1. FIRST INTERIM REPORT - LEGAL 1 The Development of CISE of the Surveillance of the EU Maritime Domain and their related impact assessment Interim Report – Legal WSP 1.1 and WSP 1.2 MSESG 4 JULY 2013 Legal experts: Sandra Synková, PhD. Rasmus Shermer

2. Interim Report - Legal MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 2 ›updated version submitted 24 May 2013 on WSP 1.1 (Mapping use groups based on legal limitations, need to know and responsibility to share) and WSP 1.2 (Defining general and specific legal limitations and EU right to act) ›two major areas covered: 1.the extent to which the current EU horizontal and sectoral legislation prescribes or allows for the exchange of maritime surveillance information across the 7 CISE user communities and across borders; 2.options to implement CISE against the background of EU right to act.

3. MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 3 Analysis of horizontal legislation ›Data Protection rules ›conditions to the sharing of maritime surveillance data across user communities, which stem primarily from the purpose limitation principle ›"personal data" have a broad definition, but the scope should not be overstretched ›the purpose is to strike the appropriate balance between the protection of the data subject's rights and legitimate interests of the data controllers, third parties and the public interest ›broad exceptions to the application of the Data Protection Directive on EU level Art. 3 (public security, defence, State security), Article 13 on MS level ›additional measures to compensate for the change of purpose – some possibilities for the data subjects to provide specific consent ›last resort - legislate amendments to sectoral legislation (overall or several separate purposes)

4. MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 4 Analysis of horizontal legislation (cont.) ›two aspects: ›whether data can lawfully be shared with others; ›combination of data from different providers in one service provided to the recipient – combination of data, like any other processing of personal data, requires an appropriate legal ground and should not be incompatible with the purposes for which the data was collected. ›Confidentiality of commercial data ›stems either from legal rules or contractual provisions ›fragmented approach, no horizontal legislation ›the receiving authority shall apply the same level of confidentiality as the provider of the data and may not, therefore, normally disclose it to third parties not specifically mentioned within the relevant legal framework

5. Analysis of sectoral legislation MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 5 ›4 elements: ›collected data; ›responsibility to share and access rights; ›limitations to the sharing of information – stemming from horizontal principles and from sectoral legislation; ›suggestions to enhance the possibilities to exchange maritime surveillance information.

6. Analysis of sectoral legislation (cont.) MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 6 ›the areas in which amendments may be proposed fall broadly into the following categories (or a combination thereof): 1.the sharing of information is voluntary; ›Art. 12 of the CF Regulation, Art. 13(4) of the Community Customs code 2.responsibility to share/access rights are provided for competent authorities only; 3.responsibility to share/access rights are provided for recipients in specified MS only; ›e.g. flag state, coastal state next port call, along the planned route, concerned

7. Analysis of sectoral legislation (cont.) MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 7 4.the information is provided for specified purposes only ›e.g. compliance with the common fisheries policy, maritime safety or security or the protection of the marine environment, implementing inspection procedures, etc. or under specified circumstances; ›e.g. in the event of an emergency 5.specific information/function is excluded; ›e.g. Community customs code, defence 6.in a broader sense – system of ex-post reporting, missing framework ›e.g. annual, bi-annual reporting ›not a limitation: information provided to all other MS or made available to public

8. Removing sectoral limitations to information sharing MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 8 ›different types of limitations – targeted by different means ›legislative/non-legislative, binding/non-binding, combination – WSP 1.3 ›inextricably linked to policy options for implementing CISE ›most common legal limitation – limited access rights  the information may be shared on a voluntary basis unless horizontal principles prohibit such sharing, but it might be necessary to encourage sharing ›some specific limitations stem from overarching horizontal principles ›not all limitations are equally significant ›TAG Data Matrix, CooP work to identify the intensity and importance of the limitations with respect to each use case, questionnaires & interviews

9. Simplified preliminary assessment of information flows (presented also at WP4) MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 9 ›based on the analysis of the relevant sectoral legislation ›limitations may also stem from horizontal principles ›outline of information flows where access rights are provided to: ›competent authorities ›specified purposes ›entire MS (=all authorities) ›public ›italic font – possibility to share ('may be shared')

10. MSESG 4 JULY 2013 10 Fisheries Control - VMS, AIS, VDS - Fishing activities, catches & prior notifications - surveillance and inspection data (including joint control and inspection) General law enforcement Customs Marine Environment Safety and Security Defence Border control VMS, AIS, VDS Simplified preliminary assessment of information flows FIRST INTERIM REPORT - LEGAL

11. MSESG 4 JULY 2013 11 Maritime Safety and Security dangerous and polluting goods; notifications of waste residues; discharging of polluting substances and infringements; information regarding ship-generated waste; oil spill information information regarding measures to ensure that VTM sanctions are applied; information on recognised organisations; Port state control inspection; deficiencies and other safety related information; data collected by flag state; information on certificates and endorsements for seafarers VRD; reporting incidents and accidents at sea; passenger data; database on marine casualties; information on the need for an urgent action to prevent casualties security information prior to entry into a port; information on ships that failed to comply with security requirements General law enforcement Customs Marine Environment Fisheries Control Defence Border control FIRST INTERIM REPORT - LEGAL Simplified preliminary assessment of information flows

12. MSESG 4 JULY 2013 12 Maritime Safety and Security (cont.) General law enforcement Customs Marine Environment Fisheries Control Defence Border control VTM sanctions, recognised organisations, deficiencies and other safety related information, marine casualties database VTM sanctions, recognised organisations, deficiencies and other safety related information, marine casualties database VTM sanctions, recognised orga- nisations, deficiencies and other safety related infor- mation, marine casualties database VTM sanctions, recognised organisations, deficiencies and other safety related information, marine casualties database VTM sanctions, recognised orga- nisations, deficiencies and other safety related information, marine casualties database dangerous and polluting goods, notifications of waste residues, oil spill information, recognised organisations, deficiencies and other safety related information, VTM sanctions, flag state data, incidents & accidents at sea, marine casualties database FIRST INTERIM REPORT - LEGAL Simplified preliminary assessment of information flows

13. MSESG 4 JULY 2013 13 Customs - Customs declarations and accompanying documents - Customs control information General law enforcement Fisheries Control Marine Environment Safety and Security Defence Border control all of the collected data all of the collected data all of the collected data all of the collected data all of the collected data all of the collected data FIRST INTERIM REPORT - LEGAL Simplified preliminary assessment of information flows

14. MSESG 4 JULY 2013 14 Marine Environment - environmental information (public access) - river basin plans and programmes - information on management of waters - inventory of substances and pollutants General law enforcement Customs Fisheries Control Safety and Security Defence Border control all of the collected data all of the collected data all of the collected data all of the collected data all of the collected data all of the collected data FIRST INTERIM REPORT - LEGAL Simplified preliminary assessment of information flows

15. MSESG 4 JULY 2013 15 Border Control - Information on border checks on persons - Data collected by FRONTEX on external borders and migration situation (migration routes, trends, number of immigrants) - EUROSUR operational information (situational pictures) General law enforcement Customs Marine Environment Safety and Security Defence Fisheries control FIRST INTERIM REPORT - LEGAL Simplified preliminary assessment of information flows FRONTEX and EUROSUR data -working arrangements (›EUROPOL) FRONTEX and EUROSUR data – working arrangements (›EMSA) FRONTEX and EUROSUR data -working arrange- ments (›EFCA)

16. MSESG 4 JULY 2013 16 General law enforcement - Information on persons that are under suspicion for or have committed crimes - Data related to criminal offences committed or investigated Fisheries Control Customs Marine Environment Safety and Security Defence Border control all of the collected data all of the collected data all of the collected data all of the collected data all of the collected data all of the collected data FIRST INTERIM REPORT - LEGAL Simplified preliminary assessment of information flows

17. MSESG 4 JULY 2013 17 Defence - Information collected by EDA (development of policies and strategies, research) and the European External Relation Service (EEAS) Fisheries Control Customs Marine Environment Safety and Security General law enforcement Border control all of the collected data all of the collected data all of the collected data all of the collected data all of the collected data all of the collected data FIRST INTERIM REPORT - LEGAL Simplified preliminary assessment of information flows

18. EU Right to act MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 18 ›with respect to each policy option an assessment of: ›subsidiarity – necessity and added value test ›proportionality of the legal measure ›conferral – appropriate legal basis or bases ›challenges in establishing legal basis (bases) for the CISE measure(s) ›maritime policy does not fall under a single sector-based policy ›legal bases for the current legislative acts and measures are founded in several provisions of both TEU and TFEU (pp. 76-77) ›a horizontal measure - aim and content of CISE: CISE seeks to integrate maritime surveillance to generate situational awareness of activities at sea, impacting on the 7 user communities, as well as the economic interests of the EU, so as to facilitate sound decision making (COM (2010) 584)

19. EU Right to act (cont.) MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 19 ›strict conditions for founding a measure on multiple legal bases – objectives and components have to be inseparably linked, without one being incidental to the other ›examples where multiple legal bases were employed - most recently the Proposal for a Directive establishing a framework for maritime spatial planning (COM(2013) 133 final) – common agricultural policy, transport and environmental policy and energy ›common security and defence policy (TEU) ›specific rules and procedures, no legislative acts ›military authorities with civilian functions ›some external dimensions of security (fight against organised crime and terrorism) covered by EU policies within the area of freedom security and justice

20. Measures to implement CISE – embracing all user communities under one instrument MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 20 ›compatible legal bases (TEU and TFEU) – ECOWAS case (Case C-91/05) ›compatible legislative procedures (ordinary legislative procedure vs. consultation procedure for cooperation in border control) ›compatible instruments (amending legislation) ›preferable for the amending act to be of the same type as the amended act ›it is not recommended to amend a regulation by means of a directive (Joint Practical Guide of the European Parliament, the Council and the Commission 2003 (JPG), Guideline 18.7) ›examples of amending Directives by means of Regulations (Directive 80/217 introducing Community measures for the control of classical swine fever)

21. Measures to implement CISE (cont.) MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 21 ›Amending legislation (P.O.3+) ›an amending act must not contain new substantive provisions which are autonomous in relation to the act being amended (JPG Guideline 18.4) ›omnibus act amending sectoral legislation: ›example: European system of Financial Supervisors (ESFS) – framework of 3 Regulations (establishing EU agencies) and 2 Omnibus Directives amending multiple sectoral Directives and based on the same legal basis as the Directives

22. Opt-outs and opt-ins MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 22 ›require differentiated approach to rights and responsibilities, but do not constitute a barrier to the successful development of CISE as such 1.Title V TFEU (are of freedom security and justice: border control, asylum and immigration; judicial cooperation in civil matters, judicial cooperation in criminal matters and police cooperation) ›Denmark, UK and Ireland ›UK and Ireland possibility to opt-in in individual measures (opted-in in most policing and criminal law measures), Denmark – possibility to opt-in to Title V after a referendum ›Denmark acceded to the Schengen acquis, UK and Ireland participate only partially (criminal law, policing irregular migration) 2.Common Foreign and Security Policy ›Denmark

23. Measures to Implement CISE (summary) MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 23 user community marine pollution maritime safety and security customsfisheries control general law enforcem ent border control defence legal basis TFEUTEU legislative procedure ordinaryordinary and specialunaninimity opt-outs no opt-outsopt-outs from TEU and TFEU conducive environment highmediumlow current legislative framework mixed instrument s primarily directives, but several regulations primarily regulationscouncil decisions* primarily regulation s no legislation (Council decisions)

24. MSESG 4 JULY 2013 FIRST INTERIM REPORT - LEGAL 24 Questions and comments