Interview: Franco Frattini, the EU's justice balancing act

Franco Frattini must juggle rights against security amid the clamour for anti-terror and immigration crackdowns.

As commissioner tasked with upholding EU fundamental rights, the former Italian foreign minister must hold freedom in the balance of strident European security concerns.

But if there is a paradox, or even a conflict here, Frattini does not show it.

The 48-year old ski instructor and former lawyer sees no contradiction at all between a gamekeeper role as guardian of rights and his job as political intermediary for poachers in security conscious national capitals.

“I cannot see more security without more respect and more protection for individual rights,” he insists. It is about balance – a word heard a lot in EU justice circles.

Frattini is ready to take on illegal immigration and to simultaneously table proposals for legal migration.

He is ready to draft measures allowing security agencies to take and exchange personal data while setting out and guaranteeing the essentials of EU privacy.

A busy, and controversial, six months will lie ahead as Frattini performs his balancing act on key issues such as data retention, air passenger name records and immigration.

And, it could be a long way to fall from a high-wire portfolio strung between three poles: a rights-aware European Parliament, sometimes draconian demands from national governments and the EU courts.

On purely legislative terms, Frattini’s is a key policy area. European Commission President José Manuel Barroso’s 2005 work programme assigned 14 new acts of legislation to the areas of security, justice and immigration – an equal workload to economic, competition and research portfolios.

In a political arena contested by powerful governments keen to flaunt tough anti-terror, crime or immigrant credentials, Frattini must oversee 19 commission initiatives including seven framework decisions, two decisions, three directives and two regulations.

He seems unfazed and pointedly front-ended a May 10 five-year action plan with MEP friendly proposals: a move that may not be too surprising after the Rocco Buttiglione affair pushed rights-speak high on the commission’s agenda.

“I have set up fundamental rights, protection and promotion as the first point in the ten point priority index,” he said.

Key to establishing his credentials will be European Commission proposals for a Fundamental Rights Agency.

The EU is still haggling over the new body’s political turf and geographical scope.

But for Frattini the goal is a clear one. “There is only one strategy: to protect and to promote. We are discussing the geographical scope of the agency, but it is just an example. We are discussing the limit, and if I may say, we are discussing the political border between the Council of Europe and the commission, but it’s just an element within. There is only one point: promotion and protection.”

But Frattini’s justice and rights agenda faces an acid test in the weeks ahead. The former Rome state attorney and government legal advisor, before he entered politics in 1996, is in the middle of a fight between national capitals, the commission’s legal services and the parliament over data retention proposals.

Uncertainty surrounds demands from national governments to store electronic communication data and is creating legal headaches for EU officials.

In a bid to head off opposition – especially from MEPs – and end legal quibbling, Frattini is set to unveil compromise proposals as early as a June 2 council of Europe’s justice ministers.

“We are very close. We are very close to presenting a proposal. We are discussing within the commission and, in full agreement with Commissioner Reding, I will present, I think, in very few weeks,” he said.

France, the UK, Ireland and Sweden are pushing for EU legislation forcing telecom operators and internet service providers to store data for between one to three years.

Information, including mobile phone numbers, text messages, email addresses and voice over broadband, would then be available for access by EU law enforcement agencies.

But lawyers in the commission – and the parliament – have argued against the
proposals, citing the current absence of a legal basis in EU law.

Frattini will try and balance security demands with concerns from MEPs, privacy campaigners, the telecoms and internet industry with a rethink that centres on “an agreement on the substance”.

“I have some hopes that member states will understand that our proposal is correct as concerns the legal basis,” he says.

“There will be… a possible proposal on the substance by correcting the legal basis. That is my hope and my presentation will follow that line. That line is, ‘please agree on the substance rather than
continue in splitting on the legal basis’. It’s a compromise proposal, of course.”

The stakes are high, if national governments fail to back off, reconsider the legal basis or choose to freeze parliament out of the decision-making process, the EU could face a challenge in the European courts.

The commission has been here before on privacy and security issues. This September Frattini will be landed with a European Court of Justice ruling on EU air passenger data handovers to US security agencies – a legal challenge mounted by the last parliament against the last commission.

MEPs claim that the parliament was not properly consulted over a deal that is in breach of European privacy law.

If the judgment goes against Frattini he will have to annul the agreement, sparking a Trans-Atlantic security row, and reverse a commission ruling that the passenger name record (PNR) transfers were ‘adequate’ with EU law.

Frattini is ready for the judgement, poised to publish proposals clarifying the personal data/security dilemma and will remind Washington to respect EU rules.

“Now we are exploring at a technical level, a possible way for an agreed solution in view of reviewing the PNR agreement. Of course, we are waiting for the decision to be taken by the court and I expect the decision for September,” he said.

“My opinion is, anyway, that the US should understand that we must respect the Charter of Fundamental Human Rights, particularly regarding rules for processing personal data. I’m ready to present a paper and then I will present a proposal for protecting, under the third pillar, personal data and in full respect with those European rules I will negotiate with the US.”

Frattini’s proposals on privacy will be
settled at a December summit under the auspices of the UK EU presidency – a member state not known for a libertarian approach to security matters.

Discussions and proposals will take place in tandem with measures to boost exchange of personal data and criminal records among EU law enforcement agencies.

“My intention is to formally propose to the commission a communication on third pillar data protection in autumn in order to be able to submit the document to the Council by the end of this year, in parallel with a proposal for a law enforcement network under the UK presidency,” forecasts Frattini.

Other justice hot spots on immigration are set for commission announcements this summer.

Frattini will launch two pilot “Regional Protection Programmes” (RPP) for refugees in July.

The funding programme is the commission’s response to controversial, and shelved, UK proposals in 2003 for “Transit Processing Centres” to handle refugees before they became asylum seekers in the EU.

The idea, backed by Denmark and the Netherlands, collapsed amid concerns over human rights in countries outside the EU and questions over the likely role of the UNHCR.

The commission’s RPPs will focus funding on relief, rehabilitation and regional development in a bid to build capacity in countries which can host large numbers of Europe bound refugees.

RPPs will link support to measures such as providing protection for refugees, registration, cooperation on legal migration and agreement of returns of failed asylum seekers or illegal immigrants to countries outside the EU.

The UNHCR is expected to play a role and a key factor will be membership of international refugee agreements.

Frattini reveals that thinking on the locations of pilots is advanced.

“I’m talking about two regional pilot programmes with my colleague and friend Louis Michel and Benita Ferrero-Waldner as well. My idea is that the two best options could be the Great Lake region (Africa) and the eastern dimension of Europe,” he said.

“The Great Lakes region is probably the biggest origin area of illegal immigrants and the eastern dimension of Europe for example, Ukraine or Georgia or Belarus. We will try to start with two pilot programmes, the first one for Africa and the second one probably for Ukraine.”

Frattini plays down the “very sensitive issue” of directly linking EU development aid to political deals on immigration.

“My colleague, Louis Michel and I agree on the fact that there is not a juridical link between aid for development, a common strategy on security and the fight against illegal immigration, or more in general, on immigration. But, of course, we need to stimulate those countries which are in close relations with Europe regarding joint programmes, pilot programmes.”

“We need to stimulate those countries to agree on a common approach regarding immigration. It is not at all a “do ut des” (I give that you give) base, but it is a common framework of partnership. In this framework, I may include a common strategy on immigration and one hand and better conditions for development on the other hand.”

Again on immigration, for Frattini, the question is one of balance. And he is proud that the commission is to go beyond crackdowns on illegals to proposals that may crack open Europe’s door to legal migration.

“We need, simply, more Europe. And that means to address both legal and illegal immigration. By the end of this year I will present a proposal and that will be the first time that Europe will have on the same table two proposals, the first proposal on addressing illegal immigration and the second on addressing legal immigration.”

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