Category: Uncategorized

In 2018, EU Commission president Jean-Claude Juncker stated that the EU “had been sleepwalking from one crisis to another without waking up.” These crises have no doubt had a range of detrimental effects on the EU, and I argue that crises make it harder for the Commission to enforce EU law. Why? Crises require resources, including time. Time is a fixed and finite resource, and if the Commission is spending time on a crisis, there is less time for enforcement. However, crises do not inevitably lead to lax enforcement. Other actors, including the European Parliament and EU citizens can help overcome the constraints of time.

Continue reading “Do crises affect enforcement of EU Law?”

This month, we have the pleasure of re-posting a contribution by Clémence van Muylder, Senior Associate at Loyens&Loeff, Brussels. Have a pleasant read!

In its Grand Chamber judgment of 21 December 2023, the Court of Justice of the European Union rendered its very first decision on the functioning of the European Public Prosecutor’s Office (EPPO). The decision provides valuable guidance on the conditions for cross-border acquisition of evidence by the EPPO.

Continue reading “[REPOST] EPPO – First ruling of the ECJ: a Solomon’s judgement on cross-border investigations”

Begin april verscheen de tweede druk van het boek “De Algemene verordening gegevensbescherming in Europees en Nederlands perspectief”. Het is een bijgewerkte versie van de eerste druk die verscheen rond de tijd dat de Algemene verordening gegevensbescherming (de “AVG”, ook wel bekend onder de Engelse afkorting: “GDPR”) van toepassing werd.

Continue reading “Tweede druk van het boek “De Algemene verordening gegevensbescherming in Europees en Nederlands perspectief””

By Elaine, Gersi, Joris and Leonoor

The Asylum Crisis 

Granted with a new mandate following the adoption of Regulation (EU) 2021/2303 on 19 January 2022, the European Union Agency for Asylum (EUAA) has transitioned into a full-fledged agency. Its goal is to improve the functioning of the Common European Asylum System (CEAS). As the successor of the European Asylum Support Office (EASO), the EUAA is tasked with upholding and promoting respect for fundamental rights within the European Union’s (EU) asylum system. 

Fundamental rights are particularly relevant in the CEAS. This is especially so, given that migrants and asylum seekers often find themselves in a vulnerable position. This can be due to for example their lack of resources, and poor living and material conditions. Following the mass influx of refugees on the EU’s shores leading to the asylum crisis of 2015, a reform of the CEAS was needed to create ‘a more humane, fair, and efficient European asylum policy’. In light of this, the EUAA has implemented a more robust fundamental rights strategy. This strategy contains several safeguards.  

One of these safeguards is the new Fundamental Rights Officer (FRO). The FRO portraits the enforcement of, and adherence to fundamental rights within the EUAA. In this blog post it will be argued that, as follows from the 2022 Ombudsman initiative, the FRO adds value to the workings of the EUAA. This is because the FRO aids the Agency in several ways within the field of fundamental rights. 

François Deleu: the man for the job 

Following the new fundamental rights strategy, Article 49 Regulation 2021/2303 requires the Management Board of the Agency to install a FRO. The FRO is appointed to design a new Fundamental Right Strategy, manage a new complaints mechanism, and contribute to the Agency’s Monitoring Mechanism. Appointed in May 2023, François Deleu is the first to take on this task.  

“I will develop and uphold a robust Fundament Rights Strategy that will build on what is already in place, ensuring that the respect for fundamental rights is central to all the Agency’s growing activities” ~ François Deleu 

While the FRO works independently, Deleu collaborates with the Agency’s Consultative Forum of Civil Society Organisation to create the new Fundamental Right Strategy. The Consultative Forum has an advisory function: it is established to exchange information with relevant civil society organisations and bodies operating in the field of asylum. This includes the European Union Agency for Fundamental Rights and the European Border and Coast Guard Agency (Article 50 Regulation 2021/2303). Together, the FRO and Consultative Forum aim to ensure that the Fundamental Right Strategy is properly reflected in the Agency’s workings. They also work towards preventing breaches of the Charter of Fundamental Rights of the European Union (Charter). 

The FRO is designed as a response to the 2019 Ombudsman decision on maladministration in the practice of the EASO. The FRO therefore manages a complaints mechanism created for individuals who may have suffered a violation of their fundamental rights by an expert employed by the EUAA. The FRO moreover contributes to the Agency’s Monitoring Mechanism of Member States’ asylum systems. The FRO does so by ensuring that this mechanism takes fundamental rights concerns into account.  

Organisational structure of the EUAA 

A Slow Start… 

Following the 2021 revamping of the EUAA framework, the European Ombudsman opened a new strategic initiative. In this initiative, the Ombudsman posed 16 questions to the Agency. This included questions on how the EUAA complies with its fundamental rights obligations and how it ensures accountability for potential violations. These questions related to the renewed protection offered by the 2021 Regulation. It therefore raised attention to the FRO. What followed was a back-and-forth correspondence between the Agency and the Ombudsman.  

It should be mentioned here that the Ombudsman does not issue legally binding decisions. However, its reports are valuable in assessing the Agency’s compliance with its fundamental rights obligations. This follows from its mandate of investigating ‘instances of maladministration in the activities of the Union institutions, bodies, offices or agencies’ (Article 228(1) TFEU).  

At the time of the investigation, Deleu had not yet been appointed. One of the questions therefore rested on when the Agency anticipated this position to become operational. In the Agency’s initial reply of 11 July 2022, it walked through the appointment procedure for the FRO. The reply highlighted that certain steps like kick-starting the selection process were taking longer than expected. This could be owed to the “extensive consultations” held with all involved stakeholders. These consultations were needed to ensure that the necessary attention to detail was afforded in the selection of candidates. 

The Ombudsman later expressed disappointment in February of 2023 that the position remained vacant more than a year after the 2021 Regulation came into force. It urged the Agency to fill this position as “a matter of urgency”, because of the need to operationalise the Agency’s other fundamental rights mechanisms. In this way, the FRO can be seen as the catalyst for all EUAA fundamental rights mechanisms.  

 …But a Promising Future 

As mentioned, the FRO position was eventually filled in 2023. At the time of writing, Deleu now holds office for nearly a year. So, what can be said for this new development?

At the end of June 2023, the Agency replied to the Ombudsman observations. In the reply, the Ombudsman was informed of this long anticipated appointment. Also, it was stated that the fundamental rights strategy was expected to be adopted in March/April 2024. At the time of writing, it can therefore be expected any day. 

Additionally, the response addressed recommendations for the FRO to review all operational plans signed between the Agency and EU Member States. It highlighted that Deleu had already reviewed plans with Spain, Bulgaria and Lithuania since entering office. Here, the value of the FRO can be seen through its direct involvement in scrutinising Member State plans. 

In July of 2023, the EUAA also published its Annual Report about asylum in the EU. In the Annual Report, it discusses its newly developed escalation process. This process is outlined under Article 18(6)(c) of the 2021 Regulation. It stipulates that the Agency’s Executive Director can suspend or terminate asylum support teams in a Member State that is violating fundamental rights or international protection obligations. This is done after consultation with the FRO. 

An overview of the EUAA's timeline (made by the authors of this post)  

A Well-Rounded Appointment 

As a final note, the recruitment process’ emphasis on maintaining the FRO’s independence towards the Executive Director should be highlighted. This is important due to the weight placed on independence in the FRO’s mandate. The selection committee for the post therefore included external stakeholders, like the European Commission Directorate-General for Migration and Home affairs. So, while the position is appointed internally, individuals from outside the Agency have a say in deciding the next FRO. Based on the selection procedure, a list of candidates is sent to the Management Board, which ultimately takes the final decision. Ultimately, it is therefore an internal decision with external input.  

The importance attributed to the FRO in the Ombudsman initiative has now been shown. The office’s essential role in upholding the new framework’s mechanisms is also evident. Hence, the FRO can be seen to hold great added-value for the Agency, with further-untapped potential. 

 

By Ariana, Beatrice and Elsa

Due to increasing global mobility and security challenges, Europe has reinforced its border management strategies. The European Border and Coast Guard Agency, commonly known as Frontex, is essential to this policy. Frontex is in charge of assisting the Member States in managing the European Union’s external borders. On this subject, a new system will be implemented: the European Travel Information System (ETIAS). This new system contributes to fortifying the external European borders, and Frontex has a significant role in its implementation.

Photo: European Travel to Become Payable: EU Introduces ETIAS. Source: Collage The Gaze

The European Travel Information and Authorization System (ETIAS): a brief explanation 

What is ETIAS?  

ETIAS was introduced by Regulation 2018/1240. This new European travel authorization system will be implemented in 2025. It will be completed via an online application that will cost €7 for people aged 18 to 70.  

This travel authorization will impose on travelers the obligation to provide personal data, including the level of education, occupation, the address of the first intended stay, and prior convictions for criminal or terrorist offenses. This data will assess the risk of the threats above and create an ETIAS watchlist concerning people at risk of committing or having committed a terrorist offense.

This new electronic authorization system is intended to apply to visa-exempt visitors from third countries traveling to a Member State of the European Union or the Schengen area (except Ireland) for less than 90 days.  

European Travel Information and Authorisation System (ETIAS): In a nutshell

What is the goal of implementing ETIAS?

The European Commission aims to strengthen controls at the external borders to preserve freedom of movement within the internal market and, more generally, the Schengen area.  

The establishment of ETIAS answers several objectives. This system has been designed to reinforce security at the borders, especially against terrorism and irregular immigration. By conducting security risk assessments of visitors before their arrival at the border, the goal is to prevent potential threats, even potential epidemic threats, from entering the Schengen area.

Moreover, this system aims to support the objectives of the Schengen Information System (SIS), the platform Schengen area members utilize to exchange real-time data on individuals and objects of interest. ETIAS will contribute to preventing, detecting, and investigating terrorist offenses and serious criminal activities.

Finally, the other purpose of ETIAS is to streamline border management to facilitate legitimate travel.   

How will ETIAS work?

ETIAS is an automated IT system that performs tasks or processes automatically without continuous human intervention. ETIAS will use artificial intelligence (AI) to analyze applications from third-country nationals wishing to stay in the Schengen area for less than 90 days. Nationals from the 60 countries covered by ETIAS will have their applications automatically analyzed by various European databases, such as Frontex or Europol, to ensure they do not constitute a threat. Applicants will mostly receive an answer in less than an hour, but it could take up to a month. Frontex has stated that, on average, 97% of applications would receive rapid authorization. Regarding the remaining 3%, these applications will be reviewed manually by the ETIAS Central Unit. Frontex is responsible for setting up and operating this Central Unit.

ETIAS, THE ELECTRONIC TRAVEL AUTHORISATION FOR EUROPE

 The Role of Frontex…

Frontex, created in 2004, is one of the most critical European agencies. Its relevance has grown over the years and, with a budget of over 845 million euros in 2023, plays a crucial role in enforcing EU borders policy. This European agency provides support to Member States in their efforts to control and secure the external borders of the Schengen. Therefore, it is logical that Frontex plays a pivotal role in enforcing ETIAS.  

…in enforcing ETIAS

According to Article 7 of the ETIAS Regulation, Frontex is responsible for setting up and operating the ETIAS Central Unit. This Unit is within Frontex’s organization and manages ETIAS.

Frontex

First, concerning online application provided by the travelers. During the processing of the data sent by the applicant, if there is a hit, the ETIAS Central Unit will have the responsibility to cross-check the information of the person in question against the information contained in the Central System. Information encloses in the Central System include other EU information systems, Europol, and Interpol data. This will allow the Central Unit to determine whether the applicant is welcome in the Schengen area.

Frontex is further tasked with performing audits of the processing of applications to safeguard fundamental rights in this process. In doing this, Frontex agents will have to examine how the continental Unit manages online applications’ fundamental rights, such as the right to privacy and non-discrimination. The ETIAS central unit must respect these rights throughout the data analysis process but also subsequently regarding their storage.

Frontex officials are responsible for ensuring the data entered in application files is up to date. The Central Unit is tasked with publishing an annual activity report containing statistical data on ETIAS’s functioning and general information on its activities, activities, and concerns. The report is made to the European Parliament, the Council, and the Commission.

One of the most critical tasks of Frontex is that it is charged with defining, revising, and deleting, as well as assessing risk indicators to ensure the security of Europe’s borders, according to Article 33 of the ETIAS Regulation. These risk indicators are listed in Recital 27 of the ETIAS regulation and relate to threats regarding security, irregular immigration, or high epidemic risks. The risk indicators are based on the factors provided by the ETIAS online application, which include nationality, residence, education, and employment status. Those criteria have been chosen to avoid discrimination. Applications will be automatically checked against this list of risk indicators. If a hit is triggered, the Central Unit cross-checks this(/these) hit(s) against other databases and, depending on the result, either issues a travel authorization or refers the case to a competent Member State authority, who will manually process the information and either grant or refuse the travel authorization. This meticulous process ensures that ETIAS balances security concerns with respect for individual rights and non-discrimination principles.