FECL 44 (June 1996):

BRITAIN'S MAD COWS BLOCKED JUSTICE AND HOME AFFAIRS COUNCIL

The controversy between Britain and the EU on the BSE disease virtually blocked formal decision-making at the JHA Council's meeting of 4-5 June in Luxembourg. The decisions of the Council require unanimity. British Home Affairs Minister Michael Howard refused to vote any of the A-points on the Council's agenda. Nonetheless, informally, the member states, including the UK, seem to have reached political agreement on a number of issues, among them the Draft Convention on Extradition.

 

Free movement of persons

The Ministers discussed three Commission proposals for Directives on the control of persons at external borders, free movement of workers and their families, and the right for third country nationals to travel freely within the territory of the EU. Several member states (i.e. not only the UK) stressed that the Commission proposals affect important questions of immigration and internal security. The JHA Ministers seem to agree that these aspects, as well as certain additional measures necessary for the abolition of internal border controls, must continue to be dealt with within Third Pillar (i.e. intergovernmental) cooperation. The British delegation reiterated its opposition, as a matter of principle, to the Commission's approach (which implies a transfer of the above issues to the First Pillar (Community law)), without, however excluding a "certain degree" of Third Pillar cooperation in this field between the member states.

For its part, the Commission, represented by Ms Anita Gradin, said it would maintain its proposals unchanged, as long as the European Parliament has not stated its opinion on the matter.

 

Illegal employment of third country nationals

No reservations were made by any member state delegation with respect to the content of a draft Recommendation regarding the fight against illegal employment of third country nationals. The draft Recommendation lists a number of penal and/or administrative sanctions not only against employers of illegal workforce, but also anybody "favouring, facilitating or promoting" illegal employment. Thus, illegal and organised trafficking in workers by individuals or networks should be punishable.

The draft Recommendation further calls on the member states to coordinate the action of their "competent services and authorities" in combating illegal employment, by, among other things, exchanging information and preparing joint operations covering particular economic sectors, geographical areas and periods of time associated with frequent illegal employment. The joint operations could consist of one member state supporting the "preventive action" of another member state, such as the inspection of workplaces or occasional assistance in "urgent situations".

Council decisions in the form of "Recommendations" do, however, not legally bind the member states.

 

Eurodac

Eurodac, the planned automated system for the exchange of fingerprints of asylum seekers, is necessary, according to the Minister, for the effective implementation of the Dublin Convention (which determines the member state responsible for examining an asylum application). A common fingerprint system would speed up asylum procedures by enabling a rapid identification of asylum seekers. As a result, multiple applications in several countries and new applications under false identities of persons expelled from the EU territory could be prevented more successfully.

The Dublin Convention was signed by all member states in 1990 and is expected to enter into force as soon as it has been ratified by the Irish and the Dutch parliaments.

The Eurodac Convention is currently being elaborated upon. It will provide the legal basis for the electronic register. As for the technical characteristics of the system, the Ministers are expected to take a final decision before the end of this year.

 

EDU-Europol

The Ministers agreed on the principle of increasing the 1997 budget of EDU-Europol by 12 per cent as against 1996. Thus, EDU-Europol, whose only legal basis is a "Joint Action" of the JHA Ministers, would have at its disposal the considerable sum of 5.6 Million ECU in 1997. The costs of Europol's Information System, which are not included in this sum, will amount to additional 5.5 Million ECU in 1997, 13 Million ECU in 1998 and 11 Million ECU in 1999.

The British delegation refused to vote on a formal decision because of the BSE controversy, but does not appear to object to the budget increase and the ensuing strengthening of EDU-Europol.

The Council also took note of a report defining the technical requirements for Europol's future electronic information system. Among other things, the report is believed to deal with questions such as the linking up of Europol's various data registers with other data registers in the domain of policing, such as the Schengen Information System SIS (which will eventually become the European Information System, EIS), Interpol's registers and relevant data bases of third countries. Under the Europol Convention such links may be established on the basis of a unanimous decision of the JHA Ministers.

 

Directory on anti-terrorist expertise

The proposal to create a directory containing information on all agencies in the member states involved in the fight against terrorism, as well as their particular competencies and expertise, was originally presented by the UK. The objective of the directory is to facilitate cooperation between the member states in combatting of terrorism.

The Italian JHA Presidency noted that no delegation objected to the content of a draft Joint Action regarding the creation and regular up-dating of the directory. No formal decision was taken, due to the UK's position of non-cooperation.

 

EU participation in the US-sponsored International Law Enforcement Academy?

The Ministers exchanged views regarding the possibility of a EU participation in the International Law Enforcement Academy (ILEA) set up in Budapest in 1995 by the American FBI in cooperation with the Hungarian Government. The ILEA organises training courses for 150 police officers annually from the Central and Eastern European countries (CEEC).

While some delegations favoured a step by step approach, others advocated full EU participation on a level of equality with the USA. One delegation stated its opposition against any EU participation whatsoever in ILEA.

The Council refrained from taking any decision pending further consideration.

[It is characteristic of the EU's lack of action vis-à-vis the CEEC (which are all striving for EU membership), that the USA were first in setting up a police academy in Central Europe. So far, EU member states have preferred to develop their police cooperation with the CEEC outside EU structures and on an often quite informal basis. One example is the Central European Police Academy (CEPA), a joint Austro-Hungarian enterprise in which Germany, Poland, Slovakia, Slovenia and the Czech Republic are now also involved. According to the "Langdon Report" on JHA Cooperation with Associated Countries (October 1995), the aim is to "promote swift unbureaucratic cooperation between police officers engaged in investigations and operations". The courses are directed at specific policing issues such as drug-related crime and illegal immigration. Significantly, the courses are conducted in German only, which could be an explanation for the apparent lack of interest by the JHA Council in this project.]

 

Priorities of JHA cooperation until Summer 1998

There is agreement among the member states on a draft Resolution concerning the priorities of JHA cooperation for the next two years. A vote was postponed due to British non-cooperation.

The following items are among the priorities established by the Resolution:

1. Fight against terrorism: updating of the document on terrorist threats; directory on anti-terrorist agencies and expertise.

2. Fight against organised crime and drugs: implementation of the Europol Convention (implementing rules, Information System and control of the EDU); police training; strengthened technical cooperation, in particular concerning the interception of telecommunications, scientific police laboratories and national criminal intelligence services; project of a "Naples II" Convention on extended Customs cooperation; strategies for the control of external borders; fight against counterfeiting (trade-marked goods) and trafficking in works of art; examination of the effects a possible harmonisation of member states' legislation could have in reducing drug consumption and trafficking within the Union.

3. Judicial cooperation: Convention on Extradition; Convention on mutual legal assistance in criminal affairs; implementation of the Joint Action on liaison prosecutors and examination of the need for a network of "contact prosecutors".

4. Asylum and immigration: implementation of the Dublin Convention; mutual adaption of national asylum procedures and refugee law; mutual adaption of the conditions of reception of asylum seekers; development of the Eurodac system; examination of the legal situation of third country nationals legally residing on the territory of the member states; examination of problems regarding temporary protection and burden sharing; examination of forms of protection other than refugee status (de facto refugees, humanitarian grounds); fight against illegal immigration and employment; improved cooperation with countries of origin and with regard to the removal of illegal immigrants (readmission problem); document counterfeits (development of a common system for storing and transmitting pictures); examination of the problem of family reunion.

5. Reinforcement of checks of persons at external borders: draft Convention on the EIS (European Information System); improved operational cooperation between control authorities at external borders; mutual recognition of visa.

6. Fight against racism and xenophobia: Continuation of works on the judicial and police level.

A reason for establishing the priorities of cooperation by way of a Resolution is to achieve greater discipline by member states in implementing policy decisions agreed by the JHA Council.

 

JHA Conventions and the European Court of Justice

Once again, no agreement was reached with regard to jurisdictional powers for the European Court of Justice (ECJ) within the framework of the Europol Convention and other JHA Conventions. In the light of persisting British opposition to any involvement of the Court in Third Pillar conventions, the Council decided to submit the issue to the EU summit (European Council) in Florence. At the Cannes summit of June 1995, the EU heads of state agreed that a solution must be found at the June 1996 summit at the latest.

 

Convention on Extradition

Significant progress seems to have been achieved with regard to the draft Convention on Extradition (see FECL No.40: "K.4 COMMITTEE DRAFT CONVENTION ON EXTRADITION").

Among the problems which remain to be solved is certain member states' reservation against a provision providing for the extradition of persons based on charges not punishable in the requested state. In several member states, to depart from the principle of double incrimination (the principle that extradition is possible only for offences punishable both in the requesting and the requested state) would breach the law. The French delegation now proposed a compromise formula under which these states would commit themselves to introduce in their legislation the catch-all offence of participation in a criminal organisation (association de malfaiteurs). This would enable the extradition of persons not accused of any more specific offence punishable in the requested state. Preliminary reactions of the member states indicate that agreement could be reached on this basis.

With regard to the problem concerning the extradition by member states of their own nationals, Denmark, Sweden and Finland presented a joint declaration, according to which they are prepared to extradite persons residing on their territory, provided they are not citizens of one of the five Nordic countries. This indicates that the governments of the Nordic EU-member states are willing to change their present legislation under which non-nationals legally residing on their territory may not be extradited. In an advance information on the JHA meeting in Luxembourg to the Danish Parliament's Committee on Legal Affairs, the Danish Minister of Justice, Bjoern Westh, contended that the other EU member states were "demanding" such a declaration from the Nordic countries. It remains to be seen whether the parliaments of Denmark, Sweden and Finland will agree to a change of legislation that would put an end to equal legal protection of Nordic and non-Nordic citizens residing on their territory.

 

Sources: 1993rd session of the JHA-Council, Luxembourg, 4.6.96, Communication à la Presse, 7813/96 (Presse 157); Projet de recommendation sur la lutte contre l'emploi illégal de ressortissants d'Etats (7813/96 Annexe I); Projet de résolution portant fixation des priorités de la coopération dans le domaine JAI (JHA) pour la période du 1.7.96 au 30.6.98 (Annexe II); Danish Ministry of Justice, Copenhagen, 23.5.96: Advance information to the Legal Affairs Committee of the Parliament on the agenda of the JHA-Council meeting on 4-5.6.96 (in Danish); our sources. All quotations are our translations from French and Danish.