FIRST INTERIM REPORT - LEGAL 1 The Development of CISE of the Surveillance of the EU Maritime Domain and their related impact assessment Interim Report.

FIRST INTERIM REPORT - LEGAL 1

The Development of CISE of the Surveillance of the EU Maritime Domain and their related impact assessment

Interim Report – LegalWSP 1.1 and WSP 1.2

MSESG 4 JULY 2013

Legal experts:Sandra Synková, PhD.Rasmus Shermer

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Interim Report - Legal

MSESG 4 JULY 2013

› updated version submitted 24 May 2013 on WSP 1.1 (Mapping use groups based on legal limitations, need to know and responsibility to share) and WSP 1.2 (Defining general and specific legal limitations and EU right to act)

› two major areas covered:1. the extent to which the current EU horizontal and sectoral legislation prescribes or

allows for the exchange of maritime surveillance information across the 7 CISE user communities and across borders;

2. options to implement CISE against the background of EU right to act.

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Analysis of horizontal legislation

› Data Protection rules› conditions to the sharing of maritime surveillance data across user communities,

which stem primarily from the purpose limitation principle

› "personal data" have a broad definition, but the scope should not be overstretched › the purpose is to strike the appropriate balance between the protection of the data subject's

rights and legitimate interests of the data controllers, third parties and the public interest

› broad exceptions to the application of the Data Protection Directive on EU level Art. 3 (public security, defence, State security), Article 13 on MS level

› additional measures to compensate for the change of purpose – some possibilities for the data subjects to provide specific consent

› last resort - legislate amendments to sectoral legislation (overall or several separate purposes)

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Analysis of horizontal legislation (cont.)

› two aspects:› whether data can lawfully be shared with others;

› combination of data from different providers in one service provided to the recipient – combination of data, like any other processing of personal data, requires an appropriate legal ground and should not be incompatible with the purposes for which the data was collected.

› Confidentiality of commercial data› stems either from legal rules or contractual provisions

› fragmented approach, no horizontal legislation

› the receiving authority shall apply the same level of confidentiality as the provider of the data and may not, therefore, normally disclose it to third parties not specifically mentioned within the relevant legal framework

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Analysis of sectoral legislation

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› 4 elements:› collected data;

› responsibility to share and access rights;

› limitations to the sharing of information – stemming from horizontal principles and from sectoral legislation;

› suggestions to enhance the possibilities to exchange maritime surveillance information.

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Analysis of sectoral legislation (cont.)

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› the areas in which amendments may be proposed fall broadly into the following categories (or a combination thereof):

1. the sharing of information is voluntary; › Art. 12 of the CF Regulation, Art. 13(4) of the Community Customs code

2. responsibility to share/access rights are provided for competent authorities only;

3. responsibility to share/access rights are provided for recipients in specified MS only; › e.g. flag state, coastal state next port call, along the planned route, concerned

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Analysis of sectoral legislation (cont.)

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4. the information is provided for specified purposes only

› e.g. compliance with the common fisheries policy, maritime safety or security or the protection of the marine environment, implementing inspection procedures, etc.

or under specified circumstances;› e.g. in the event of an emergency

5. specific information/function is excluded;

› e.g. Community customs code, defence

6. in a broader sense – system of ex-post reporting, missing framework› e.g. annual, bi-annual reporting

› not a limitation: information provided to all other MS or made available to public

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Removing sectoral limitations to information sharing

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› different types of limitations – targeted by different means › legislative/non-legislative, binding/non-binding, combination – WSP 1.3

› inextricably linked to policy options for implementing CISE

› most common legal limitation – limited access rights the information may be shared on a voluntary basis unless horizontal principles prohibit such sharing, but it might be necessary to encourage sharing

› some specific limitations stem from overarching horizontal principles

› not all limitations are equally significant› TAG Data Matrix, CooP work to identify the intensity and importance of the limitations

with respect to each use case, questionnaires & interviews

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Simplified preliminary assessment of information flows (presented also at WP4)

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› based on the analysis of the relevant sectoral legislation

› limitations may also stem from horizontal principles

› outline of information flows where access rights are provided to:› competent authorities

› specified purposes

› entire MS (=all authorities)

› public

› italic font – possibility to share ('may be shared')

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Fisheries Control- VMS, AIS, VDS

- Fishing activities, catches & prior notifications- surveillance and inspection data (including joint control and

inspection)

General law enforcement

Customs

Marine Environment

Safety and SecurityDefence

Border control

VMS, AIS, VDS

VMS, AIS, VDS VMS, AIS, VDS

VMS, AIS, VDS

Simplified preliminary assessment of information flows

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Maritime Safety and Security- dangerous and polluting goods; notifications of waste residues; discharging of polluting substances and

infringements; information regarding ship-generated waste; oil spill information- information regarding measures to ensure that VTM sanctions are applied; information on recognised

organisations; Port state control inspection; deficiencies and other safety related information; data collected by flag state; information on certificates and endorsements for seafarers

- VRD; reporting incidents and accidents at sea; passenger data; database on marine casualties; information on the need for an urgent action to prevent casualties

- security information prior to entry into a port; information on ships that failed to comply with security requirements

General law enforcement

Customs

Marine EnvironmentFisheries ControlDefence

Border control

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Simplified preliminary assessment of information flows

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Maritime Safety and Security (cont.)

General law enforcement

Customs

Marine EnvironmentFisheries ControlDefence

Border control VTM sanctions,recognised organisations, deficiencies and other safety related information, marine casualties database

VTM sanctions, recognised organisations, deficiencies and other safety related information, marine casualties database

VTM sanctions, recognised orga- nisations, deficiencies and other safety related infor-mation, marine casualties database

VTM sanctions, recognised organisations, deficiencies and other safety related information, marine casualties database

VTM sanctions,recognised orga-nisations, deficiencies and other safety related information, marine casualties database

dangerous and polluting goods, notifications of waste residues, oil spill information, recognised organisations, deficiencies and other safety related information, VTM sanctions, flag state data, incidents & accidents at sea, marine casualties database

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Simplified preliminary assessment of information flows

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Customs- Customs declarations and accompanying documents

- Customs control information

General law enforcement

Fisheries Control

Marine Environment

Safety and SecurityDefence

Border control

all of the collected data

all of the collected data

all of the collected data

all of the collected data

all of the collected data

all of the collected data

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Simplified preliminary assessment of information flows

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Marine Environment- environmental information (public access)

- river basin plans and programmes- information on management of waters- inventory of substances and pollutants

General law enforcement

Customs

Fisheries ControlSafety and

SecurityDefence

Border control

all of the collected data

all of the collected data

all of the collected data

all of the collected data

all of the collected data

all of the collected data

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Simplified preliminary assessment of information flows

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Border Control- Information on border checks on persons

- Data collected by FRONTEX on external borders and migration situation (migration routes, trends, number of

immigrants)- EUROSUR operational information (situational pictures)

General law enforcement

Customs

Marine Environment

Safety and SecurityDefence

Fisheries control

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Simplified preliminary assessment of information flows

FRONTEX and EUROSUR data -working arrangements(›EUROPOL)

FRONTEX and EUROSUR data – working arrangements (›EMSA)

FRONTEX and EUROSUR data -working arrange- ments (›EFCA)

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General law enforcement- Information on persons that are under suspicion for or

have committed crimes- Data related to criminal offences committed or

investigated

Fisheries Control Customs

Marine Environment

Safety and SecurityDefence

Border control

all of the collected data

all of the collected data

all of the collected data

all of the collected data

all of the collected data

all of the collected data

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Simplified preliminary assessment of information flows

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Defence- Information collected by EDA (development of policies

and strategies, research) and the European External Relation Service (EEAS)

Fisheries Control Customs

Marine Environment

Safety and Security

General law enforcement

Border control

all of the collected data

all of the collected data

all of the collected data

all of the collected data

all of the collected data

all of the collected data

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Simplified preliminary assessment of information flows

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EU Right to act

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› with respect to each policy option an assessment of: › subsidiarity – necessity and added value test

› proportionality of the legal measure

› conferral – appropriate legal basis or bases

› challenges in establishing legal basis (bases) for the CISE measure(s)› maritime policy does not fall under a single sector-based policy

› legal bases for the current legislative acts and measures are founded in several provisions of both TEU and TFEU (pp. 76-77)

› a horizontal measure - aim and content of CISE: CISE seeks to integrate maritime surveillance to generate situational awareness of activities at sea, impacting on the 7 user communities, as well as the economic interests of the EU, so as to facilitate sound decision making (COM (2010) 584)

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EU Right to act (cont.)

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› strict conditions for founding a measure on multiple legal bases – objectives and components have to be inseparably linked, without one being incidental to the other

› examples where multiple legal bases were employed - most recently the Proposal for a Directive establishing a framework for maritime spatial planning (COM(2013) 133 final) – common agricultural policy, transport and environmental policy and energy

› common security and defence policy (TEU) › specific rules and procedures, no legislative acts

› military authorities with civilian functions

› some external dimensions of security (fight against organised crime and terrorism) covered by EU policies within the area of freedom security and justice

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Measures to implement CISE – embracing all user communities under one instrument

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› compatible legal bases (TEU and TFEU) – ECOWAS case (Case C-91/05)

› compatible legislative procedures (ordinary legislative procedure vs. consultation procedure for cooperation in border control)

› compatible instruments (amending legislation)› preferable for the amending act to be of the same type as the amended act

› it is not recommended to amend a regulation by means of a directive (Joint Practical Guide of the European Parliament, the Council and the Commission 2003 (JPG), Guideline 18.7)

› examples of amending Directives by means of Regulations (Directive 80/217 introducing Community measures for the control of classical swine fever)

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Measures to implement CISE (cont.)

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› Amending legislation (P.O.3+)› an amending act must not contain new substantive provisions which are autonomous

in relation to the act being amended (JPG Guideline 18.4)

› omnibus act amending sectoral legislation: › example: European system of Financial Supervisors (ESFS) – framework of 3 Regulations

(establishing EU agencies) and 2 Omnibus Directives amending multiple sectoral Directives and based on the same legal basis as the Directives

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Opt-outs and opt-ins

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› require differentiated approach to rights and responsibilities, but do not constitute a barrier to the successful development of CISE as such

1. Title V TFEU (are of freedom security and justice: border control, asylum and immigration; judicial cooperation in civil matters, judicial cooperation in criminal matters and police cooperation)› Denmark, UK and Ireland

› UK and Ireland possibility to opt-in in individual measures (opted-in in most policing and criminal law measures), Denmark – possibility to opt-in to Title V after a referendum

› Denmark acceded to the Schengen acquis, UK and Ireland participate only partially (criminal law, policing irregular migration)

2. Common Foreign and Security Policy› Denmark

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Measures to Implement CISE (summary)

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user community

marine pollution

maritime safety

and security

customs fisheries control

general law

enforcement

border control

defence

legal basis TFEU TEU

legislative procedure

ordinary ordinary and special unaninimity

opt-outs no opt-outs opt-outs from TEU and TFEU

conducive environment

high medium low

current legislative framework

mixed instrument

s

primarily directives, but several regulations

primarily regulations council decisions*

primarily regulation

s

no legislation(Council

decisions)

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Questions and comments