FECL 35 (June 1995):
A day after the Summit, nervous journalists were seeking answers to many questions: Is Europol postponed? Has the adoption of the Convention been adjourned? Has a compromise been reached? Have the heads of states actually launched Europol? If so, why was the Convention not signed? Can parliaments ratify an incomplete convention?
None of these questions received straight answers at Cannes. Instead, spokesmen for the various member states resorted to verbal acrobatics aimed at making the European public believe that agreement had been reached on Europol, while carefully avoiding to mention that the Convention was actually not signed, as promised by the Essen Council, last December.
Confusion, deception and selfish opportunism are the terms that best characterise the behaviour of the leaders of the European Union in Cannes. This is illustrated by the following summary of press agency releases - all from Tuesday, 27 June.
02.48 h: DPA (the German Press Agency) announces the postponement of the Europol Convention by one year, due to British Prime Minister John Major's "incapacity" to accept any role for the ECJ.
02.56 h: AP (Associated Press) confirms the Europol failure but says that the governments are trying everything that would allow "to begin setting up Europol now".
Until ten o'clock, the news of the Europol failure is spread throughout Europe.
11:19 h: DPA says that the French Presidency is making another attempt to achieve "agreement" on Europol. The question of the ECJ shall be "left out" for the time being.
13.45 h: Reuters announces that "agreement on a compromise" has been reached. According to the Belgian Prime Minister, Jean-Luc Dehaene, "the Convention will be signed in the forthcoming months" and subsequently submitted to the national parliaments for ratification. The dispute about the jurisdiction of the ECJ will have to be solved within a year, according to Dehaene.
The Dutch parliament has prohibited the government from signing a Convention text not giving jurisdiction to the ECJ. Such a text would not be ratified by the parliament.
14.08 h: AFP reiterates the Dutch stand, but adds that, pending a solution to the problem with the ECJ until summer 1996, the heads of state want the ratification process to begin in the member states. A spokesman of the French government is quoted as speaking about a "provisional ratification", enabling an early start for Europol.
14.37 h: "Summit finally adopts Europol Convention", it says in the rubric of an AP release. Agreement was reached following concessions made by both the UK and the Benelux countries regarding the role of the ECJ.
15.24 h: According to AFP, the establishment of Europol is "uncertain". However, "the heads of states and governments formally approved [our emphasis] the Europol Convention... The future Euro-police will be able to start working as soon as the Convention has been ratified by all parliaments of the EU member states... The ratification process is to be concluded by the end of June 1996". The release quotes diplomats talking about a "theoretical possibility" of further expanding the EDU [the provisional Europol nucleus] pending the ratification of the Convention.
15.26 h: Reuters announces that the creation of Europol has been "further delayed". A decision was postponed because "John Major, fighting for his political survival, was unable to move". The Dutch Minister for Foreign Affairs recalls that his government will not proceed with ratification, as long as the dispute on the ECJ is not solved. The Committee on European Affairs of the German parliament says there will be no ratification without a role for the ECJ in the Convention.
15.41 h: AP quotes members of the German delegation as saying that the Convention will be submitted to the national parliaments "shortly" and "subsequently enter into force after the ratification of the Convention by the national parliaments [our emphasis]. With respect to the role of the ECJ, "the small countries [Benelux states] renounced their conditions, while the British came round by accepting the jurisdiction of the Luxembourg Court [ECJ] for disputes between single member states and Europol. The complaints of individual citizens shall in the future be considered by only the national courts. Individuals will not be able to petition the ECJ for a binding interpretation [of the Convention]".
17.04 h: AFP quotes a disillusioned Chancellor Helmut Kohl commenting on Prime Minister John Major: "What ever comes after him, whatever party - Europol will be put on the track in June 1996 at the Italian Summit, at the earliest".
Finally, in the official press release at the end of the Summit, the chiefs of government note "with satisfaction . . . that there is accord on the agreement concerning the creation of Europol", and they call on the Member States to do everything necessary for the speedy implementation of the Convention after ratification by the parliaments and its formal approval. This is followed by the intriguing sentence: "It was agreed that the question of possible jurisdiction for the European Court of Justice will be settled at the latest at the conference in June 1996".
A day after the Summit, EU Commissioner Anita Gradin's cabinet agrees on the following - provisional - interpretation of the Summit's Europol decision: The EU member states have begun the ratification process despite the fact that there is a big hole in the convention text. The hole is precisely over the judicial control and legal protection that was to be ensured by the ECJ. Ms Gradin says she is "not too happy" about these proceedings.
The Chief of EDU-Europol, Jürgen Storbeck, on the other hand, is "quite satisfied". He predicts that the Justice and Home Affairs ministers will sign the Convention within days, or by mid July at the latest, thus opening the way for ratification by the national parliaments.
This is confirmed on 29 June to a correspondent of the FECLby a source within the British House of Lords. The same source says that the Convention text to be signed does not contain an "opt-out" clause for Britain on the jurisdiction of the ECJ, as had been claimed in some press reports, but that there was speculation about settling the ECJ issue in a protocol to the Convention to be annexed after the ratification of the "rump" text of the Convention.
On 30 June, a source within the Dutch parliament tells the FECLthat this parliament is very unlikely to proceed with the ratification of the Convention, even if the information that the Dutch government has accepted a compromise on the ECJ issue should prove to be correct.
A German memorandum on a follow-up meeting of senior officials of the EU member states, on 29 June, after the closure of the Summit, speaks volumes about the reigning confusion and the uncertainty of an agreement on Europol. According to the document, the Summit has "politically adopted" three conventions [on Europol Convention, on the Customs Information System, and on the combat of fraud in the EU]. The provisions referring to the jurisdiction of the ECJ have simply been blocked. The follow-up meeting stresses that a formal decision on the conventions and their signing should be taken at a next meeting on 5 July, in view of the risk that the "fragile consensus" achieved at the Summit could otherwise crack. It is unclear at the follow-up meeting whether the question of jurisdiction will be settled until summer 1996 for all three conventions or merely for Europol. According to the German document, 13 member states have announced their intention to issue an annex declaration to the Convention whereby they would bind themselves to accept the jurisdiction of the ECJ in disputes between the member states [such an emergency solution was proposed by the Dutch Standing Committee as a last resort: see FECL No.33: "Dutch experts make proposals to amend Maastricht Treaty"]. The UK will not sign this declaration and the Greek representative at the meeting made reservations.
Everything indicates that the governments of the EU intend to go ahead with the ratification and subsequent implementation of an unfinished Convention. We would thus have a European police cooperation based on defective legislation. Legal experts at the European institutions privately admit that it would be invidious to ask the national parliaments to give their blessings to an unfinished law. Such a procedure would indeed constitute a disquieting novelty in the history of European democracies.
Apart from lacking supra-national jurisdiction over a supra-national police office, there are other dubious provisions in the draft Convention "approved" at the Summit. They were agreed by all member states already at the Justice and Home Affairs (JHA) Council in Luxembourg preceding the Cannes Summit, on 20-21 June. The JHA Council adopted both the French Presidency's proposals on the architecture of Europol's computerised data register and on access of individuals to their own data (French proposals: see FECL 33, p.6 and 8).
In Germany, the Data Protection Commissioner of Hamburg, Hans-Hermann Schrader, has once again stressed the danger of an "uncontrolled use of personal data" by Europol. In future, he said, perfectly innocent citizens might be stopped for police questioning in some foreign European country, merely because their data have been transmitted to Europol by the German criminal investigation authorities.
Indeed, according to the final version of the corresponding articles, even information about non-suspect acquaintances and fellow travellers, potential witnesses and "potential victims of future crimes" can be exchanged among member states. Even when the authorities of one member state have concluded an investigation, the others are free to continue and to store data they consider being of use.
The Hamburg Data Protection Commissioner also claims that the right of access of individuals to their own data is not guaranteed by the provisions adopted by the JHA Council.
Indeed, according to the present version of the Convention, not only Europol but also any member state involved in an investigation may refuse all information.
According to Article 19 of the final draft Convention text resulting from the Luxembourg JHA Council, individuals' right of access to their own data (direct access) or to require a check of these data (indirect access) is to be considered in accordance with the law of the Member State in which it the application for access has been made. If direct access is provided by the law of the Member State concerned, information is refused "if this is necessary"
On these catch-all grounds the communication to an applicant of his private data can be refused if one single member state concerned by this data communication requires this.
Data stored in Europol's own Analysis Registers (see FECL No.32: "Justice and Home Affairs Council in Brussels"; FECL No.33: "The 'architecure' of Europol's information system") will be provided to an applicant only upon a consensual decision of Europol and all member states participating in an analysis operation.
In all cases where, on the above grounds, the required data are not provided to the applicant, Europol will inform the applicant that checks have been carried out, without however indicating whether data concerning his person are stored or not.
Theoretically, such denial of information can be appealed against to a joint supervisory body or, in cases concerning only one member state, at the national supervisory body. But the procedure is such that the applicant is unlikely to obtain a reversal of the initial decision.
In view of all this, the heated ideological controversy between the member states in support of "direct access" (mainly Germany and the Netherlands) and those in support of "indirect access" (France and many others) seems fairly irrelevant. Citizens denied information on their own data for reasons such as "the proper performance of Europol's tasks" will probably not care very greatly about whether the access refused would have been "direct" or "indirect". But they might care about the fact that they will never have their case considered by a supra-national Court - the European Court of Justice, for example.
Commenting on the Summit's Europol "compromise", the president of the Green Group in the European parliament says: "Proceedings followed an all-too-usual pattern. Agreement on a draft in clandestine circles, withheld from the general public and - to a large extent - also from parliaments - thereby degrading the parliaments to bodies allowed only to nod through agreement. Public debate is obviously undesirable. With Europol a new agency will start work in The Hague which will be able to snoop on anyone. The demands of "internal security" will prevail over civil liberties. Europol will not reduce criminality in Europe. But with the creation of Europol we have taken a further step away from a democratic Europe".
Sources: Agency dispatches AFP, DPA, Reuters, AP, 27.6.95; Süddeutsche Zeitung, 29.6.95; Draft Convention on Europol, Brussels, 16.6.95, 7037/2/95 REV 2 (with the changes agreed at the JHA Council in Luxembourg, 20.6.95) in German; our sources in Britain, Germany, and the Netherlands. The quotations in this article are our translations from German.