28 March 2012
- "information and alerts regarding named individuals from other countries who may disrupt the holding of European Council meetings or other comparable international events... [can facilitate] targeted close checks on individuals believed to be intending to enter the country with the aim of disrupting public order and security at the event"
(Italian proposal, doc no 10965/03, emphasis added)
- "if implemented this proposal will legitimate the ongoing surveillance by the political police of any person or group who they think might go to a protest in another European country on a whole range of issues from racism to the environment, from globalisation to peace. Most people in Europe do not take part in protests, but those that do express a wider, and historic, concern over democracy and its future. Politicians may choose to ignore them but, in between elections, protests are one of the few ways that people can collectively express themselves"
Tony Bunyan, Statewatch editor
The incoming Italian Presidency of the Council of the European Union (the 15 EU governments) from 1 July 2003 moved swiftly to put forward proposals, on 30 June 2003, to counter protests (and football "hooliganism", see: National bans to become EU bans).
Since 2001 the Council of the European Union has been urging members states where European Summit meetings (the 15 EU prime ministers) and other international meetings (eg: G8) are being held to use their powers under the Schengen Convention to stop "troublemakers" entering the country. Article 2.2 of the Schengen Convention allows states, for a limited period, to introduce checks on those entering (by sea, land and air).
The location of EU Summits is about to change - it has always been the practice that they are held in the country holding the Presidency of the Council of the European Union (eg: in Thessaloniki for Greece, Rome for Italy) - now it is planned to hold the six-monthly Summits in Brussels (other meetings such as EU Intergovernmental Conferences (IGCs) and G8 meetings will still be held in the state holding the Presidency). This move increases the role of the Council's "units responsible for maintaining public order and security at such events".
One of the problems of using Article 2.2 says the Italian report, especially at land borders, is that wholesale checks on all those entering has "led to the border being blocked", that is, the "inconvenience" caused at some border crossings because of the "large-scale influx of travellers to be checked" many of whom are nothing to do with planned protests.
The main problem, according to the Italian Presidency, is the:
"Lack of specific information and of alerts regarding named troublemakers from another country"
The Italian Presidency has prepared a nine-point Resolution to tackle the issue. "Resolutions" are non-binding under EU law ("soft law") and any actions taken under them (whether by a few states or all EU states) are lawful. "Resolutions" are a convenient method of lawmaking for EU governments as national parliaments and the European parliament do not even have to be consulted.
Article 1 says that any member state applying Article 2.2 of Schengen shall take "every step to limit, as far as possible, the inconvenience caused by checks to travellers" and Article 2 says such states:
"have to give precedence to targeted close checks on individuals believed to be intending to enter the country with the aim of disrupting public order and security at the event"
Article 3 says that in order to make it:
"easier" for the host country to carry out targeted close checks on travellers, Member States shall supply that country with any information of relevance in identifying individuals with a record of having caused disturbances in similar circumstances"
and Article 4 adds that the above information supplied may:
"include names of individuals convicted of offences involving disruption of public order at demonstrations or other events" (emphasis added)
Article 8 appears to limit the time information can be held on a individual to the time of the event (a few days) but if the country supplying the data agrees it can be kept for a longer, unspecified, length of time. Article 9 allows for "liaison officers" from the states providing the intelligence data to be: "stationed by Member States at agreed individual border posts".
Comment: those to be targeted and subjected to close checks at borders are not limited to those in Article 4 who may have been convicted of "disruption of public order" (which as a category may embrace minor public order offences like peaceful sitting down in the road) but is principally defined in Article 3 where there is a loose concept of a "record" - which may not be a conviction but an "intelligence" record of observations and suspicions.
The intention is to refuse entry to protestors who the authorities think "may disrupt" meetings in Europe.
Public order "Security handbook
This proposal is just one of a number intended to combat protests. Of particular importance is the "Security handbook for the use of police authorities and services at international events such as meeting of the European Council" (12637/3/02, 12.11.03, full-text below). One of the basic principles, the handbook says, is to prevent:
"Interference from elements whose objectives or actions are of a violent or other forms of criminal nature"
Such a vague, yet all-embracing, purpose allows law enforcement agencies to apply highly subjective views on who and which groups present a "threat" - it is not a purpose based on targeting those who have been convicted of a criminal offence, but on those they suspect may be a problem.
Interestingly the handbook highlights the new role to be played by the General Secretariat of the Council (the Council of the European Union, representing the 15 EU governments in Brussels). Its Security Office ("GSC Security Office") will play a central role at future six monthly EU Summit meetings which will in future all be held in Brussels (an EU Summit with all 15 prime ministers is held at the end of each six-month Presidency of the Council).
The handbook says that the GSC Security Office is to act as an "adviser" on security, however, the text suggests it will have a wider role as:
"it should be allowed to avail itself, wherever possible, of the possibilities foreseen in this Security handbook"
It goes on to state the obvious: "the GSC Security Office is not a police force", rather the GSC Security Office will exercise a degree of operational control of security (it should be noted that the term "security" in this context refers to both a terrorist threat and public order).
The overall "tasks" of "national contact points" (national agencies acting as the EU-wide lead agency) include: the collection and analysis of information nationally, from other Member States, "third countries, relevant EU bodies and other sources of information" and provide a "risk analysis on potential demonstrators and other groupings". National agencies are obliged to forward information:
"including personal information"
in compliance with "national and international law" - but no terms are set out for individuals to see or correct this information nor are there limits on who information can be passed to, in fact the reverse applies: "After being processed, the collected information as appropriate should be distributed to relevant authorities and services (the EU has no data protection laws covering policing and intelligence).
The "organising member state" (where the event is to be held) has to gather information and intelligence "prior" to the event and during it, for example, on "persons suspected of having committed an offence". The other member states have to provide:
"a permanent risk analysis on known potential demonstrators and other groupings expected to travel to the event and deemed to pose a potential threat to the maintenance of public order"
The "risk analysis" (Annex A) requires national political police agencies to gather extensive intelligence on suspected "troublemakers". This includes details on a group's internal organisation, means of communication (eg: e-mail addresses, websites and bulletin boards), logos or flags carried, whether a group is violent or presents the "risk of disturbances", "links to other groups (national or international)", previous involvement in "relevant incidents", travel route, accommodation and length of stay.
During the event other member states have to provide liaison officers who are well-versed on "extremism and other relevant groupings" who, during the event can "spot known individuals and groups".
After the event other member states are expected to: "make every effort to identify and prosecute their own nationals". Meanwhile the organising member state is expected make plans for "a worst case scenario with larger quantities of perpetrators", use of "pre-trial detention" and have in place "speedy" special courts to "try a larger number of criminal cases".
Statewatch survey on the use of Article 2.2
Under Article 2 of the 1990 Convention implementing the Schengen Agreement, checks at the internal borders of the participating states were abolished. At present, all the EU member states except the UK and Ireland, plus Norway and Iceland, are party to the Schengen provisions on border controls. Paragraph 2 of Article 2 allows for internal border checks to be reintroduced:
“Where public policy or national security so require, however, a Contracting Party may, after consulting the other Contracting Parties, decide that for a limited period national border checks appropriate to the situation will be carried out at internal borders”.
Research by Statewatch, shows that the member states have invoked this exception at least 26 times over the past two years.
Although not all the declarations pursuant to Article 2(2) are available on the public register of Council documents, border checks have been introduced at least 16 times to counter demonstrations taking place at international summits. This policy does not just mean that identity checks take place during the limited periods, but that hundreds (and in some cases thousands) of people are refused entry to the member states to which they are travelling – a massive restriction of the EU’s four supposed fundamental freedoms (of movement). Spain has used Article 2(2) more than any other state. It prevented protestors joining demonstrations against the EU on four occasions during its presidency of the EU, as well preventing Spanish protestors travelling to the Biarritz summit during the French presidency. Spain also introduced specific border checks over the Christmas period when senior politicians were holidaying in the mountains.
The visit of foreign heads of state to the member states have also resulted in the reintroduction of border controls and Belgium, the first member state to invoke Article 2(2), closed its borders during a migrant regularisation programme.
During 2001, the EU announced that it would draw-up common rules on the use of Article 2(2). This is likely to be in the form of an EC Regulation based on Article 62(1) of the TEC. It remains to be seen whether the future measure will do anything to prevent the apparently arbitrary use of Article 2(2) and uphold supposed commitments to free movement – or whether it will continue to be used as a mechanism to curb another supposedly fundamental right: the right to protest.
A table containing all the available details regarding the use of Article 2(2). It will be updated and maintained on the SEMDOC website.
1. Draft Council Resolution on security at European Council meetings and other comparable events, 30 June 2003: 10965/03 (pdf)
2. Security handbook for the use of police authorities and services at international events such as meetings of the European Council: 12637/3/02 (pdf)
Coverage and analyses by Statewatch
1. Statewatch analysis: "The enemy within": Analysis no 5 (pdf)
2. Statewatch analysis: Analysis no 9 (pdf)
3. EU Presidency present draft Council Decision to target protestors as "terrorists": Report
4. EU plans to extend the Schengen Information System (SIS) to: i) create EU database to target "suspected" protestors and bar them from entering a country where a protest is planned; ii) create EU database of all "foreigners" to remove third country nationals who have not left within the "prescribed time frame": Special Statewatch report: The enemy within II (3.12.01)
5. See also Statewatch's Observatory on protests
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