EU Policy Priorities 2013: Fundamental Rights

EU 2013 Policy Priorities Fundamental rights

Fundamental Rights of the European Union, adopted at EU level in 2000. The provisions of the Charter must be respected by the EU institutions and by the Member States when they implement EU law. Both EU and third country nationals are protected by its provisions.

This report outlines the main policy proposals the EU institutions will be putting forward in the field of fundamental rights, including migration, data protection and gender equality.

The report offers an overview of the stand points of the European Greens on these specific policies, and points to the national contexts where these policies are likely to stir most discussions.

This report is researched and drafted by Jonas Hirschnitz. It is current as of March 12, 2013.

Overview Relevant Commissioners: Cecilia Malmström (Home Affairs, Sweden) and Viviane Reding (Justice, Fundamental Rights & Citizenship, Luxembourg) Relevant Committees: Civil Liberties, Justice and Home Affairs (LIBE), Legal Affairs (JURI), Women’s Rights and Gender Equality (FEMM) Main Greens/EFA Parliament:

Group actors in the

European

LIBE: Judith Sargentini (Coordinator, Netherlands), Jan Philipp Albrecht (Germany), Hélène Flautre (France), Rui Tavares (Portugal), Ska Keller (Germany), Jean Lambert (UK), Ulrike Lunacek (Austria), Raül Romeva i Rueda (Spain), Carl Schlyter (Sweden) JURI: Christian Engstroem (Sweden, Pirate Party), Gerald Häfner (Germany), Jan Philipp Albrecht (Germany), Eva Lichtenberger (Austria) FEMM: Marije Cornelissen (Coordinator, Netherlands), Raül Romeva i Rueda (Spain), Ulrike Lunacek (Austria), Franziska Brantner (Germany), Nicole KiilNielsen (France), Ana Miranda (EFA, Spain)

In European legislation, fundamental rights are most often dealt with in the context of establishing an Area of Freedom, Security and Justice (AFSJ). This programme comprises different topics, ranging from migration, asylum and border controls, to police and judicial cooperation, gender equality and data protection. For the period 2010 - 2014, the EU priorities in these areas are set in the Stockholm Programme. The programme touches upon issues like the protection of fundamental rights, cooperation in the field justice, security strategies on issues ranging from human trafficking to cyber crimes, managing EU’s external borders, immigration policy etc. This very wide approach in dealing with fundamental rights received a lot of criticism - the programme deals at the same time with migration and with fighting terrorism and organised crime, which in a shortcut can lead to the stigmatisation of migrants. The European Greens share this criticism to the creation of an area of freedom, security and justice. They suggest focusing on the creation of a true area of fundamental rights.

In order to guarantee this, the Greens defend a closer monitoring of individual Member States’ track records in the area of fundamental rights protection. The EU only monitors candidate countries for their compliance with the Copenhagen criteria1, and this monitoring is ended once a state has entered the Union. The Greens call for ending this double standardisation and demand a monitoring mechanism for Member States. A first step in this sense, welcomed by the Greens, was reached when the Parliament’s LIBE committee commissioned a report on the situation in Hungary to investigate whether recent legislative developments endangered fundamental rights.

In this given general political context, several individual initiatives will be discussed throughout 2013. This report focuses on the Green priorities in the area, highlighting initiatives concerning women rights (including the right to equal treatment), the rights of migrants and asylum seekers, and ownership rights in the context of the data protection and intellectual property rights debate.

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The fundamental rights of EU citizens, migrants and asylum seekers are carved in the Charter of

Excerpt: ‘Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities […]’

EU 2013 Policy Priorities: Fundamental rights

Read below about the relevant initiatives and the respective Green positions.

1. Personal data protection In an age of global interconnectedness, citizens expose their personal data every day without being informed about the consequences. Often, this entails that personal data are sold to third parties without any legal obligation to acquire the consent of the consumer, whose legal EUwide protection is still based on a twelve year-old Directive that does not respond to current concerns.

Responding to this need, the Commission introduced a proposal that foresees a real strengthening of the European consumers’ rights, that lays down the fundamental rights and freedoms of natural persons with regards to the protection and circulation of their data.

The proposal will strengthen citizens’ information rights regarding which of their data is stored by a specific enterprise and in which cases the consumers’ consent is needed for data storage. The proposal further introduces the consumers’ right to have their data deleted – the ‘right to be forgotten’.

In the legislative process, the Commission’s proposal is currently under scrutiny by the LIBE committee in the European Parliament, where Green MEP Jan Philipp Albrecht (Germany) is the rapporteur. His latest draft report is currently subject to amendments.

The legislation is of great interest for the business sector that argues that stronger regulation on data protection makes their operation more difficult and can even destroy certain activities (e.g. analysis of client data for profiling used among others in targeted advertising).

Business lobbies maintain that this is a wrong approach in times of crisis, when every job is important.

National considerations Many countries fear that stronger data protection regulations will render their economies less attractive for companies, which use personal data trading as source of revenue. A potential example could be Ireland, which houses 8 of the top 10 global ICT companies.

Germany, Austria and France, where a lot of advertising and other print media have their seat, are also likely to oppose a strong regulation.

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Moreover, both the application of the right to be forgotten, and the extent of sanctions for non-compliance are still heavily debated. Most Member States are against setting concrete ranges for fines at the European level, which they argue should be determined nationally.

Green Response The Greens are strong advocates of data protection as a consumer right. In a video message, MEPs Albrecht and Eva Lichtenberger stress that consumers should have full control over their data, being able to withdraw their consent to data provision and use. The ‘right to be forgotten’ is one of the key priorities of the Greens.

Greens also insist that transferring personal data from one enterprise to another should not be allowed without the consumer’s consent. In case an enterprise violates the sovereignty of consumers over their data, effective and easily accessible procedures should be available for consumers to defend their rights, and clearly defined penalties should be applied to the respective enterprise.

The Greens do not agree with the business concern that stronger data protection regulation hampers business activity and eventually economic growth. Albrecht points out that, on the contrary, the regulation would contribute to creating a “level playing field” for citizens and businesses, a “single market for trust and innovation”.

2. Data Protection of Third Country Migrants In 2000, the Eurodac system - a fingerprint database for asylum seekers and for immigrants - was implemented in the EU. The system is meant to help determine whether an asylum applicant or a foreign national illegally found within the EU has previously claimed asylum in another EU country or whether an asylum applicant entered the Union’s territory unlawfully.

Fingerprints are taken from third-country entrants to the EU, which are stored in national immigration authorities’ systems and in a central unit within the European Commission.

In May 2012 the European Commission issued an amended proposal2 for an update to the Eurodac rules.

This proposal would lead to using Eurodac in the fight against terrorism and serious crimes, by making the fingerprint database accessible to national police 2

The legislative process is already underway since 2008.

EU 2013 Policy Priorities: Fundamental rights

authorities and to the Europol. The Civil Liberties Committee in the European Parliament gave its consent to the latest initiative, including some amendments.

Under the amended text, asylum seekers are informed that their fingerprints could also be used for law enforcement purposes. The fingerprints are only used in cases of terrorist offences or other serious criminal offences where "there is an overriding public security concern which makes proportionate the querying of the database". Additionally, in the first place fingerprints are accessed without their corresponding personal data.

Personal data can only be requested should fingerprints match those of a crime scene. This legislative file is currently in the stage of negotiations between the Parliament and the Council. The shadow rapporteur for the Greens is MEP Jan Philipp Albrecht.

Green Response The Greens have criticised the EU for its approach based on the assumption that asylum seekers are potential criminals. The initiative stigmatises migrants, as European citizens do not have to register their fingerprints, whereas asylum seekers would be obliged to do so. As Green migration and civil liberties spokesperson Ska Keller points out, Eurodac was established to facilitate the administrative process of asylum applications. Adopting the Commission’s proposal would throw basic rights of asylum seekers out of the window.

Unfortunately, the Greens were unable to defend their position in the LIBE committee. Only the stricter criteria on when data can be used can be seen as partial success of the Greens.

3. Smart Borders Third country citizens entering the EU today have the right to remain inside the EU for periods of three months every six months provided they have a Visa. Their entry, as well as their exit is checked by conventional stamps in their passport. For a more efficient monitoring of crossborder mobility, the “smart borders” initiative was announced, meant to collect information on people entering the EU electronically. It is intended to facilitate the control of illegal immigrants and of those who stay longer than their visa permits (overstayers).

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On February 28th 2013, the European Commission proposed a 'smart border package' to speed-up, facilitate and reinforce border check procedures for foreigners travelling to the EU. The package consists of two regulations: >

A Registered Traveller Programme to allow certain groups of frequent travellers from third countries to enter the EU using simplified border checks.

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An Entry/Exit System to record the time and place of entry and exit of third country nationals travelling to the EU. The system will calculate the length of the authorised short stay in an electronic way, replacing the current manual system, and issue an alert to national authorities when there is no exit record by the expiry time. In this way, the system will also be of assistance in addressing the issue of people overstaying their short term visa.

The proposal foresees that biometric data (including fingerprints) will be collected and stored from all third country citizens entering the EU. Law enforcement authorities would have access to the collected data.

Green response: The Greens view the current EU policy of strong surveillance and control on its borders highly sceptical.

For the Greens, border policy has to take the Union’s Fundamental Rights obligations as minimum standards.

Commenting on the Commission’s proposal, Green MEP Ska Keller pointed out that “the initiative is anything but ‘smart’ and would create a Big Brother 2.0 at Europe’s borders”.

The Greens are highly critical of the current proposal as it would effectively treat all non-EU travellers as potential criminals. The proposals are intrusive, as they would compromise the data protection rights of travellers. The measures are considered exaggerated, since go far beyond what the Commission requires to ensure its aim of verifying who has overstayed their permit to stay in the EU. Furthermore, the Greens argue that spending hundreds of millions of Euros on new border control and passenger data analysis technologies makes no sense at a time of budgetary cutbacks across Europe.

EU 2013 Policy Priorities: Fundamental rights

4. Copyright Collectives Copyright collectives are conglomerates engaged in the management of copyrights. Examples of this are music or films, where the producer or artist has conceded the individual right to distribute his/her work. Usually, the producer and the copyright collective enter into an agreement, in which the distributer receives a certain share of the royalties he collects for the producer, or compensates the producer by a fixed amount to market his work.

In the EU, the rules guiding the conduct of such collective copyright management bodies are highly fragmented, depending on national legislation. In July 2012, the European Commission proposed a Directive (currently discussed in the European Parliament) which envisages introducing common European rules for the efficiency, accuracy, transparency and accountability of copyright collectives in musical works for online uses. The directive foresees a trans-European regulation facilitating multiterritorial licensing (common rules for all creative licensors throughout the EU), which should enhance the revenue possibilities for both artists and distributors.

Green response There is an urgent need to reform copyright collectives to be made accountable to members and become more transparent in their operations. The current legislation is not fully adapted to the digital age. An example is that authors, in order to be published for the first time, had to enter into an agreement to transfer all copyrights of future works to a specific copyright collective.

The Greens have been taking this topic seriously for years (see position paper of 2011), pointing to the priority of artists and creators receiving proper recognition and remuneration for their work. The distinction between commercial and non-commercial use of copyright material is also important – artists should be remunerated only in case financial benefit occurs from the exploitation of copyrighted works. Non-commercial sharing between individuals should be legal. Green shadow rapporteur Christian Engstrom is following the dossier.

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5. Gender equality (quota) Within the EU only 13.9% of the executives of the large listed companies are women and only 3% of these companies have female chairs. At the same time, throughout the EU more women graduate from universities than men, and their share in business, law and management faculties is higher.

Addressing this situation, the European Parliament has adopted a resolution in March 2012 in which it calls among others for the introduction of a women quota on company boards, supposed to progressively increase to 40% by 2020. Commissioner Viviane Reding has taken up the Parliament’s position and introduced in autumn 2012 an initiative on gender equality including the 40% goal, which was – after heated discussions - accepted by the college of commissioners in November 2012. The goal of 40% women on company boards is to be reached until 2020 (2018 for public undertakings), yet it only addresses companies with more than 250 employees and an annual worldwide turnover exceeding €50million3.

Member States will be free to introduce more farreaching proposals, and have the responsibility to sanction enterprises which to not comply with the provisions of the proposal. The Directive is a temporary measure set to expire in 2028.

National Considerations The legislation is currently awaiting parliament’s first reading in the co-decision procedure between the European Parliament and Council. It is to be expected that the Parliament will adopt a constructive stance on the proposal, while the climate in the Council is very mixed and sceptical.

It is expected that there will be a blocking minority opposing the Directive in the Council, comprising at least Germany and eight other Member States: Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, the Netherlands and the United Kingdom. The latter eight, wrote a letter to Commission president Barroso and Commissioner Reding in autumn 2012, expressing that the promotion of women on the labour market is a national competence and that more time was needed to assess the workability and effectiveness of the 3

As a regulation of smaller enterprises would not justify a European scope anymore with respect to the ‘subsidiarity’ criterion.

EU 2013 Policy Priorities: Fundamental rights

initiative. The UK and the Netherlands even applied the yellow card procedure, a warning to the Commission that they see the principle of subsidiarity infringed.

Green Response The Greens are committed to the fight for equal treatment and the abolition of barriers to women’s possibilities in the labour market and support measures such as gender quotas used to this end. They therefore welcomed the proposal and Commissioner Reding’s persistence. The Greens have written to Commission president Barroso and Commissioner Reding urging the Commission to put forward a strong legislation, with binding quoatas for Member States. Reacting to the Commission’s proposal, the Greens called for clear sanctions for enterprises not complying with the guidelines.

6. Gender equality (parental leave) On the European level, common guidelines exist for both maternal leave (women’s right to paid leave for work in direct relation to child delivery) and parental leave (parents’ right for paid leave for the first period of a child’s life). However, the 2010 framework on parental leave merely prescribes general guidelines for an adequate parental leave regulation. It includes the right to parental leave, meaning that both mothers and fathers have the right to four months of consecutive parental leave. On top of this, upon their return to work the Directive contains a provision which urges employers to negotiate flexible working hours with parents upon their request. This applies also to adoptions, and Member States are encouraged to introduce more far-reaching measures.

The framework is however not legally binding and thus parental leave legislation is highly fragmented among the Member States, most of which poorly implement the framework’s standards. The most common example is that many Member States only allow for maternity leave, neglecting parental leave for fathers.

The situation is different concerning maternity leave in direct relation to delivery: European legislation, which currently includes a maternity leave provision for a minimum of 14 weeks, has been on revision since 2008 with a Commission proposal for modifying the pregnant

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workers Directive4. In October 2010, the European Parliament adopted its first reading position, calling for an extension of maternity leave to up to 20 weeks, and including a provision to guarantee a minimum of 2 weeks parental leave for fathers.

The Parliament’s position calls for a continuation of 100% salary payments to mothers and fathers during parental leave. The existent Directive does not make any reference to the amount or percentage of the original salary, which has to be paid when a parent takes leave.

Since 2010 the proposal is stuck in the legislative process, as there is a blocking position in the Council.

National Considerations In the Council, an eight country consortium comprising Germany, the United Kingdom, the Czech Republic, Denmark, Estonia, the Netherlands, Slovakia and Sweden formed a blocking position from the beginning. As EurActiv points out, these states are concerned about the adoption of maximum rather than minimum EU standards and about the lack of flexibility in accommodating the various maternity leave systems throughout the EU. In the current context of the European crisis another point of concern was raised – the financing of such schemes. Every additional week of a parent being out of work yet receiving full salary, brings extra costs for companies which have an effect on the EU’s appeal as a business location, according to this position. The unfeasibility of increasing social spending in times of strained public budgets is also often voiced. Under the circumstances, it is not likely that the block in the Council will be resolved soon, unless the Commission puts forward an amended proposal.

Green Response The Greens were not able to defend their original demand for a 24 week maternity leave – a standard which is also recommended by the World Health Organization (WHO) – but successfully introduced the provision for two weeks paid paternity leave. Furthermore, the original Commission proposal of 18 weeks was raised to 20 weeks.

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Also referred to as the maternity leave directive.

EU 2013 Policy Priorities: Fundamental rights

The Green vision however goes much beyond the existing legislative proposal: for many years they’ve been calling on the Commission to come forward with new legislative proposals for different types of leave (paternity, adoption, or care leave). The Greens in the European Parliament asked for such a proposal to include provisions on how to reconcile family and professional life.

What’s missing?

Integration of Roma In 2011, following deportations of EU citizens of Roma ethnicity from France and Italy, the Commission issued its Framework for National Roma Integration Strategies up to 2020. This framework falls however short of the Green call for a comprehensive EU strategy to improve the social integration of the Roma. Rebecca Harms, CoPresident of the Greens/EFA group criticises the framework for lacking specific targets and not being legally binding for Member States. Under the new framework, deportations still continue and the Commission is not initiating legal action against the Member States concerned.

The European framework foresaw the setting up of national strategies within one year. The Commission evaluated the Member States’ progress rather critically in its first assessment report. Green MEP Raul Romeva i Rueda argues that impunity for non-action against discrimination is an unacceptable state of play.

Investments in inclusion, education, and work programmes for Roma people are needed and the crisis cannot serve as an excuse against these crucial investments. In this context, the Greens argue for a legally binding framework for Roma integration.

Net neutrality in the EU Greens argue that net neutrality (Internet is neutral and freely accessible to all) as a principle should be enshrined in European legislation. This demand results from recent abusive practices of internet service providers like locking and throttling off (locking content when copyrights are infringed), excessive pricing for Voice over IP (VoIP) and file sharing, as well as anticompetitive behaviour and excessive degradation of quality. A reference to net neutrality in EU legislation would further prevent those entities to block, discriminate against, impair or degrade the ability of any person to use a service to access, use, post, receive or offer any content, application or service of their choice,

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irrespective of source or target5. By now, there have already been three calls by the EP for the Commission to bring forward a legislative proposal to this end, however all requests have been so far left unanswered.

Also within Member States, the debate is not moving ahead. The failure of the German Enquiry Commission to come up with a policy recommendation for the German Bundestag on net neutrality is an excellent example. Only the Netherlands have adopted a legislative act yet.

Fighting Violence against Women In Europe, 45% of women have suffered from some form of violence and every fifth woman is estimated to have been subjected to domestic violence. In May 2011, the Council of Europe issued the Convention Preventing and Combating Violence against Women and Domestic Violence. To enter into force, it needs at least 10 signatures, of which 8 from states that are Members of the Council of Europe. Of all EU Member States, only Portugal ratified the Convention.

The European Green Party (EGP) adopted in November 2011 a resolution calling for a prompt ratification of the Convention by all EU Member States and the EU itself.

The Greens further urge the Commission to come up with a new comprehensive policy approach, including a criminal law instrument.

Gender Pay Gap Current European legislation on equal pay between men and women dates back to 1975. However, the gender pay gap in Europe has not closed since and today women are still paid on average 16,4% less than men. For many years, Greens have been advocating to effectively tackle this situation by progressive European legislation, including sanctions for enterprises not adhering to EU standards.

The Greens’ effort led to the adoption of an own-initiative report in the European Parliament in May 2012. This resolution calls upon the Commission to review Directive 2006/54/EC until 15 February 2013 respecting a range of proposed amendments that concern the introduction of continuous European-wide analyses, and the requirement that pay should only be based on qualifications, interpersonal skills and responsibility. The most far-reaching amendment is the call for an efficient 5

Reference to those violations of consumers’ rights has been made in the latest parliamentary resolution on open internet and net neutrality in Europe in November 2011.

EU 2013 Policy Priorities: Fundamental rights

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legal monitoring and for the sanctioning non-compliant actors. It remains to be seen whether the Commission will pick up on the Parliament’s request.

For more information >

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DG Justice: http://ec.europa.eu/justice/fundamentalrights/index_en.htm EU Agency for Fundamental http://fra.europa.eu/en

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The Internet Core Group of the Greens/EFA Group: http://icg.greens-efa.eu/

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Outcomes of a Greens/EFA hearing on copyright collectives: http://www.greens-efa.eu/collectiverights-management-reform-7796.html

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"Borderline" study (commissioned by MEP Ska Keller) on the EU’s new border surveillance initiatives

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"Smash borders" campaign by MEPs Ska Keller and Jan Philipp Albrecht: http://www.smashborders.eu/en/

Rights:

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The Greens/EFA Group: http://www.greensefa.eu/rights-and-freedoms-11.html

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Greens/EFA “Get Women on Board” campaign: http://get-women-on-board.eu/

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The Green New Deal website developed and promoted by GEF for the Greens/EFA group, and uniting materials from GEF, the Greens/EFA Group and the EGP, has a section on “reducing inequality”, including publications and best practices on fundamental rights questions: http://greennewdeal.eu/reducinginequality.html

This text is the result of an original research carried out by Jonas Hirschnitz for the Green European Foundation. A big thank you to Georgia Tsaklanganos, Greens/EFA advisor on Civil Liberties, Justice and Home Affairs and Elisabeth Horstkötter, Greens/EFA advisor on Women’s Rights and Gender Equality for their extensive advice. © Green European Foundation, March 2013 The views expressed in this article are those of the authors’ alone.

They do not necessarily reflect the views of the Green European Foundation.

With support of the European Parliament.

Green European Foundation asbl 1, rue du Fort Elisabeth 1463 Luxembourg Brussels Office: 15 rue d’Arlon, 1050 Brussels, Belgium Phone: +32 2 234 65 70 - Fax: +32 2 234 65 79 E - mail: info@gef.eu - Web: www.gef.eu