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| 18.5.2010 | EN | Official Journal of the European Union | C 128/80 |
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18.5.2010

EN

Official Journal of the European Union

C 128/80

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Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to the European Parliament and the Council — An area of freedom, security and justice serving the citizen’

COM(2009) 262 final

(2010/C 128/14)

Rapporteur: Mr PARIZA CASTAÑOS

Mr PARIZA CASTAÑOS

Co-rapporteur: Mr PÎRVULESCU

Mr PÎRVULESCU

On 10 June 2009, the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the

Communication from the Commission to the European Parliament and the Council – An area of freedom, security and justice serving the citizen

Communication from the Commission to the European Parliament and the Council – An area of freedom, security and justice serving the citizen

COM(2009) 262 final.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 15 October 2009.

At its 457th plenary session, held on 4 and 5 November 2009 (meeting of 4 November), the European Economic and Social Committee adopted the following opinion by 152 votes for with one abstention.

1.   Background

1.1.   In recent years, defending and promoting human rights has slipped down the EU agenda. State security has been the political priority, and has been seen as being incompatible with more freedom and the protection of fundamental rights.

1.2.   Security and justice policies must safeguard the values of freedom. The EESC considers that these policies should take the protection of the fundamental rights guaranteed by the European Convention on Human Rights and the Charter of Fundamental Rights as their starting point.

1.3.   Security policies must not jeopardise the fundamental values (human rights and public freedoms) or democratic principles (the rule of law) that are shared throughout the Union. Personal freedom must not be curtailed under cover of the objective of collective and state security. Some policy proposals repeat the mistake of earlier times: sacrificing freedom to improve security.

1.4.   The protection of fundamental rights and freedoms must be strengthened by means of a visible and robust political authority at European level. The EESC therefore supports President Barroso's proposal to create a post for a European Commissioner responsible for Justice, Fundamental Rights and Civil Liberties. The Committee trusts that this department will be equipped with the political tools and organisational and financial resources needed to discharge such a major responsibility.

1.5.   The Committee regrets, however, that immigration and asylum are included with internal security matters under the responsibility of another Commissioner. Linking immigration with security, and separating it from the protection of rights, sends the wrong political message. The EESC proposes that in the new European Commission, immigration and asylum policies be closely associated with the protection of fundamental rights as part of the same political approach.

1.6.   When the Treaty of Lisbon comes into force, policies for the area of freedom, security and justice will rest on a broader legal foundation: the EESC therefore believes that the European Union can achieve aims more ambitious than those proposed by the Commission.

1.7.   The EESC recommends reassessing legislation pertaining to freedom of travel, for which reason Regulation EC/2252/2004 must be amended.

2.   Area of freedom, security and justice

2.1.   The EU's area of freedom, security and justice (AFSJ) is moving into a critical phase. Since 1999, the Council has adopted two five-year programmes: the Tampere programme (1999-2004) and the Hague programme (2004-2009).

2.2.   Ten years on from Tampere, the original objectives have yet to be achieved. The EU is still not an area of freedom, security and justice. Progress over the years has been insufficient (1) and uneven. The Stockholm European Council offers a new opportunity to revive the spirit of Tampere.

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2.3.   Considerable progress has been made on common policy in the realm of immigration, asylum and borders; the exceptions are legal and labour immigration, which remain subject to the unanimity rule in the Council.

2.4.   Policies linked to police and judicial cooperation on criminal matters have been governed by an intergovernmental approach, in a climate of marked distrust and in accordance with the unanimity rule, which has made the adoption of common legislation at European level extremely complicated.

2.5.   The Stockholm programme will probably be implemented once the Treaty of Lisbon enters into force. Many of its policies will then be adopted in the Council under the ordinary procedure or under the Parliament’s legislative co-decision procedure, enabling the EU to set more ambitious goals, although the present treaty also allows for the development of the area of freedom, security and justice that Europe needs.

2.6.   The process leading to the adoption of the Stockholm programme has already been enriched by a number of contributions, including the European Pact on Immigration and Asylum (2), the reports of the advisory group on the future of European policy in the realm of home affairs and justice (3) and contributions received by the European Commission as part of the public consultation on Freedom, Security and Justice: What will be the future? Consultation on priorities for the next five years, in September and November 2008 (4).

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Freedom, Security and Justice: What will be the future? Consultation on priorities for the next five years

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2.7.   In June 2009, the Commission published a communication entitled An area of freedom, security and justice serving the citizen: Wider freedom in a safer environment
   (5); this forms the basis for the present opinion which sets out the EESC's point of view and recommendations on the Stockholm process.

An area of freedom

security and justice serving the citizen: Wider freedom in a safer environment

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2.8.   The Committee is also in the process of preparing an own-initiative opinion (6) proposing that EU policy and legislation on immigration and borders give due respect to human rights and place the freedom and security of all centre stage. This opinion also forms part of the EESC's contribution to the preparations for the Stockholm programme.

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3.   General comments

3.1.   The Committee endorses and supports the principle whereby the Stockholm agenda's political priority is based on the establishment of a European area for freedom, security and justice, serving the public. One of the most important challenges of the coming five years, especially following approval of the Lisbon Treaty, will be that of building a citizen's Europe, which is why the EU's political priorities need to focus on this goal. Three years ago, the Committee adopted an own-initiative opinion with a view to making European citizenship more visible and effective (7). There is a need to improve the quality of European citizenship in order to make it more open, fair and conducive to integration, and to avoid all forms of discrimination.

building a citizen's Europe

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3.2.   The EESC also welcomes the priority given in the communication to building a Europe of rights, as the protection of rights and fundamental freedoms enshrined in the Charter of Fundamental rights is an essential EU value (8).

Europe of rights

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3.3.   Although the European system for protecting fundamental rights is well advanced, these rights are not fully upheld throughout the EU, particularly when it comes to implementing and applying Community law at national, regional and local level. The Stockholm programme should include a clear, ambitious and comprehensive strategy on the protection and safeguarding of fundamental rights in the AFSJ, and secure a ‘Europe of rights’ that is firmly-rooted and universal at all levels of governance.

clear, ambitious and comprehensive strategy on the protection and safeguarding of fundamental rights in the AFSJ

3.4.   In recent years, the EU has given security priority over human rights, justice and freedom. The Committee believes that to establish a genuine area of freedom, security and justice there must be a fair balance between these three aspects. Any policies adopted in the area of security must protect the values of freedom and the rule of law. These policies must be rooted in the protection of the fundamental rights as guaranteed by the European Convention on Human Rights and the EU's Charter of Fundamental Rights.

3.5.   Human rights, being universal and indivisible, must be protected and secured for all people, not just for EU citizens. A ‘Europe of rights and justice’ cannot be restricted to people who have the nationality of a Member State, but must cover everyone living on Union territory. Otherwise the personal scope of the AFSJ would be incompatible with the values and principles, non-discrimination, equal treatment and solidarity on which the European Union was founded. The Stockholm programme will need to give consideration to the fact that many of the rights and freedoms laid down in the international and European conventions and treaties apply to everyone irrespective of nationality, citizenship or migratory status.

3.6.   The programme should draw on the 1999 Tampere programme, under which the Council adopted fair treatment and non-discrimination between EU citizens and third country nationals as a guiding principle. This principle could be strengthened by the new treaty, which makes the Charter of Fundamental Rights of the EU legally binding and will open the door for the EU to subscribe to the European Convention on Human Rights.

3.7.   The EESC believes that after 2011, the role of the EU's Fundamental Rights Agency should be bolstered by increasing its budget, granting it new powers in the area of evaluation and improving cooperation with other European agencies and bodies, such as the European Data Protection Supervisor (EDPS) and the European Ombudsman. Meanwhile, the agency's independence from governments should be enhanced and the EESC should be brought in as the representative of civil society.

3.8.   The EESC supports the five-pronged method proposed by the Commission to secure the success of the Stockholm programme: (1) fitting justice internal affairs policies and smoothly together with other EU policies; (2) narrowing the gap between the rules approved at European level and their implementation at national level, and developing practical measures; (3) improving the quality of European legislation and its impact; (4) improving the use made of the evaluation of the mechanisms created and the agencies set up (5) ensuring that the priorities are accompanied by adequate financial resources.

method

3.9.   As an institution, the EESC is set to continue cooperating very actively in evaluating the quality and added value of European policies, their impact on fundamental rights and the principle of proportionality, together with their ethical, social and economic effects.

3.10.   The Committee could thus remain part of a European
  strategy for better legislation and for evaluating the quality and sound administration of the European legal system and the application and effects of laws adopted in relation to it.

European

strategy for better legislation and for evaluating

3.11.   Through the Stockholm Programme, the EU must step up and clarify its commitments as regards the objectives and targets to be met. The EESC recommends identifying a set of key indicators and an initial list of targets which, throughout the programme and at its completion, should make it possible to carry out an objective evaluation of the progress made.

3.12.   The EESC hails the action lines adopted but believes that the programme's priorities should be identified more clearly, backed up by financial commitments.

3.13.   The EESC acknowledges the valuable contribution made by the Council of Europe in its many resolutions and recommendations on the efficiency and sound application of justice and calls on the Commission to include these in future developments in the field of civil and criminal justice in the European Union (9).

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4.   Specific comments

4.1.   Promoting human rights: a Europe based on rights and the rule of law

4.1.1.   The Universal Declaration of Human Rights, adopted in 1948 by the UN General Assembly, proclaims the universal nature of a common system of principles and values; the European Convention on Human Rights, signed in Rome in 1950 and to which all the Member States have adhered, and the European Court of Human Rights, are the basis and guarantee of compliance with these principles and rights everywhere on EU territory.

4.1.2.   The Charter of Fundamental Rights of the EU incorporates new rights not included in the European Convention on Human Rights. The Charter will increase legal certainty in the protection of fundamental rights, and will be applicable to the European institutions and the Member States, especially when they apply Community law.

4.1.3.   The right to the free movement of people is one of the basic rights of European citizenship. The removal of internal border controls and freedom of movement and residence in the Schengen area are among the major achievements of the last 10 years of European integration.

right to the free movement of people

4.1.4.   The EESC wishes to express its concern, however, regarding the fact that exercise of this right is hindered in practice by the various obstacles and barriers that exist in much of the EU. The Committee considers that Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States has not been properly transposed. Its transposition has been found unsatisfactory by the Commission (10), the European Parliament and numerous expert reports, not to mention the fact that it was not implemented within the deadlines set (11).

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4.1.5.   The EESC welcomes the Commission communication on guidelines for improving the transposition and application of this directive. Any derogations or exceptions applicable by national authorities to the fundamental right of the free movement of people must be interpreted in a restrictive way and in full compliance with the case-law of the Court of Justice of the European Communities (12). The protection of cross-border workers’ labour and social rights must be enhanced, as proposed by the Committee in a number of opinions (13).

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4.1.6.   When it comes to better protection of the rights of the child, the EESC has adopted various opinions (14) in which it has recommended that the EU uphold international treaties and implement a strategy to ensure that Member States move quickly to honour the commitments they have made regarding these rights at European and international level, particularly regarding the United Nations Convention on the Rights of the Child.

the rights of the child

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4.1.7.   The EESC wishes to stress the importance of respecting diversity and protecting the vulnerable. Various minorities (the Roma people, for instance) and many people of immigrant origin are affected by the challenges that arise from diversity.

diversity and protecting the vulnerable

4.1.8.   The Committee has recently adopted various opinions aimed at strengthening anti-discrimination legislation (15), proposing ways to improve the tools used in the fight against discrimination, racism, violence, homophobia and xenophobia. Civil society can play an essential role in ensuring that Community legislation is applied properly in practice.

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4.1.9.   When the Charter of Fundamental Rights comes into force, it will provide the European Union with new legal foundations for protecting labour and social rights. In the future, the Committee will take further initiatives so that European policies are implemented that strengthen the protection of these rights, and proposes that the European Commission include social and labour rights among its priorities.

protecting labour and social rights

4.1.10.   The EU is currently finalising security and border control policies based on the use of new technologies and information systems. Consideration must be given to the ethical and legal consequences of these policies in terms of personal data protection and privacy.

security and border control policies

personal data protection and privacy

4.1.11.   The EESC believes that organised civil society could take part in evaluations to ensure that the principles of purpose, proportionality, legitimacy, security and confidentiality are respected, in close collaboration with the national- and European-level authorities responsible for data protection and mediation.

principles of purpose, proportionality, legitimacy

security and confidentiality

4.1.12.   Many consultations of European civil society have found that freedom of movement is tempered by disproportionate security measures, such as the use of biometrics and RFID technology in travel documents. In an opinion (16), the Committee stated that RFID technology is not yet ‘mature’, and could infringe people's fundamental liberties.

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4.1.13.   Provision must be made in the Stockholm programme for the fact that the rapid development of these technologies may make it necessary to adopt new political and legislative initiatives to protect fundamental rights, particularly when it comes to personal data protection. The Commission must launch information and awareness campaigns on the rights and risks inherent in using information technologies.

information and awareness campaigns

4.1.14.   The poor turnout at the recent European Parliament elections highlighted the dissatisfaction felt by many Europeans with the quality of their citizenship or with certain EU policies. The Committee endorses the Commission's aim to improve the democratic life and active participation of the European public. In response to the growing lack of interest of the citizens of Member States in European policy, the EESC recommends launching a set of measures to stimulate active European citizenship. The Committee is in favour of holding the European Parliament elections during the week of 9 May and giving election candidatures, campaigns and manifestos a less national and more European flavour.

active participation of the European public

more European

4.1.15.   The EESC believes that there is a need to expand the foundation of our democracies, not least by including new citizens and giving them equality in terms of both rights and obligations. National and European citizenship rights should cover the full range of national, ethnic, religious and cultural origins that arise in part from immigration.

4.1.16.   The EESC drafted an own-initiative opinion (17) for the Convention, in favour of third-country nationals with long-term residence status being given European citizenship. The Committee proposes that the EU institutions give consideration to this proposal in the Stockholm programme.

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third-country nationals with long-term residence status being given European citizenship

4.2.   Making life easier: a Europe of law and justice - Ensuring rule of law and justice in a Europe that is open to the world

4.2.1.   Mutual recognition of court decisions

4.2.1.1.   The EESC welcomes efforts towards mutual recognition, which is the cornerstone of integration in the European judicial area. The latter must co-exist with the judicial traditions of each Member State and guarantee the strengthened development of an area of freedom and responsibility. The Union must establish a core of common standards. On the other hand, the entire system of coercion, with respect to common core standards as well as national legislation, must be subject to legal restrictions in order to avoid all risk of abuse: rules must not in any way compromise freedoms and human rights and should guarantee protection for civil and social rights.

4.2.1.2.   Mutual recognition could be extended to areas that are not yet covered, e.g. succession and wills, matrimonial/civil partnership property regimes and the property consequences of the separation of couples, as well as all areas that affect the everyday life of EU citizens. Mutual recognition should cover all forms of civil partnership legally recognised by Member States.

4.2.1.3.   In civil matters, the exequatur procedure under which Member States enforce judgments in civil and commercial matters issued in other Member States should be abolished and mutual recognition extended to areas not yet covered. In criminal matters, the principle of mutual recognition must always apply at all stages of the procedure. Mutual recognition should also be extended to victim and witness protection schemes and to disqualification decisions.

civil matters

criminal matters

4.2.2.   Strengthening mutual trust

4.2.2.1.   In order to strengthen mutual trust between judicial systems, training for the legal professions must be stepped up and supported through common instruments. Exchange between officials working in the justice system should be encouraged and supported, not only through the Justice Forum and the activities of professional networks but also by setting up an ‘Erasmus’ style system. With a view to improving communication and the exchange of good practices, the EESC recommends strengthening the European Justice Forum.

4.2.2.2.   We should continue to strengthen mutual trust by providing stronger support, especially financial, for training legal professionals and developing professional networks. These actions should be accompanied by exchanges of good practices and the development of innovative projects to modernise justice.

4.2.3.   Providing easier access to justice: a priority

4.2.3.1.   EU action in criminal matters to improve mutual recognition of judgments should not focus exclusively on terrorism, organised crime and attacks on the Union's financial interests. It should also cover breaches of human rights and fundamental freedoms. The growing mobility of Member State citizens within the EU makes them more vulnerable to discrimination and abuse in their private and working lives.

4.2.3.2.   The EU should strive to strengthen existing legal aid measures, utilise electronic tools (e-Justice) (18) in cases where this is necessary, and make a special effort to give citizens access to legal translation and interpretation. It should also take steps to simplify the formalities for the legalisation of documents. It will be necessary to improve support for victims, especially in the case of cross-border transactions.

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4.2.4.   The role of the legal professions in supporting economic activity

4.2.4.1.   The enforcement of judgments must be improved, mainly by setting up a European procedure for the attachment of bank accounts. The work done on creating a common reference framework for contract law could be used in future legislative proposals, standard contracts could be drawn up and optional European systems could be introduced in clearly defined areas of the internal market (the ‘28th regime’). Further efforts are needed to harmonise rules on the law applicable to insurance contracts and company law.

4.2.4.2.   The European judicial area, particularly in a period of crisis, should not only serve to support economic activity in the single market, but also encourage economic agents to shoulder their responsibilities towards society and their own employees. In a financial and economic crisis, it is important to strengthen solidarity between States, economic agents and citizens, and to respect the dignity and rights of citizens.

4.2.5.   Increasing the EU's international presence in the legal field

Priority must be given to promoting the rule of law throughout the world, especially in neighbouring countries and countries that share a common economic, social and security programme with the EU, and to significantly strengthening the instruments for judicial assistance and cooperation that the EU uses in its relations with third countries.

4.3.   A Europe that protects: a regulatory framework and principles for an open Union that that protects its citizens.

The EESC welcomes the development of an internal security strategy for the Union. A broad range of public and private stakeholders must be involved in this process (19). Civil society participation will guarantee the prevalence of an approach based on tolerance, dialogue and cooperation, and not on exclusion, fear and distrust of citizens of other Member States or third country nationals. It will also ensure the protection of the fundamental freedoms and rights, which are the most vulnerable to control and enforcement measures; in the absence of democratic civil society, such measures can be used in a discriminatory or abusive way. The internal security strategy must be supported by a European strategy to assess the functioning of European legal systems.

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4.3.1.   Upgrading the tools for the job

4.3.1.1.   Police cooperation must incorporate a substantial internal training and instruction component. The FRA has said that the harsh and aggressive behaviour of police forces is a major source of discrimination. In order to limit such practices, steps must be taken to combat this behaviour and win back public confidence in the integrity of the police (20).

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4.3.1.2.   The technological tools required to guarantee internal security cannot be mobilised without ensuring their transparent and responsible use in cooperation with citizens and civil society.

4.3.2.   Effective policies

4.3.2.1.   Priorities in cross-border crime must also strengthen the rights of the defence by extending common minimum guarantees to the protection of the presumption of innocence and to pre-trial detention (duration and revision of the grounds for detention). Measures to combat crime must comply with the principle of proportionality. These initiatives must be developed and supported through the appropriate means, namely under an action plan, and followed up, especially in situations that have so far emerged as being problematic (treatment of people suspected of terrorist activities).

4.3.2.1.1.    With regard to maritime control and surveillance and specifically the protection of people and vulnerable groups, the Member States’ fundamental obligation of rescue at sea has to take priority over the imperatives of maritime control and surveillance.

4.3.2.1.2.   The common European Schengen visa, possibly issued by a common consular authority, could ensure a level playing field for all asylum applicants. There should, however, also be a gradual move from the presumption of risk arising from the applicant’s nationality to an assessment of individual risk. This would be a positive step forward, which will prevent abusive and discriminatory practices vis-à-vis applicants.

4.3.3.   Common objectives

4.3.3.1.   The internal security strategy should focus on threats that have not received sufficient attention. Measures to tackle hate crime, racism, xenophobia and anti-Semitism must be given clear priority. The instruments used should not be devised solely for the purposes of security but should also cover the economic, social, cultural, and educational spheres, and used preventively.

The internal security strategy should prioritise transparency and the fight against corruption, which undermines the citizens’ confidence in public institutions and the democratic process at national and EU levels.

4.3.3.2.   In order to reduce the terrorist threat, the EU must step up its efforts to promote European models of intercultural and interfaith dialogue that can counter the isolation and radicalisation of communities, groups and organisations in the EU and beyond its borders. However effective they may be, internal security measures only treat the effects and not the causes of terrorism. It is therefore vital to launch a pan-European dialogue to identify these models so that the Union can then actively promote them in cooperation with the Member States.

4.4.   A dynamic immigration policy

4.4.1.   Implementing an immigration policy will be a key priority over the coming years, on the basis of the objectives set out in the European Pact on Immigration and Asylum. The priorities defined by the Commission include consolidating a global approach to immigration.

4.4.2.   The EU must improve dialogue and cooperation with countries of origin. The EESC has proposed (21) that, within the field of external policy, the EU promote an international legal framework for migration on the basis of the Universal Declaration of Human Rights, the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. This international legal framework should include the main ILO conventions and the UN International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, which has not yet been ratified by the EU Member States, despite the fact that the EESC adopted an own-initiative opinion (22) proposing that this be done.

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4.4.3.   In order for European immigration policy to contribute to development in countries of origin, EU agreements with these countries should be concluded under conditions of mutual interest and in compliance with migrants’ rights. The EESC believes that mobility agreements should prevent the brain drain and compensate for it. In order for circular migration to interact positively with development, entry and long-term residency laws should be made more flexible in order to facilitate voluntary return without loss of the right of immigrants to remain in the country.

4.4.4.   Cooperation with third countries should not be based exclusively on managing illegal migration, return and border controls, despite their importance. Agreements with third countries should take account of the interests of all parties: the immigrants, so their fundamental rights and fair treatment are guaranteed; the countries of origin, so that migration benefits their labour and social development; and the European host communities.

4.4.5.   The EESC believes that one of the weaknesses in the comprehensive approach to immigration stems directly from the EU's difficulties in progressing from general policy discussions to the adoption of concrete legislative initiatives that are based on the Community method and that comply with the division of competences as set out in the treaties.

4.4.6.   The Committee does not share the view that European immigration policy should be based on circular migration. Needless to say, some migration decisions are temporary and sometimes circular but experience has shown that a large part of them are permanent or long term. European policies and legislation should consequently always promote human rights, a secure legal status for immigrants, integration and family unification.

4.4.7.   In a recent opinion (23), the EESC took the view that ‘immigration policy and legislation should fully respect the human rights of all people, equal treatment and non-discrimination’.

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4.4.8.   The EESC is against the use of the term ‘illegal migration’ and shares the views of other European bodies, including the Parliamentary Assembly of the Council of Europe and the European Parliament, which prefer the terms ‘irregular migration’ and ‘undocumented migrants’ in order to avoid any false associations between immigration and crime.

irregular migration

4.4.9.   Although it is not lawful to enter a State without documentation and the necessary authorisations, a person who does so is not a criminal. The link between illegal migration and crime so often made by the media and in political debates does not reflect reality and foments fear and xenophobia in the host country.

4.4.10.   The EESC endorses the Commission's priority to monitor the national application of the rights and guarantees set out in the Return Directive (Directive 2008/115/EC), which will come into force in December 2010.

Return Directive (Directive 2008/115/EC)

4.4.11.   The Committee also endorses the Commission's proposal to establish ‘common standards for taking charge of illegal immigrants who cannot be deported’ as well as the proposal concerning regularisations that ‘guidelines for their implementation could be formulated’. Regularising the situation of those concerned involves taking into account their social and labour market integration, in line with the European Pact on Immigration and Asylum.

common standards for taking charge of illegal immigrants who cannot be deported

guidelines for their implementation could be formulated

4.4.12.   There should be a specific European policy to protect unaccompanied minors who find themselves in irregular situations.

unaccompanied minors

4.4.13.   The EESC agrees with the Commission that the EU should put in place a common framework in the form of a flexible admission system for immigrants, geared to the needs of national labour markets. However, it feels that European legislation must avoid policies based solely on the needs of labour markets in a particular situation or period which treat the immigrant as a unit of labour rather than a person who has rights and needs protection and security.

4.4.14.   The EESC supports the Commission's proposal to set up a European platform for dialogue to manage immigration of labour better, involving employers, unions, Member State public employment services, recruitment agencies and other stakeholders. The EESC could be the European institution which hosts the platform’s activities, similar to arrangements for the European Integration Forum.

platform for dialogue

European Integration Forum

4.4.15.   The EESC has stressed repeatedly that joint European legislation on admission should have comprised an overall, horizontal legislative framework rather than sectoral legislation (24).

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4.4.16.   However, the Commission is currently drawing up various proposals for sectoral directives. The European Council recently adopted the Blue Card Directive
   (25), which provides for a fast-track, flexible admission system which only applies to migrant workers considered to be ‘highly-skilled’ and members of their families, which could lead to discrimination between those deemed to be ‘highly-skilled’ and others (who will be covered by specific directives). Moreover, the directive gives Member States too much leeway to define and specify the conditions for being granted the blue card and the rights it confers.

Blue Card Directive

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4.4.17.   The EESC believes that the sectoral approach taken by European immigration legislation must go hand in hand with a horizontal common framework of rights (European status) which ensures respect and protection for immigrants’ rights and freedoms in Europe, irrespective of the kind of job they do or their legal status or administrative situation.

common framework of rights (European status)

4.4.18.   The Commission has drafted a proposal for a framework directive on immigrants’ rights which is still to be adopted by the Council. The EESC has adopted an opinion (26) on the proposal which it hopes will be taken into consideration during the Council’s work.

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4.4.19.   The EESC will discuss the Commission's proposal of adopting an immigration code to ensure a uniform, comparable set of rights for immigrants in Europe, but regrets that the proposal will entail the withdrawal of the framework directive; it therefore urges future Council presidencies to keep working until this directive is adopted.

immigration code

As regards family reunification, the EESC agrees with the Commission that ‘a revision of the Directive might be proposed after wide consultations’.

family reunification

4.4.20.   The EESC hopes that the Commission will soon issue a Green Paper with the aim of launching a debate on the changes to be made to the directive, as the minimalist nature of Directive 2003/86 makes it possible for certain national laws not to fully guarantee this right to third-country nationals, as was confirmed by the Commission's report on its transposal into national law (27).

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4.4.21.   The EESC is working hard to promote integration and has adopted various own-initiative opinions calling for proactive integration policies to be implemented in the EU with a two-way focus, targeting both the host societies and immigrants. This is a positive approach to integration, unlike the negative approach of some governments, who see integration as another barrier to equality and another means of discrimination.

integration

4.4.22.   As the Commission says, greater efforts are needed from the EU, the Member States and regional and local authorities, but also a greater commitment by the host community and immigrants themselves. A European Integration Forum was recently set up, the result of cooperation between the Commission and the EESC. This is a platform involving civil society and immigrants’ organisations in European policy promoting integration.

European Integration Forum

4.4.23.   The EESC supported the proposal to establish an open method of coordination for integration and is committed to drafting more opinions to contribute to its implementation. The Commission envisages a ‘joint coordination mechanism that would support the efforts of Member States using a common reference framework’, including definition of best practices, development of indicators, links with other policies and involvement of civil society through the European Integration Forum portal.

joint coordination mechanism that would support the efforts of Member States using a common reference framework

4.4.24.   The Forum can also contribute to evaluating practices, developing indicators and linking integration with other EU policies.

4.5.   Asylum: a common area of protection and solidarity

4.5.1.   Europe must be ready to give asylum seekers a decent reception, with legislation to protect them and a policy displaying more solidarity. Many people requiring international protection arrive at the external borders by clandestine means. The authorities must ensure that such persons can submit their requests for protection, and that their requests are examined in accordance with international and European conventions and with Community and national legislation.

4.5.2.   In recent years, the EESC has adopted various opinions advocating the development of a common asylum system (28). The Common European Asylum System (CEAS) should be implemented in a manner that ensures a high degree of quality without lowering international levels of protection. Harmonisation should on no account be used to push down the levels of protection currently provided in Member States but should serve to improve legislation in those Member States where protection is inadequate.

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4.5.3.   In order to establish the CEAS, legislative harmonisation needs to be accompanied by substantial cooperation between the Member States. This cooperation and solidarity will improve with the setting-up of the European Asylum Support Office (EASO) proposed by the Commission, which the EESC supports.

European Asylum Support Office

4.5.4.   The new legislation should allow asylum seekers access to the labour market and training, recognise the work of specialised NGOs and give these NGOs full access to the procedures and places that are relevant to their work.

4.5.5.   The procedures laid down by the Dublin Regulation should be amended to leave asylum-seekers free to choose in which country to submit their asylum applications, taking into account humanitarian considerations and family, cultural and social ties.

4.5.6.   It will be possible to appeal against decisions regarding these applications, and these appeals must have suspensive effect in line with the case-law of the European Court of Human Rights.

4.5.7.   Detention of asylum seekers and irregular immigrants in detention centres is still common practice in a number of EU Member States. The EESC is opposed to these practices and believes that internment in detention centres should be an exceptional measure.

4.5.8.   The EESC believes that respect for human rights is an essential condition for conclusion of readmission agreements with third countries, and is against the EU or Member States concluding repatriation or border control agreements with countries that have not signed the main international legal instruments for defending human rights.

4.5.9.   The EESC believes that intra-European financial solidarity regarding asylum should be increased; to this end, the European Refugee Fund should be increased and modified.

intra-European financial solidarity regarding asylum should be increased

Brussels, 4 November 2009.

The President of the European Economic and Social Committee

Mario SEPI

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(1)  Mr Frattini, former Vice-President, claimed that only 53 % of objectives had been attained.

1

(2)  European Pact on Immigration and Asylum, Council of the European Union, Brussels, 13440/08, 24 September 2008.

2

(3)  Report of the Informal High-Level Advisory Group on the Future of European Home Affairs Policy (‘The Future Group’) Liberty, Security, Privacy - European Home Affairs in an open world, June 2008.

3

Liberty, Security, Privacy - European Home Affairs in an open world

(4)  http://ec.europa.eu/justice_home/news/consulting_public/news_consulting_0001_en.htm.

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(5)  COM(2009) 262.

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(6)  EESC opinion of 4.9.2009 on Respect for fundamental rights in European immigration policies and legislation, rapporteur: Mr Pariza Castaños (see page 29 of the current Official Journal).

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Respect for fundamental rights in European immigration policies and legislation

(7)  OJ C 318, 23.12.2006, p. 163.

7

(8)  OJ C 218, 11.9.2009, p. 69.

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(9)  See the Relevant Council of Europe Resolutions and Recommendations in the field of efficiency and fairness of justice (CEPEJ(2003)7 rev., of 13 November 2003).

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Relevant Council of Europe Resolutions and Recommendations in the field of efficiency and fairness of justice

(10)  COM(2008) 840 final.

10

(11)  30 April 2006.

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(12)  COM(2009) 313 final.

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(13)  OJ C 228, 22.9.2009, p. 14, and OJ C 325, 30.12.2006, p. 43.

13

(14)  OJ C 325, 30.12.2006, p. 65.

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(15)  OJ C 182, 4.8.2009, p. 19, and OJ C 77, 31.3.2009, p. 102.

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(16)  OJ C 256, 27.10.2007, p. 66.

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(17)  OJ C 208, 3.9.2003, p. 76.

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(18)  Opinion on the Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee: Towards a European e-Justice Strategy, rapporteur: Mr Pegado Liz (OJ C 318, 23.12.2009, p. 69).

18

Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee: Towards a European e-Justice Strategy

(19)  OJ C 318, 23.12.2006, p. 147, and OJ C 211, 19.8.2008, p. 61.

19

(20)  European Union Agency for Fundamental Rights, 2009, The Stockholm Programme: A chance to put fundamental rights protection right in the centre of the European Agenda, pp.6 and 7.

20

The Stockholm Programme: A chance to put fundamental rights protection right in the centre of the European Agenda

(21)  OJ C 44, 16.2.2008, p. 91.

21

(22)  OJ C 302, 7.12.2004, p. 49

22

(23)  OJ C 218, 11.9.2009, p. 69.

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(24)  OJ C 286, 17.11.2005, p. 20.

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(25)  Directive EC/50/2009.

25

(26)  OJ C 27, 3.2.2009, p. 114.

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(27)  COM(2008) 610 final.

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(28)  OJ C 204, 9.8.2008, p. 77, OJ C 218, 11.9.2009, p. 78, and the EESC opinions of 16.7.2009 on the Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (recast), rapporteur: Ms Le Nouail-Marlière (OJ C 317, 23.12.2009, p. 110), and of 16.7.2009 on the Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), rapporteur: Ms Le Nouail-Marlière (OJ C 317, 23.12.2009, p. 115).

28

Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (recast)

Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast)

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