation

93. Art. 87, par. 1, TFEU “The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences”. 93

94. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning: (a) the collection, storage, processing, analysis and exchange of relevant information; (b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection; (c) common investigative techniques in relation to the detection of serious forms of organised crime. 94

95. Operational cooperation The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation. The Council shall act unanimously after consulting the European Parliament. In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption. Within the same timeframe, in the case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft measures concerned, they shall notify the European Parliament, the Council and the Commission accordingly. Note: These specific procedures shall not apply to acts which constitute a development of the Schengen acquis. 95

96. EUROPOL Unlike the police services of Member States, Europol does not have executive powers. It cannot detain individuals, nor can it conduct home searches. Its tasks are to facilitate the exchanges of information, analyse intelligence and coordinate operations involving several Member States. 96

97. As part of police cooperation between Member States, Europol: facilitates the exchange of information between Member States; collates and analyses information and intelligence; notifies the competent authorities of Member States without delay via the national units of information concerning them and of any connections identified between criminal offences; aids investigations in Member States; maintains a computerised system of collected information; helps Member States train their competent authorities; facilitates technical assistance between Member States; serves as the contact point for combating euro counterfeiting. 97

98. Europol’s sphere of competence includes the following offences: - preventing and combating terrorism; - drug trafficking; - trafficking in human beings; - illegal immigrant smuggling; - trafficking in nuclear and radioactive substances; - motor vehicle crime; - counterfeiting and forgery of means of payment; - money laundering (except for predicate offences). ↓ Europol takes action when one or two Member States are affected by these serious transnational crimes. 98

99. Each Member State establishes or designates a Europol national unit (ENU). This unit is the only liaison body between Europol and the competent national authorities. Each Member State sends at least one liaison officer to Europol whose task is to represent the unit’s interests within Europol. The heads of the national units meet on a regular basis. The national unit’s duties include: - supplying Europol with the information and intelligence it needs to carry out its tasks, and in particular providing input for Europol’s database; - replying to and issuing requests for information to Europol; - disseminating the information provided by Europol to the competent authorities. ENUs are Europol’s point of entry into Member States. However, a direct contact between a Member State’s competent authorities and Europol is possible on the condition that the ENU is informed at the same time. 99