Asser Round Table
On
The EU area of Freedom, Security and Justice in the wider world:
Implementing the external dimension of
The Stockholm Programme
09.30 – 09.35
Opening by Mr Rob Visser, Ministry of Justice
09.35 – 09.40
Welcome: Professor F. Nelissen, Director T.M.C. Asser Instituut
09.40 – 09.55
Speech of HE Dr. E.M.H. Hirsch Ballin, Dutch Minister of Justice (tbc)
Chair of the day: Ms Dr. Marlèn Dane, Ministry of Justice
Basic principles of mutual legal assistance agreements and extradition of the Union with third countries
10.00 – 10.20
Professor Valsamis Mitsilegas (Professor of European Criminal Law at Queen Mary, University of
London)
10.20 – 10.40
Mr. Peter Csonka (Head of the Unit “Criminal Justice”, European Commission, DG Freedom,
Security and Justice)
10.40 – 11.10
Discussions chaired by Professor Dr. John A.E. Vervaele (Director G.J. Wiarda Instituut, Law
Faculty University of Utrecht)
11.10 – 11.35 Break
Combating illegal immigration: returning illegally staying third country nationals while cooperating with and assisting
transit countries and countries of origin
11.35 – 11.55
Professor Dr. Philippe De Bruycker (Professor Immigration Law at the Free University of
Brussels)
11.55 – 12.15
Mr. Peter Bosch (Deputy Head of the unit B3 "International aspects of migration and visa
policy”, Directorate Immigration and Asylum at DG Freedom, Security and Justice)
12.15 – 12.45
Discussions chaired by Dr. Hans Nilsson (visiting professor College of Europe and Head of
Division Council secretariat)
12.45 – 14.15 Lunch
Data protection clauses in international agreements of the Union: striking the right balance between the demand for
data for law enforcement purposes and the protection of privacy
14.15 – 14.35
Professor Douwe Korff (Professor of International law at London Metropolitan University)
14.35 – 15.05
Mr. Hielke Hijmans (Coordinator European Data Protection Supervisor)
15.05 – 15.35
Discussions chaired by Mr. Julian Schutte (Director Legal Service EU Council Secretariat)
15.35 – 16.00 Break
16.00 – 16.20
16.20 -17.00
Brief conclusions and suggestions for further debate by the moderators: Professor John
Vervaele, Dr. Hans Nilsson and Mr. Julian Schutte
Round table discussion
17.00 – 17.30 Closing reception
Peter Bosch works for the European
Commission, DG Freedom, Justice and Security
as deputy Head of the Unit dealing with the
international aspects of migration and visa
policy. He is responsible for the development of
the European policies in these domains. He
contributed
to
various
Commission
Communications and was involved in the
development of the European Pact on
Immigration and Asylum, adopted by the
European Council under the French Presidency.
He was also involved in preparing the
Stockholm programme, the 5-year plan for the
development of EU policies in the area of
Justice, Freedom and Security adopted in
December 2009.
Peter Csonka is Head of Unit “Criminal Justice”,
DG Freedom, Security and Justice at the
European Commission.
Philippe DE BRUYCKER (Phd in Law from
Brussels University) is Professor at the Institute
for European Studies and the Law Faculty of the
Université Libre de Bruxelles (U.L.B. in Belgium)
where he teaches Immigration and Asylum Law
and Policy of the European Union, Free
movement of European Citizens, Belgian Aliens
Law, European Community Law and
International Immigration and Asylum Law.
Hielke HIJMANS is, as from October 2004,
Coordinator for Legislative Consultations Team
and for Court Proceedings at the European Data
Protection Supervisor (EDPS). This task includes
representing the EDPS before the Court of
Justice. Issues he worked on include proposals
in the area of police and judicial cooperation,
the Stockholm Programme and the future of the
data protection Directive 95/46.
Douwe Korff is a Dutch comparative and
international lawyer, Professor of International
Law at London Metropolitan University, London
(UK), and a leading human rights- and data
protection expert. His extensive work in the
field of data protection includes half a dozen
studies for the EU Commission, including a
comparative report on implementation of the
main EC directive on data protection in the
EU15 (2003).
Valsamis Mitsilegas is Professor of European
Criminal Law at Queen Mary, University of
London. From 2001 to 2005 he was legal adviser
to the House of Lords European Union
Committee. His interests and expertise lie
primarily in the area of EU law, in particular EU
Justice
and
Home
Affairs
(including
immigration, asylum and border controls,
criminal law, police and judicial co-operation in
criminal matters and the external dimension of
EU action in these fields).
Mr Hans Nilsson holds a law degree (1979) from
Uppsala University in Sweden. He has worked as
a judge at the Court of Appeal in Jönköping,
Sweden before entering private practice. In 1996,
he was appointed to his current position as Head
of the Division of Judicial Cooperation at the
Council of the European Union in Brussels. In
March 2009, he joined the Swedish Permanent
Representation as Minister and Head of the JHA
Counselors to head a team of Counselors dealing
with the Swedish Presidency until 31 December
2009. He was also responsible for the
negotiations in Brussels for the Stockholm
Programme on behalf of the Presidency.
Julian Schutte is Director Legal Service EU
Council Secretariat.
John Vervaele is Professor in criminal law and
criminal procedure at the Utrecht School of Law
with more than 25 years of experience. His
research and teaching focus on criminal
procedure, European criminal law, human rights
and comparative criminal procedure. His
professional experience includes time spent at
the Belgian Ministry of Justice and several
visiting professorships in Europe, the US and
Latin
America.
2
Conference Reader
A) Extracts from the Stockholm Programme-General aspects on the
external dimension of the AFSJ
7. Europe in a globalised world – the external dimension of freedom, security and justice1
The European Council emphasizes the importance of the external dimension of the EU's policy in
the area of freedom, security and justice and underlines the need for the increased integration of these
policies into the general policies of the European Union. The external dimension is crucial to the
successful implementation of the objectives of this programme and should in particular be fully
coherent with all other aspects of EU foreign policy.
7.1 A reinforced external dimension
The European Council has decided that the following principles will continue to guide European Union
action in external relations in the area of freedom, security and justice in the future:
- The Union has a single external relations policy,
- The Union and the Member States must work in partnership with third countries,
- The Union and the Member States will actively develop and promote European and international
standards,
- The Union and the Member States will cooperate closely with their neighbours,
- The Member States will increase further the exchange of information between themselves and within
the Union on multilateral and bilateral activities,
- The Union and the Member States must act with solidarity, coherence and complementarity,
- The Union will make full use of all ranges of instruments available to it,
- The Member States should coordinate with the Union so as to optimise the effective use of resources,
- The Union will engage in information, monitoring and evaluation, inter alia in collaboration with the
European Parliament,
- The Union will work with a proactive approach in its external relations.
The European Council considers that the JLS policies should be well integrated into the general
policies of the Union. The adoption of the Lisbon Treaty offers new possibilities for the European Union
to act more efficiently in external relations. The new High Representative, who is also a Vice President of
1
Page 73 of the Stockholm programme and following.
http://www.se2009.eu/polopoly_fs/1.26419!menu/standard/file/Klar_Stockholmsprogram.pdf
3
the Commission, the European External Action Service and the Commission will ensure better coherence
between traditional external policy instruments and internal instruments with significant external
dimensions, such as freedom, security and justice. Consideration should be given to the added value
that could be achieved by including specific JLS competence in EU delegations in strategic partner
countries. Furthermore, the legal personality of the Union should enable the Union to act with increased
strength in international organisations.
7.3 Continued thematic priorities with new tools
The European Council considers that the key thematic priorities identified in the previous
strategy remain valid, i.e. the fight against terrorism, organised crime, corruption, drugs, the exchange
of personal data in a secure environment and managing migration flows. The fight against trafficking in
human beings and smuggling of persons needs to be stepped up.
Building on the Strategy for Justice, Home Affairs and External Relations adopted in 2005 and
other relevant acquis in this field, such as the Global Approach to Migration, EU external cooperation
should focus on areas where EU activity provides added value, in particular:
- Migration and asylum, with a view to increasing EU dialogue and cooperation with countries of origin
and transit in order to improve their capacity to carry out border control, to fight against illegal
immigration, to better manage migration flows and to ensure protection as well as to benefit from the
positive effects of migration on development; return and readmission is a priority in the EU’s external
relations,
- Security, by engaging with third countries to combat serious and organised crime, terrorism, drugs,
trafficking in human beings and smuggling of persons, inter alia by focusing the EU’s counter-terrorism
activities primarily on prevention and by protecting critical infrastructures, Internal and external security
are inseparable. Addressing threats, even far away from our continent, is essential to protecting Europe
and its citizens,
- Information exchange that flows securely, efficiently and with adequate data protection standards
between the EU and third countries,
- Justice, to promote the rule of law and human rights, good governance, fight against corruption, the
civil law dimension, promote security and stability and create a safe and solid environment for business,
trade and investment,
- Civil protection and disaster management, in particular to develop capacities of prevention and
answers to major technological and natural catastrophes as well as to meet threats from terrorists.
The European Council invites the Commission to:
 examine whether ad hoc cooperation agreements with specific third countries to be identified by
the Council could be a way of enhancing the fight against trafficking and smuggling of persons and
making proposals to that end. In particular, such agreements could involve full use of all leverage
available to the Union, including the use of existing financing programmes, cooperation in the
exchange of information, judicial cooperation and migration tools.
The threat of terrorism and organised crime remains high. It is therefore necessary to work with
key strategic partners to exchange information while continuing to work on longer-term objectives such
as measures to prevent radicalisation and recruitment, as well as the protection of critical
infrastructures. Operational agreements by Eurojust, Europol, as well as working arrangements with
Frontex, should be strengthened.
7.4 Agreements with third countries
4
The Lisbon Treaty provides for new and more efficient procedures for the conclusion of
agreements with third countries. The European Council recommends that such agreements, in particular
as regards judicial cooperation as well as in the field of civil law, should be considered to be used more
frequently, while taking account of multilateral mechanisms. It notes however that Member States will
maintain the option of entering into bilateral agreements which comply with Union law, and that a legal
framework has been created for certain bilateral agreements in civil law as well.
Protection of personal data is a core activity of the Union. There is a need for a coherent
legislative framework for the Union for personal data transfers to third countries for law enforcement. A
framework model agreement consisting of commonly applicable core elements of data protection could
be created.
B) Topics of the Round table
1) Basic principles of mutual legal assistance agreements and extradition of
the Union with third countries
Professor Valsamis Mitsilegas (Professor of European Criminal Law at Queen Mary, University of
London)
The presentation will discuss the development of basic principles for the conclusion of
agreements on judicial cooperation in criminal matters between the European Union and third countries.
In this context, I will focus in particular on the feasibility of achieving coherence between EU internal
and external action in the field. I will examine the issues of coherence at two levels: at the level of
coherence of EU external action in the field with the values of the EU as proclaimed in the Lisbon Treaty
(see in particular Articles 2 and 3 TEU); and at the level of coherence of EU external action with the
internal EU acquis in the field.
Mr. Peter Csonka (Head of the Unit “Criminal Justice”, European Commission, DG Freedom, Security
and Justice)
In the area of Justice, Freedom and Security over the past decade the European Union started to
be perceived as an independent international partner. As regards the cooperation in criminal matters first
steps at the international level were taken by the EU after the terrorist attacks of 9/11/2001. The EU-US
Mutual Legal Assistance and Extradition Agreements were negotiated and signed in cooperative
atmosphere in a record time. This successful beginning was followed by the signature of few other
agreements. The background for negotiating these agreements differed from case to case. With the entry
into force of the Lisbon Treaty and the new Stockholm Programme the time has come to dwell upon the
future criteria set by the Council. These criteria should be followed when deciding on entering into
negotiations of international agreements with third countries in the field of cooperation in criminal
matters. The future Stockholm Action plan will give a mandate to the Commission to make a proposal to
the Council to establish list of criteria or guidelines that should be followed in the future. The
Commission is looking forward to hearing from participants on this issue during the Round Table
discussion.
5
The Stockholm Programme: Mutual Legal Assistance Agreements and Extradition
Agreements2
As regards the criminal law field, it will be necessary to identify priorities for the negotiations of
mutual assistance and extradition agreements. The Union should actively promote the widest possible
accession of the partner countries to the most relevant and functioning Conventions and to offer as
much assistance as possible to other States with a view to the proper implementation of the
instruments. The Institutions should ensure, to the furthest extent possible, coherence between the EU
and the international legal order. Where possible, synergy with the Council of Europe work should be
considered.
The European Council calls upon the Commission, the Council and the European Parliament
where appropriate to: develop a policy aimed at the establishment of agreements on international
judicial cooperation with third countries of interest or within international organisations. In particular,
the following criteria should be taken into account when deciding on the priority countries: strategic
relationship, whether bilateral agreements already exist, whether the country in question adheres to
Human Rights’ principles, whether the country concerned cooperates with the EU in general and its
Member States, and priorities of law enforcement and judicial cooperation, (omissis)
The European Council further invites the Commission to: submit to the Council in 2010 a list of
countries that have requested to conclude agreements on mutual legal assistance and extradition with
the Union as well as an assessment, based on the above mentioned principles of the appropriateness
and urgency of concluding such agreements with these or other countries.
Police and criminal justice cooperation (old Title VI EU treaty)
International agreements
Concluded
 UN Organised crime Convention and two Protocols
 UN Convention on corruption
 Mutual assistance and extradition treaty with USA (http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:22003A0719(02):EN:HTML & http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:22003A0719(01):EN:HTML )
Signed
 EC signature of firearms protocol to UN Convention on international crime
 Treaty with Norway and Iceland on mutual assistance
 Mutual assistance treaty with Japan
 SWIFT treaty with USA (COM (2009) 703, 17 Dec. 2009)
 Treaty with Norway and Iceland associating them with Prum Decisions
 Treaty with Norway and Iceland regarding extradition
 PNR treaty with USA (http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=5
2009PC0702 )
 PNR treaty with Australia
2
Supra note 1, p.34.
6
2) Combating illegal immigration: returning illegally staying third country
nationals while cooperating with and assisting transit countries and countries
of origin
Professor Dr. Philippe De Bruycker (Professor Immigration Law at the Free University of Brussels)
Mr. Peter Bosch (Deputy Head of the Unit B3 "International aspects of migration and visa policy”,
Directorate Immigration and Asylum at DG Freedom, Security and Justice)
Adopted in December 2009, the Stockholm programme sets out the main EU policy guidelines for
the work in the areas of Justice, Freedom and Security for the next 5 years. In order to promote its socioeconomic development and ensure internal security, the EU needs to put in place more effective policy to
manage the flows of people. Migration, asylum and international
mobility will of key importance and at the centre of political attention. How will the EU and its Member
States be able to develop a truly comprehensive policy that meets the different interests in these areas?
No doubt solidarity and fair sharing of responsibility are conditional to successful implementation of the
Stockholm programme, but how can these be transformed into reality? We will look more specifically at
the elements an effective policy on illegal migration should contain.
Combating illegal immigration: returning illegally staying third country nationals while
cooperating with and assisting transit countries and countries of origin: The Stockholm
Programme3
The European Council has consistently underlined the need for EU migration policy to be an
integral part of EU external policy and recognises that the EU Global Approach to Migration has proven
its relevance as the strategic framework for this purpose. Based on the original principles of solidarity,
balance and true partnership with countries of origin and transit outside the Union and in line with what
already has been accomplished, the European Council calls for the further development and
consolidation of this integrated approach. The implementation of the Global Approach needs to be
accelerated by the strategic use of all its existing instruments and improved by increased coordination. A
balance between the three areas (promoting mobility and legal migration, optimising the link between
migration and development, and preventing and combating illegal immigration) should be maintained.
The principal focus should remain on cooperation with the most relevant countries in Africa and Eastern
and South-Eastern Europe. Dialogue and cooperation should be further developed also with other
countries and regions such as those in Asia and Latin America on the basis of the identification of
common interests and challenges.
An effective and sustainable return policy is an essential element of a well-managed migration
system within the Union. The European Union and the Member States should intensify the efforts to
return illegally residing third-country nationals. Necessary financial means should be allocated for this
purpose. Such a policy must be implemented with full respect for the principle of “non-refoulement” and
for the fundamental rights and dignity of the individual returnees. Voluntary return should be preferred,
while acknowledging the inevitable need for efficient means to enforce returns where necessary.
In order to create a comprehensive approach on return and readmission, it is necessary to step
up cooperation with the countries of origin and of transit within the framework of the Global Approach
to Migration and in line with the Pact on Migration and Asylum, while recognising that all States are
required to readmit their own nationals who are staying illegally on the territory of another State.
3
Ibid, p.60
7
It is important to ensure that the implementation of the newly adopted instruments in the area
of return and sanctions against employers, as well as the readmission agreements in force, is closely
monitored in order to ensure their effective application.
Migration, asylum, borders and visa
International agreements (concluded, signed, under negotiations)

















Asylum treaty with Norway and Iceland
EC/Hong Kong readmission agreement (http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:017:0023:0024:EN:PDF )
Treaty with China on 'Approved Destination Status'
EC/Macao readmission agreement
EC/Sri Lanka readmission agreement
Treaties with Denmark
EC/Albania readmission agreement
EC/Norway/Iceland protocol on asylum responsibility
UN Convention on trafficking in persons
EC/Russia readmission agreement
EC/Russia Visa facilitation treaty
EC/Ukraine readmission agreement
EC/Ukraine visa facilitation treaty
Visa facilitation and readmission agreements with Western Balkans
Visa facilitation and readmission agreements with Moldova
Schengen and asylum Treaties with Switzerland
Readmission agreement with Pakistan
3) Data protection clauses in international agreements of the Union: striking
the right balance between the demand for data for law enforcement purposes
and the protection of privacy
Professor Douwe Korff (Professor of International law at London Metropolitan University)
Mr. Hielke Hijmans (Coordinator European Data Protection Supervisor)
Outline: Background and context; Extraterritorial effect; A general agreement on sharing and
protection with the US; Swift.
8
Data protection, data exchange and the Stockholm Programme 4
When it comes to assessing the individual’s privacy in the area of freedom, security and justice,
the right to freedom is overarching. The right to privacy and the right to the protection of personal data
are set out in the Charter of Fundamental Rights. The Union must therefore respond to the challenge
posed by the increasing exchange of personal data and the need to ensure the protection of privacy. The
Union must secure a comprehensive strategy to protect data within the EU and in its relations with
other countries. In that context, it should promote the application of the principles set out in relevant
EU instruments on data protection and the 1981 Council of Europe Convention on data protection as
well as promoting accession to that convention. It must also foresee and regulate the circumstances in
which interference by public authorities with the exercise of these rights is justified and also apply data
protection principles in the private sphere.
The Union must address the necessity for increased exchange of personal data whilst ensuring
the utmost respect for the protection of privacy. The European Council is convinced that the
technological developments not only present new challenges to the protection of personal data, but
also offer new possibilities to better protect personal data.
Basic principles such as purpose limitation, proportionality, legitimacy of processing, limits on
storage time, security and confidentiality as well as respect for the rights of the individual, control by
national independent supervisory authorities, and access to effective judicial redress need to be ensured
and a comprehensive protection scheme must be established. These issues are also dealt with in the
context of the EU Information Management Strategy set out in Chapter 4.
On a broader front, the Union must be a driving force behind the development and promotion
of international standards for personal data protection, based on relevant EU instruments on data
protection and the 1981 Council of Europe Convention, and in the conclusion of appropriate bilateral or
multilateral instruments.
Europol and Eurojust should step up their cooperation further. Eurojust should ensure that its
work is followed up at judicial level. Europol and Eurojust should expand their work with third countries
especially by forging closer links with the regions and countries neighbouring the Union; Europol should
work more closely with European Security and Defence Policy (ESDP) police missions and help promote
standards and good practice for European law enforcement cooperation in countries outside the EU.
Cooperation with Interpol should be stepped up with a view to creating synergies and avoiding
duplication.
4
Ibid. p18
9
The European Council invites the Commission, and, where appropriate, the Council and the High
Representative, to
• examine how it could be ensured that Europol receives information from Member States law
enforcement authorities so that the Member States can make full use of Europol capacities,
• examine how operational police cooperation could be stepped up, e. g. as regards
incompatibility of communication systems and other equipment, use of undercover agents, and, where
necessary, draw operational conclusions to that end,
• issue as soon as possible a reflection document on how best to ensure that the activities of
Europol may be scrutinised and evaluated by the European Parliament, together with national
parliaments in line with Articles 85 and 88 TFUE,
• consider developing a Police Cooperation Code which would consolidate existing instruments
and, where necessary, amend and simplify them,
• make a proposal to the Council and the European Parliament to adopt a decision on the
modalities of cooperation, including on exchange of information between EU agencies, in particular
Europol, Eurojust and Frontex, which ensures data protection and security,
• propose measures on how EU agencies in this area could conclude operational arrangements
between themselves and how they should develop their participation in regional initiatives conducted
by Member States and in regional bodies that further law enforcement cooperation,
• agree on common quality standards within the forensic field, inter alia to develop best
practice for crime scene investigations,
• examine whether there are obstacles to cooperation between ESDP police missions and
Europol and make appropriate proposals to eliminate such obstacles.
Pilot projects in cross-border regional cooperation dealing with joint operational activities
and/or cross-border risk assessments, such as Joint Police and Customs Centres, should be promoted by
the Union, inter alia through financing programmes.
International agreements of the relevant EU agencies









Operational Agreements with non-EU States signed by Europol: Australia, Canada Croatia
Iceland, Norway, Switzerland, United states of
America(http://www.europol.europa.eu/legal/agreements/Agreements/16268-2.pdf &
http://www.europol.europa.eu/legal/agreements/Agreements/16268-1.pdf )
Strategic Agreements with non-EU States signed by Europol: Albania, Bosnia & Herzegovina,
Colombia (http://www.europol.europa.eu/legal/agreements/Agreements/17691.pdf), Former
Yugoslav Republic of Macedonia, Moldova, Russia
(http://www.europol.europa.eu/legal/agreements/Agreements/16191.pdf ), Turkey
Operational Agreements with International organisations signed by Europol: Interpol
Strategic Agreements with International Organisations signed by Europol: World Customs
Organization, United Nations Office on Drugs and Crime
Eurojust agreement with Switzerland
Eurojust agreement with Croatia
Eurojust agreement with the United States of America
http://www.eurojust.europa.eu/official_documents/Agreements/061106_EJ-US_cooperation_agreement.pdf
Eurojust agreement with Iceland
Eurojust agreement with Norway
10
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feasibility of CLEER’s findings and proposals.
Research programme
T.M.C. Asser Instituut inter-university research centre
Founded in 2008, the Centre for the Law
of EU External Relations (CLEER) is the
first authoritative research interface
between academia and practice in the
field of the Union’s external relations.
CLEER serves as a leading forum for
debate on the role of the EU in the world,
but its most distinguishing feature lies in
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in-house
research
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complemented by an extensive network of
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Goals
• To carry out state-of-the-art research leading to
offer solutions to the challenges facing the EU in
the world today.
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CLEER’s research focuses primarily on four
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
the fight against illegal immigration and crime;

the protection and promotion of economic and
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
the protection of the environment, climate and
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
the ability to provide military security.
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