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Justice and Home Affairs Council, 8-9 December 2022
Justice (Friday 9 December)
Fight against impunity in Ukraine
The Council adopted conclusions on the fight against impunity regarding crimes committed in connection with Russia’s war of aggression against Ukraine.
Nine months into the war, Russia continues its horrific and indiscriminate attacks against Ukrainian citizens and civilian infrastructure. Every day new discoveries are made of war crimes committed in Ukraine. The EU stands by Ukraine and its people and will continue supporting Ukrainian authorities and the ICC to ensure those responsible for these crimes are brought to justice.
Pavel Blažek, Czech Minister of Justice
The conclusions call on member states and the relevant EU bodies to continue supporting the Ukrainian Prosecutor General’s Office and the International Criminal Court (ICC). It also asks member states to adopt measures to fully implement the definition of core international crimes and modes of liability and to allow the exercise of universal jurisdiction or other forms of domestic jurisdiction over these crimes. Member states should also strengthen the support and protection of victims of core international crimes in criminal proceedings.
Ministers discussed the draft directive on asset recovery and confiscation. They focused in particular on the procedural rights of non-suspects. They considered whether the rights to a fair trial and an effective remedy as included in the proposal provide sufficient protection to all persons affected by the measures. They also assessed whether to extend the right of defence to persons who are not those being charged with the criminal offence but are affected by the measures.
Ministers broadly expressed support for providing procedural protection to all persons affected by the measures, including persons not accused or suspected of a crime, at least to the extent provided for in the proposal. On the basis of the discussion, work will now continue at technical level.
The Council agreed its mandate for negotiations with the European Parliament on the environmental crime directive. This proposal aims to improve the investigation and prosecution of environmental crime offences. It defines environmental crime more precisely and adds new types of environmental criminal offences. It also harmonises the level of penalties for natural persons and for the first time for legal persons as well.
The Council today adopted its mandate for negotiations with the European Parliament on the proposed regulation on the digitalisation of judicial cooperation and access to justice and proposed accompanying directive. These proposals will improve the effectiveness and speed of judicial procedures and facilitate citizens’ access to justice.
Strategic lawsuits against public participation (SLAPP)
Ministers discussed for the first time the draft directive against strategic lawsuits against public participation (anti-SLAPP directive). They focused in particular on the need for adequate safeguards against the abuse of civil proceedings while ensuring that the right to effective access to justice is maintained.
This proposal seeks to protect journalists and human rights defenders against abusive litigation aimed to silence them. Member states have broadly supported the goal of the directive to protect the right to freedom of expression and information. They have also flagged the need to ensure that the procedural safeguards provided for in the proposal will not be abused and that the claimant's access to justice, which is also a fundamental right, will still be guaranteed. These measures should be carefully targeted and in line with the right to a fair trial.
Over lunch, ministers discussed the fight against antisemitism. They considered how to maximise efforts to fight antisemitism at all levels and across society, how to effectively streamline the discussions, which instruments are most fundamental to fight antisemitism online, what member states are doing to improve recording and reporting of antisemitic incidents and what actions are being taken to secure and allocate adequate financial resources on national and EU levels.
Fundamental rights
Ministers discussed the EU’s accession to the European convention on Human Rights, in particular the final outstanding elements of these negotiations. The negotiations with the Council of Europe were formally relaunched in June 2020 and have since then made very good progress, with provisional agreements reached on a number of key elements.
Under other items the Commission presented its annual report on the application of the EU fundamental rights charter. The focus of this year’s report is on the empowerment of civil society organisations, rights defenders and justice practitioners as key actors in our democracies.
e-evidence
The Presidency reported on progress made on the e-evidence proposals. It informed ministers of the provisional political agreement reached with the European Parliament on 29 November. Technical work is now ongoing to finalise the legal texts so that they can be submitted to member states for endorsement.
The e-evidence legislative proposals aim to speed up access to electronic evidence by creating a legal framework for judicial orders addressed directly to a service provider or to its legal representative in another member state.
The Council adopted conclusions on enhancing the capacities of the European judicial cybercrime network (EJCN) thus supporting the establishment of the formal EJCN Secretariat that should function as a necessary support structure for the EJCN to enable the EJCN to meet the needs and expectations of practitioners involved in the field of cybercrime.
The presidency also reported on the preparations and agenda for the next EU-US ministerial meeting in the area of justice and home affairs, as well as on the outcome of the EU-Western Balkans ministerial forum on Justice and Home Affairs.
The Presidency informed ministers on the conference on whistleblowing which took place in Prague on 26-27 October. This meeting took a look at the developments in the transposition of the directive on whistleblowing and on the protection of whistle-blowers more generally.
The Presidency also presented the results of the workshop on digitalisation of justice which took place on 24 October in Brussels.
The Commission presented a recommendation on procedural rights of suspects and accused persons subject to pre-trial detention and on material detention conditions.
The upcoming Swedish presidency of the Council presented its work programme and priorities for the next six months.
Home affairs (Thursday 8 December)
Schengen area
The Council today adopted a decision on the full application of the Schengen acquis in Croatia.
I am very pleased that during the Czech Presidency, Croatia was able to take two important steps in its European integration by joining both the euro and the Schengen areas. I am confident that these successes will pave the way for other member states who fulfil the conditions to take the next step in their European journeys, and my colleagues and I will continue to work hard to ensure that we can welcome Bulgaria and Romania into the Schengen family in the near future.
Vít Rakušan, Czech Minister of Interior
Ministers also looked at the overall state of the Schengen area, with a focus on internal security measures including the interoperability of IT systems and countering migrant smuggling. They endorsed a series of actions to fight migrant smuggling, covering three areas: maintaining robust situational awareness, supporting stronger cross-border operational action against criminal networks and the role of JHA agencies and inter-agency cooperation. Ministers also endorsed the revised timeline for the entry into operation of the upgraded Schengen Information System, which is now expected to take place by 7 March 2023.
Asylum and migration
The presidency provided a state of play on asylum and migration files. During the past months, intensive work has mainly focused on finding a way forward on EU migration solidarity, responsibility and crisis response. Work to integrate these principles in the legislative texts will continue under the upcoming Swedish presidency. The presidency also informed about recent positive developments related to the inter-institutional cooperation between the Council and the European Parliament, allowing to restart work on 5 legislative proposals under the Pact on migration and asylum.
Ministers assessed progress in ongoing work on a regulation to address situations of instrumentalisation in the field of migration and asylum. This regulation would allow member states facing a situation of instrumentalisation to exceptionally derogate from some of the common European asylum rules, where necessary and proportionate. It would also provide for specific rules on support and solidarity measures that may be taken in such a situation.
Ministers also exchanged views on the external dimension of migration and the situation along the main migratory routes. They highlighted the need to address the external dimension of migration in a comprehensive manner, taking into account all routes and making joint or complementary efforts where possible. Under this point, the European Commission presented its recent action plan on the Western Balkan route, which follows its action plan on the Central Mediterranean, issued on 21 November. The Commission was invited to propose action plans on the remaining routes.
Over lunch, ministers discussed how to improve the effectiveness of the EU return policy. They underlined the importance of the visa leverage and endorsed a timeline proposed by the presidency while underlining the need to use leverage in different fields to improve the third country cooperation on readmission.
The Council also adopted, as an item without discussion, an implementing decision increasing the visa fee applied to nationals of The Gambia to €120, seeking to improve The Gambia’s cooperation on the return and readmission of its own nationals.
Ministers exchanged views on the situation of Ukrainian refugees in the EU, in particular as regards accommodation and reception facilities, and on contingency planning during winter. According to the latest figures, EU member states are hosting nearly 4 million Ukrainian refugees and at least 700 000 children are enrolled in the education systems.
Ministers also took stock of the internal security dialogue with Ukraine to address shared security challenges stemming from Russia’s war of aggression, including border security or the risk of illicit firearms trafficking and other serious crime.
Under other business the Commission updated ministers on the response provided in the context of the EU civil protection mechanism to challenges arising from the war in Ukraine, including on recent challenges in the field of energy.
The Council also adopted without discussion a decision not to accept Russian documents issued in Ukraine and Georgia. Russian travel documents issued in, or to persons resident in, Russian-occupied regions in Ukraine or breakaway territories in Georgia will not be accepted as valid travel documents for obtaining a visa or crossing the borders of the Schengen area.
The Council adopted a directive and a recommendation which aim to reduce the vulnerabilities and strengthen the resilience of critical entities. These entities provide essential services that are crucial for the maintenance of vital societal functions, economic activities, public health and safety, and the environment. They need to be able to prevent, protect against, respond to, cope with and recover from hybrid attacks, natural disasters, terrorist threats and public health emergencies.
Ministers assessed progress made on the draft regulation to prevent and combat child sexual abuse online. Discussions in the Council have taken place at technical level, which has concluded the first examination of the full text. Following this, the Presidency has presented several proposals to revise the text, notably covering the subject matter and scope, definitions, obligations of online service providers and supervision, enforcement and cooperation. Work on the regulation will continue during the upcoming Swedish Presidency of the Council.
Ministers were briefed on the cooperation between competent authorities dealing with counter-terrorism, in the presence of the counter-terrorism group (CTG).
The presidency informed ministers about the latest developments in work on current legislative proposals.
The presidency also reported on the preparations and agenda for the next EU-US ministerial meeting in the area of justice and home affairs, as well as on the outcome of the EU-Western Balkans ministerial forum on Justice and Home Affairs.
The Presidency informed on the outcome of the Prague process ministerial conference, where a joint declaration and an action plan for 2023-2027 were adopted.
Portugal presented a point on the designation of the Director General of the International Organisation for Migration (IOM).
The Commission presented a point on wildfire preparedness in the context of the EU civil protection mechanism, following the intense fire season this summer in the EU.
The upcoming Swedish presidency of the Council presented its work programme and priorities for the next six months.
Nine months into the war, Russia continues its horrific and indiscriminate attacks against Ukrainian citizens and civilian infrastructure. Every day new discoveries are made of war crimes committed in Ukraine. The EU stands by Ukraine and its people and will continue supporting Ukrainian authorities and the ICC to ensure those responsible for these crimes are brought to justice.
I am very pleased that during the Czech Presidency, Croatia was able to take two important steps in its European integration by joining both the euro and the Schengen areas. I am confident that these successes will pave the way for other member states who fulfil the conditions to take the next step in their European journeys, and my colleagues and I will continue to work hard to ensure that we can welcome Bulgaria and Romania into the Schengen family in the near future.