Luisa Marin

The External Dimension of the EU’s Area of Freedom, Security and Justice

This chapter examines the emergence of the external dimension of the Area of Freedom, Security and Justice.

Is Europe Turning into a ‘Technological Fortress’? Innovation and Technology for the Management of Eu's External Borders. Reflections on Frontex and Eurosur

The chapter explores the policy of border surveillance and its latest innovations, aiming at building an high-tech fortress, quasi-militarized, around Europe.

The European Arrest Warrant in the Italian Republic

Italian veto in the EU Council reversed by Berlusconi – Italian Parliament: lack of trust in other European Union member states – Italian implementing Act: in between the Framework Decision and the Italian legal order – Case-law of the Corte Cassazione: interpretations in conformity with the Framework Decision and with the Italian constitutional order – Some reflections on consistent interpretation, the relationship between the legislature and the judiciary, and two very recent decisions of the Corte Costituzionale

The Role of Law in Managing the Tension between Risk and Innovation : Introduction to the Special Issue on Regulating New and Emerging Technologies

Technological innovations are crucial drivers of economic, social, and environmental progress. While innovations lead the evolution of our societies and permeate all domains of human life, they also pose significant risks both to humans and the environment. Law and regulation are expected to enable innovation, while at the same time protecting society from unintended consequences. However, assessing new technological risks confronts deep uncertainty and limited knowledge. In contrast to simple risks (e.g. car accidents), technological risks (such as risks stemming from new health technologies, nanotechnology, biotechnology, or robotics as discussed in this special issue) cannot be calculated according to traditional technocratic models, namely as a statistically foreseeable function of probability and effects. It is widely recognised that regulating new and emerging technologies is challenging for law due to problems of uncertainty and limited knowledge in the assessment and management of technological risks. To address this challenge it is crucial to study the ways in which law and regulation can successfully respond and adapt to technological progress.

Effective and Legitimate? Learning from the Lessons of 10 Years of Practice with the European Arrest Warrant

The article examines the European Arrest Warrant (EAW) and the issues which have emerged in its first 10 years of practice. After a first section explaining the choice for the principle of mutual recognition as expression of effectiveness and subsidiarity in judicial cooperation in criminal matters, the articles discusses questions such as (ab)uses of the EAW as a mutual legal assistance instrument, the question of petty crimes and the proportionality test, the relation between mutual trust, fundamental rights and judicial review, and, lastly, nationality and residence clauses. It concludes on the importance of addressing these issues in the appropriate legal setting, be it legislative or judicial, with the aim of strengthening the effectiveness and legitimacy of the EAW.

Deploying drones in policing European borders: constraints and challenges for data protection and human rights

The chapter explores the challenges underlying the policy choice of deploying dronetechnology in the area of border surveillance, with specific reference to the surveillance of European Union (EU) Member States’ external southern borders. Border surveillance is one of the top priorities of the Member States of the EU for several reasons: the first is the management of, or rectius, the fight against irregular migration, and cross-border crime. Within this context, public agencies (at both the national and the European level) are investing important resources in deploying the most up-to-date technologies, in an attempt to stop undesired migrants. The deployment of drones for border policing purposes is already a reality in the US, and also in some EU Member States. Frontex has also devoted attention and resources to exploring the possibility of deploying drones in border surveillance, as they are seen as beneficial assets in the perspective of EUROSUR. The aim of this chapter is to explore the recent developments constituted by the deployment of drone technology in border surveillance. The chapter firstly introduces the actors, policies and practices in the sphere of border management, specifically in the area of border surveillance (2); then it discusses the use of drone technology for border surveillance, looking at its potentialities but also at its current shortcomings (3); it will then move toward the regulatory framework enabling the safe deployment of drones under aviation law and on border surveillance (4) and present the constraints represented by fundamental rights and data protection rules on drone technology and the challenges drones represent for the human rights of migrants (5), before concluding that drone technology might entail a further securitization of border surveillance, together with a shift toward preventive border surveillance

Protecting the EU’s Borders from … Fundamental Rights? Squaring the Circle Between Frontex’s Border Surveillance and Human Rights

The phenomenon by which people are dying while attempting to cross the Mediterranean constitutes one of the humanitarian emergencies of our times. Even more strikingly, this continues to happen at a time when the European Union and its member states (MSs) are policing the Union’s external borders more intensively than ever before. This chapter examines the EU’s border surveillance and investigates Frontex’s actions in order to assess Frontex’s compliance with the EU’s constitutional commitment to respecting and enforcing fundamental rights. Border surveillance is a crucial part of the EU’s strategy for integrated border management. The aim is to combat irregular migration and cross-border crime, which in the EU policy debate are framed as internal security issues. In this research, I examine and investigate Frontex’s most controversial (Hera and Nautilus) and recent (RABIT 2010 and Poseidon in the Evros region) operations on Europe’s southern and south-eastern borders. These operations have been criticised on grounds of legality and respect for human rights. Decision 2010/252/EU supplementing the Schengen Borders Code (SBC) was meant to provide a solution to at least some of the problems that emerged in the first years of Frontex’s operations, but it was annulled by the EU Court of Justice. After explaining those aspects of the EU’s legal framework for fundamental rights that are relevant to Frontex, I suggest that the Hirsi judgment by the European Court of Human Rights (ECtHR), which condemned the Italian push-back policy of 2009, indirectly places boundaries on practices such as those which Frontex used in Hera. Having assessed Frontex’s adoption of a fundamental rights policy, I make some recommendations for improving Frontex’s commitment to fundamental rights, thus squaring the circle between border surveillance and individuals’ human rights

The Humanitarian Drone and the Borders: Unveiling the Rationales Underlying the Deployment of Drones in Border Surveillance

In these days economic and political pressures push for the deployment of drones’ technology in civil and commercial domains. This chapter focuses in particular on the deployment of drones in the context of border surveillance. Border surveillance is a shared competence between the European Union, through its dedicated agency Frontex, and the Member States. The aim of the chapter is to challenge the humanitarian rationale presented to defend the choice of deploying drones in this ambit and to assess whether this humanitarian rationale is embedded into a legal framework, policy and practice oriented toward the protection of the human lives and the activation of search and rescue (S.A.R.) responsibilities of the relevant actors. The key research question is whether the deployment of drones will make Fortress Europe more human, whether it is geared at saving human lives or whether it is aimed at strengthening the intelligence dimension of border surveillance. In order to answer the research questions, the chapter will, first, present the emergence of the civilian drone, and second, will embed the chapter into a theoretical framework, placing border surveillance within the context of securitization, with the technological turn it has acquired in the last years. The chapter will then focus on the EUROSUR Regulation and its enforcement, aiming at achieving a total surveillance of the borders of the Union, through the so-called 24/7 blue-green situational awareness. It will then discuss the EU and Member States Search and Rescue obligations, also in light of recent problematic cases, before focusing on a case of deployment of drones in border surveillance, in Mare Nostrum. All in all, the last developments, in the practice and the legal infrastructure, point to increasing the surveillance capacities of the EU, namely of its dedicated agency Frontex, by further developing its intelligence capacity, through new means and technological tools.

The Fate of the Data Retention Directive: About Mass Surveillance and Fundamental Rights in the EU Legal Order

The chapter explores the fate of the Data Retention Directive, the Digital Rights Ireland case and its implications for mass surveillance and data protection. After the Introduction, setting the issue within the context of Snowden’s revelations, the chapter presents the Data Retention Directive and the domestic resistance it has met; it then moves to highlight the judgment, its reasoning and motivations. The chapter discusses the judgment’s implications both in the perspective of national data retention legislation and in the European perspective: by outlawing generalized mass surveillance the Digital Rights Ireland judgment sets benchmarks having consequences also for other European instruments, from the PNR to the Safe Harbour Scheme (recently invalidated by the Schrems judgment), indicating that the judgment is therefore displaying some extraterritorial consequences. The chapter concludes reflecting on the judgment in the perspective of Kadi, reading it as the Court of Justice’s contribution on European counter-terrorism policies and ‘state of exception’.

The European Arrest Warrant and Domestic Legal Orders - Tensions between Mutual Recognition and Fundamental Rights: The Italian Case

This article presents and discusses some recent decisions on the European Arrest Warrant by the Italian higher courts, the Constitutional Court and the Court of Cassation. Though not as challenging to the EAW as the ‘first round’ of European judgments of 2005, they bring however some interesting developments on aspects concerning the enforcement of EAW and domestic provisions related to fundamental rights protection. Secondly, these cases allow analysis of mutual recognition, the principle underlying the whole EAW system. A first element stressed here is the importance of dialogue among European actors on third pillar instruments and more generally subjects involving criminal law and justice administration. Secondly, it is suggested here that there are several views on the EAW and mutual recognition. Analysis of Italian case law reveals that domestic courts are faced with the issue of enforcing EAW and securing fundamental rights protection; in so doing, they remain anchored in the domestic system of legal guarantees, which could lead to divergent solutions across European states. The suggestion made is that mutual recognition requires an active role to be played by courts, that it has systemic implications, and that it requires domestic courts to be able to exercise some political discretion, not so different as under extradition schemes.