FECL 42 (March 1996):
Once again, the JHA Council failed to reach agreement on the involvement of the ECJ. All member states apart from Britain believe that, in any dispute concerning Europol's activities, national courts should have the option of referring to the ECJ for a preliminary ruling.
At a press conference following the meeting, its president, the Italian Minister of Justice, Vicenzo Caianello suggested that Britain had announced it would "withdraw" its reservation regarding the ECJ "before the next session" of the Council in June. Other sources, however, insist that Michael Howard, the British Home Secretary (interior minister) only indicated that London was prepared to further examine a solution enabling the other 14 member states to confer competencies on the ECJ by a declaration attached to the Convention. This would amount to an "opt-in" clause for the 14, as opposed to an opt-out clause for Britain (This latter formula has already been rejected by London). Mr Howard, however, made it very clear to his colleagues, that Britain consider even such a compromise formula as "neither necessary or appropriate".
The Council agreed on draft financial regulations for Europol and draft rules on the rights and obligations of liaison officers. Both sets of rules will have to be adopted by Europol's Management Board, once the Convention enters into force.
An Italian draft for implementing rules regarding Europol's analysis registers was not on the agenda of the meeting, probably due to the controversy triggered by the disclosure of the confidential draft in a number of national parliaments and the European Parliament (see FECL No.41: "Rules for Europol's analysis files: incongruous new draft" and this issue: "European Parliament votes Resolution on Europol").
The Ministers further approved without debate the annual report 1995 on Europol/ EDU by its Coordinator Jürgen Storbeck. According to the report, information requests to EDU have increased from 595 in 1994 to 1,474 in 1995. These figures must, however, be considered against the fact, that EDU's remit was extended to additional forms of crime (illegal immigration, trafficking of stolen motor vehicles and of nuclear substances) in March 1995. According to Mr Storbeck, varying attitudes of national police authorities towards Europol and differences of national legislation are still causing great problems for the agency.
The question of the Convention's ratification by the parliaments of the member states does not appear to have been addressed by the JHA ministers. In a number of member states parliaments are unlikely to begin the ratification process without a prior agreement on the involvement of the ECJ. Other member states are already preparing the adaption of their national legislation to the Convention. According to Ms Anita Gradin, the EU Commissioner in charge of Justice and Home Affairs cooperation, Britain, the Netherlands, and Sweden have begun work on the Europol Convention ahead of sending it to parliament.
The Ministers reached political agreement on a "Joint Action" against racism and xenophobia. Britain had earlier advocated the adoption of a less binding "Resolution", but dropped its reservation after the other member states accepted a British declaration attached to the Joint Action, limiting its obligations under the text only to the prosecution of "dangerous, excessive or insulting" acts. With reference to their national law, Denmark and Greece also indicated that they would make restrictive use of the Joint Action.
As a matter of fact, while Joint Actions engage member states politically, they do not prevail over national law.
According to the Italian Presidency, Ministers also brought their views closer with respect to the planned Convention on Extradition. The experts working on the text were asked to draft wordings which would extend extradition to members of criminal organisations with connection to terrorist activities. The Ministers further defined a scheme by which the extradition of own nationals would become the rule under the Convention. Individual member states would, however be able to opt out for renewable periods of five years or to decide case by case. It remains to be seen whether this alleged agreement on some of the most controversial aspects of the planned Convention will be confirmed by its speedy signing before the end of June, or whether it in fact mirrors a political need for the JHA Ministers to demonstrate unity following a fierce row between Spain and Belgium earlier this year, in which the Belgian judiciary refused to extradite two Basques suspected of terrorism in Spain.
Sources: General Secretariat of the EU-Council: Communication à la Presse, 1909e session du Conseil Justice et Affaires Intérieures, Brussels, 19/20.3.96; Agence 'Europe' - Nos. 6691 (20.3.96) and (21.3.96); Financial Times, 20.3.96; Reuter, 29.1.96; Bericht de Bundesregierung über den Rat Justiz/Inneres am 19./20. März 96, sowie über die Perspektiven der Zusammenarbeit auf dem Gebiet der Rechtspolitik, German Federal Government, Bonn, 11.3.96.