Statewatch News Online, 30 March 2011 (09/11)

30 March 2011

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1.    EU: Council of the European Union: FRONTEX: Proposal for a Regulation
2.    EU: Council of the European Union: Handbook on EU-U.S. Mutual Legal Assistance and Extradition Agreements (MLATs)
3.    EU: Council of the European Union: Includes FRONTEX information exchanges with EU agencies and Member States
4.    EU-UK: HoL Select Committee on EU: The United Kingdom opt-in to the Passenger Name Record directive
5.    UK: Sixth police spy in protest movement unmasked
6.    UK: Parliamentary Joint Human Rights Committee: Facilitating peaceful protests
7.    EU Classified Information (EUCI): Agreement extending its Classified information rules to Member States
8.    ECHR: European Court of Human Rights: Carlo Giuliani judgment
9.    EU: European Data Protection Supervisor (EDPS)
10.  USA: US court validates spying fears of journalists, activists
11.  EU: UK-OPT-IN TO TRAFFICKING DIRECTIVE
12.  Netherlands-USA: SWIFT data and MLA treaty
13.  ECJ: Highlights of the Access Info Europe judgment
14.  ECJ: Major victory for openness
15.  EU: ROAD SAFETY: European Commission
16.  EU-COE: ECHR-ACCESSION
17.  COE: Draft Outline Structure of the Recommendation concerning Foreign Prisoners
18.  EU: SECURITY RESEARCH: Lobbyists delight
19   EU: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments

1.  EU: Council of the European Union: FRONTEX: Proposal for a Regulation amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) (89 pages, EU doc no: 7169/11: Very useful summary of the positions of the Council, Commission and European Parliament on the amendments to the Frontex Regulation:
www.statewatch.org/news/2011/mar/eu-council-summary-of-positions-on-frontex-regulation-7961-11.pdf

2. EU: Council of the European Union: Handbook on the practical application of the EU-U.S. Mutual Legal Assistance and Extradition Agreements (MLATs):
www.statewatch.org/news/2011/mar/eu-council-eu-usa-mla-handbook-8024-11.pdf

This spells out the formal legal position. The Agreements complement existing bilateral Member State-USA MLAs:

“Effect of EU – U.S. Agreements on Existing Extradition Treaties and MLATs

The EU-U.S. Agreements selectively amend and supplement existing bilateral extradition treaties and MLATs between the United States and Member States. The United States has extradition treaties with all EU Member States, and MLATs with 20 of the 27. The MLA Agreement serves to create for the first time a treaty-based, albeit partial, mutual legal assistance relationship between the Unites States and the other seven Member States (Bulgaria, Denmark, Finland, Malta, Portugal, Slovakia, and Slovenia).” (emphasis added)

Background
– Full text of the Mutual Legal Assistance and Extradition Agreements (agreed June 2003)
www.statewatch.org/news/2003/jun/useu09153.pdf

– Council Press release, October 2009:
www.statewatch.org/news/2011/mar/eu-council-eu-usa-prel-oct-2009.pdf

3. EU: Council of the European Union: Includes FRONTEX information exchanges with EU agencies and Member States: Final report and recommendations of Project Group “Measure 6″: www.statewatch.org/news/2011/mar/eu-council-29-meaures-frontex-info-exchange-7942-11.pdf

“In the context of the 29 measures for reinforcing the protection of external borders and combating illegal immigration (6975/10), the Project Group on Measure 6 has produced its final report. The objective of this Project Group “Measure 6″ is: “To improve the collection, processing and systematic exchange of relevant information between FRONTEX, other EU Agencies and Member States”.

4. EU-UK: House of Lords Select Committee on the EU: The United Kingdom opt-in to the Passenger Name Record directive: The Committee supports a UK opt-in. But it is concerned, as is the government, that the draft Directive allows the use of data collected but is unclear on the collection of passenger data – which the UK already does on intra-EU flights: www.statewatch.org/news/2011/mar/uk-hol-select-cttee-report-opt-in-eu-pnr.pdf

5. UK: Sixth police spy in protest movement unmasked (Guardian, link):
www.guardian.co.uk/environment/2011/mar/26/sixth-police-spy-unmasked/print

6.  UK: Parliamentary Joint Human Rights Committee: Facilitating peaceful protests:
www.statewatch.org/news/2011/mar/uk-jhrc-report-facilitating-peaceful-protests.pdf

“We were surprised to find that there appears to be no specific guidance setting out the circumstances in which the use of the baton against the head might be justifiable… we remain concerned about kettling and the use of batons: clearer operational guidance is needed on both of these if the police are to meet their commitment to human rights successfully.?

7.  EU STATE-BUILDING: EU Classified Information (EUCI): The Council is about to adopt an Agreement extending its Classified information rules to Member States (EU governments) as well: Agreement between the Member States of the European Union, meeting within the Council, regarding the protection of classified information exchanged in the interests of the European Union:
www.statewatch.org/news/2011/mar/eu-euci-13886-09.pdf

The Agreement primarily concerns the exchange of Top Secret, Secret and Confidential information. But also cover the classification: “Restricted” which is defined as:

“This marking is applied to information and material the unauthorised disclosure of which could be disadvantageous to the interests of the European Union or of one or more of the Member States.” (emphasis added).

There is always the temptation open to officials to push a “LIMITE” document, which is not a classified document, up to the “RESTRICTED” level to deny access as this could be “disadvantageous” and lead to a public debate.

Background: The Council’s EUCI: Council Decision on the security rules for protecting EU classified information:
www.statewatch.org/news/2011/mar/eu-euci-13885-rev1-09.pdf

8. ECHR: European Court of Human Rights: Carlo Giuliani judgment (64 pages):
www.statewatch.org/news/2011/mar/echr-carlo-giuliani-judgment-mar-11.pdf

Seven judges dissented from the majority verdict. See: Court rules in Italy’s favour over demonstrator’s killing. The court:

9. EU: European Data Protection Supervisor (EDPS): Press release:
www.statewatch.org/news/2011/mar/eu-edpa-dp-and-transparency-prel.pdf

Background Paper:
www.statewatch.org/news/2011/mar/eu-edpa-dp-and-transparency-background-paper.pdf

“Peter Hustinx, EDPS, says: “Reconciling data protection, privacy and public access to documents is a challenge at EU as well as Member State level. Whilst the fundamental right to data protection must be respected by the institutions, care should be taken that data protection is not used as a pretext for not being transparent. This is detrimental to good governance and not in the interest of data protection either. The EU administration should therefore give the right example. Our analysis has shown that a proactive approach serves all interests best.”

10. USA: US court validates spying fears of journalists, activists (The Globe and Mail, link):
www.theglobeandmail.com/news/national/us-court-validates-spying-fears-of-journalists-activists/article1952268/

Under the US Foreign Intelligence Surveillance Act (FISA) which allows the unlimited, uncontrolled, surveillance of the communications of individuals outside the USA both within and outside the country they live in.

– Court judgment: www.statewatch.org/news/2011/mar/usa-surveillance-court-judgment.pdf
– Naomi Klein submission to the court: www.statewatch.org/news/2011/mar/usa-surveillance-naomi-klein-submission-to-court.pdf

Tony Bunyan, Statewatch Director, comments: “FISA presents the threat of surveillance to journalists, lawyers and activists in the EU and elsewhere”

11. EU: UK-OPT-IN TO TRAFFICKING DIRECTIVE: Government seeks to join Europe-wide accord to tackle human trafficking (Press release, link):
www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2011/march/61-government-seeks-to-join

Council of the European Union: Press release (21 March):
www.statewatch.org/news/2011/mar/eu-council-trafficking-directive-prel.pdf

See also: Statewatch Analysis: The new Directive on trafficking in persons (pdf) by Steve Peers, Professor of Law, University of Essex:
www.statewatch.org/analyses/no-113-trafficking.pdf

12. Netherlands-USA: SWIFT data and MLA treaty:
www.statewatch.org/news/2011/mar/07netherlands-usa-swift-mla.htm

13.  ECJ: Highlights of the Access Info Europe judgment (see story below):

The Council claimed that Statewatch’s publication of the document EU doc no: 16338/08:
www.statewatch.org/news/2011/mar/eu-council-acess-regulation-ms-16338-08.pdf had:
– seriously undermined the Council’s decision-making procedures
– had led the Council to change it procedures so as not to record the Member State positions and
– disclosure lead to a “hostile media reception” or “sharp criticism on the part of the public”

The Court found that none of these allegations were substantiated – and observed on the third allegation that: “it is in the nature of democratic debate that a proposal for amendment of a draft regulation, of general scope, binding in all of its elements and directly applicable in all the Member States, can be subject to both positive and negative comments on the part of the public and media.”

Tony Bunyan, Statewatch Director, comments:

“The case for the repeal of Article 4.3 of the Regulation on access to EU documents which allows the Council to routinely refuse access to documents “under discussion” on the grounds that to do so would “seriously undermine” the decision-making procedure could not be put better:

The Commission’s recent proposal to amend the Regulation to reflect the changes in the Lisbon Treaty provides an excellent opportunity for the European Parliament to effect this judgment by getting rid of Article 4.3 and open up the Council’s legislative role to public scrutiny and accountability”

See: The case for the repeal of Article 4.3:
www.statewatch.org/news/2011/mar/05eu-access-regulation-com-amend-mar-11.htm

For background documentation on the discussions to amend the Regulation see: Observatory: the Regulation on access to EU documents: 2008 – 2011:
www.statewatch.org/foi/observatory-access-reg-2008-2009.htm

14.  EUROPEAN COURT OF JUSTICE: Major victory for openness: The General Court of the ECJ has found in favour of the NGO Access Info Europe for access to a Council document containing the position of Member States concerning amendments to the EU Regulation on public access to documents: Full-text of ECJ judgment:
www.statewatch.org/news/2011/mar/eu-ecj-access-inf-judgment-mar-11.pdf

15.  EU: ROAD SAFETY: European Commission: Response to Council of the European Union 1st reading position:
www.statewatch.org/news/2011/mar/eu-council-road-safety-lst-reading-position-17506-rev1-10.pdf

See also: Council’s 1st reading position:
www.statewatch.org/news/2011/mar/eu-council-road-safety-lst-reading-position-17506-rev1-10.pdf

Council statement of reason:
www.statewatch.org/news/2011/mar/eu-council-road-safety-lst-reading-position-17506-rev1-add1-10.pdf

and European Parliament: Draft 1st reading position:
www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2008-0616

Note: The European Parliament’s 1st reading position does not deal with data protection: Vehicle registration data will be gathered by “automated searches” (an online access procedure for consulting the databases of one, several, or all of the Member States or of the participating countries) using the Prum VRD (Vehicle Registration Data). Data protection will be in compliance with the procedures in the Prum Decision and Chapter 3 of the Annex to Decision 2008/616/JHA – a much criticised measure: See: Statewatch Observatory on data protection in the EU: the protection of personal data in police and judicial matters:
www.statewatch.org/eu-dp.htm

16.  EU-COE: ECHR-ACCESSION: 6th Working Meeting of the CDDH Informal Working Group on the accession of the EU to the ECHR:
www.statewatch.org/news/2011/mar/eu-coe-echr-accession-18-mar-11.pdf

17. COE: Draft Outline Structure of the Recommendation concerning Foreign Prisoners:
www.statewatch.org/news/2011/mar/coe-draft-treatment-of-foreign-prisoners-rev-2.pdf

18. EU: SECURITY RESEARCH: Lobbyists delight: draft European Parliament report calls for full-blown EU military research budget (Neoconopticon, link)
neoconopticon.wordpress.com/2011/03/21/lobbyists-delight-draft-european-parliament-report-calls-for-full-blown-eu-military-research-budget/

19 EU: Proposed Commission changes to Regulation on access to documents fail to meet Lisbon Treaty commitments
www.statewatch.org/news/2011/mar/05eu-access-regulation-com-amend-mar-11.htm

– The public and civil society have a right to know what is being discussed during the EU legislative process

– Abolish the “space to think”: Article 4.3 is used to deny access to documents concerning measures “under discussion” because it could “seriously undermine the decision-making process”. On the contrary Article 4.3 “seriously undermines” democracy because the public and civil society have no right to know what is being discussed until after a measure is adopted (and sometimes not even then)

– the Commission used Article 4.3 to refuse access to documents in over 25% of initial applications and for the Council the figure was 39.2% (plus an undefined proportion of the 28.2% refused for multiple reasons) [2009 Annual Reports]

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