FECL 54 (May 1998):


The JHA Council of 19 March addressed a broad range of items, including, among others, Europol, Eurodac, the draft Convention on Mutual Assistance in Criminal Matters, the setting up of a "European Judicial Network", the implementation of the 46 point Action Plan on "illegal immigration" from Northern Iraq and neighbouring regions, and openness and transparency in the JHA area. The meeting was chaired by the British Home Secretary (Interior Minister), Jack Straw.



The Council approved, without discussion, EDU/Europol’s work report 1997 and work programme 1998, decided on an "intermediary solution" for Europol’s computer system (whose full entry into operation is delayed due to technical problems), rules on the handling of information received by Europol from third countries and third bodies (both inside and outside the Union), secrecy rules, and the internal rules of the Joint Supervisory Authority (data control and protection).

The Ministers discussed a Spanish demand that Europol’s remit should already be extended to include terrorism-related crimes by 1 January 1999. According to initial plans, this extension was to take place within the two years following the entry into force of the Convention. Ministers finally agreed on a text acceptable to Spain, according to which Europol shall be tasked with the fight against terrorism "as rapidly as possible". EDU/Europol is to make a feasibility study on the subject.

Chairman Jack Straw once again urged the Member States which had not completed ratification of the Europol Convention to do so quickly. Italy ratified the Convention two days before the Council, on 17 March, Greece and Luxembourg pledged to do so within the next four weeks, and Belgium promised to complete ratification "before the summer".


Dublin Convention and Eurodac

The Ministers discussed the implementation of the Dublin Convention (determining the Member State responsible for examining an asylum application made in the territory of the EU). Germany in particular has time and again emphasised "serious deficits", related to difficulties in establishing the Member State where a third country national first entered EU territory. At the Council, Germany once again claimed an effective implementation of the Dublin Convention was impossible as long as only asylum seekers' fingerprints are stored in the Eurodac system. Germany, supported by Austria and the Netherlands, therefore pleaded for an immediate amendment of the draft Convention to include not only asylum seekers but also other third country nationals whose identity has not been established beyond doubt. While the Council reached agreement on the principle of widening the scope of Eurodac as proposed, a majority of Member States would prefer that this be achieved through a separate text, e.g. a protocol attached to the Convention, since they fear an amendment of the draft Convention could further delay the entry into operation of the system.

Some items still remain to be solved. A number of member States still continued to maintain reservations with respect to the question of whether the system should be managed by a Member State or by the Commission (as demanded by the European Parliament). It is believed that a majority of Member States would prefer the Community to both manage and fund the system.


Action Plan on immigration from Northern Iraq

The 46 Point Action Plan, among others, calls among other things for quick negotiations with Turkey with a view to concluding a readmission agreement between this country and the EU (see FECL No.53: "Kurdish Exodus triggers EU-war on 'illegal immigrants'"). Reporting on progress with the implementation of the Action Plan, the Presidency said somewhat vaguely that Turkey had made indications that it was prepared to discuss such an agreement that would, however, only apply to the readmission by Turkey of its own nationals.


Joint Action on ‘participation in a criminal organisation’

The Council reached political agreement on a draft Joint Action, under which Member States bind themselves to make ‘participation in a criminal organisation’ a punishable and extraditable offence under their respective national law (see FECL No.52: "'Participation in a criminal organisation' soon a crime in all EU-member states?"). Belgium agreed with the reservation that the final wording of the Joint Action would have to be approved by the Belgian Parliament. Belgium had earlier demanded that the punishable offence of participation be restricted to criminal organisations making use of "intimidation, threat, violence, fraudulent practice or corruption". This proposal was dismissed by all other Member States.

According to the final wording of Article 1 of the Joint Action, a criminal organisation will mean:

"... a lasting, structured association of more than two persons, acting in concert with a view to committing crimes or other offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, whether such crimes or offences are an end in themselves or a means of obtaining material benefits, and, if necessary, of improperly influencing the operation of public authorities".

The Joint Action also extends the criminalization of "participation" to persons who (e.g. as lawyers or accountants) take part in legal activities of a criminal organisation in the knowledge that this participation will "contribute to the achievement of the organisation’s criminal activities". Denmark dropped an earlier demand which would have somewhat restricted the scope of the provision. Thus, Ministers appear to have agreed on the most catch-all wording of the definition of the crime.


Joint customs operations

The Council noted a report on three joint customs operations conducted by no less than 20 states inside and outside the EU. Council chairman Jack Straw called the three operations "particularly constructive". The first operation focussed on air-transit passengers. Besides the EU countries, Switzerland, Russia, Bulgaria, Hungary and the Czech Republic took part in it. The second was a maritime operation, in cooperation with Norway. The third aimed especially at combatting alcohol, tobacco, and drug smuggling. According to the report, the three operations resulted in the seizure of 541 kg cocaine, 2,949 kg of cannabis, 163 million cigarettes and 67,000 l alcohol.


Openness and transparency?

The Council adopted a Conclusion on openness and transparency in the JHA area. Henceforth, the calendars of the K.4 Committee and other third pillar bodies will be published, and the Council will hold more meetings with the press. Moreover, once under each Presidency (i.e. twice a year), the public will be admitted to Council deliberations on a "suitable subject". Proposals for measures in the JHA area will be made available to the public, once they have been transmitted to the European Parliament.

While the above measures represent a step in the right direction, they are far from sufficient and appear to be mainly aimed at appeasing the public. In fact, the very idea of freedom of information is that the public should have access to information at all stages of proceedings. As long as the Council decides in a discretionary way, what is "suitable" for the public to know, and at what time, this has little to do with genuine freedom of information. It is little of a comfort that the public will have access to draft documents in the JHA area "at the same time as the European Parliament", since it is well known that the Parliament regularly gets draft documents too late for any thorough examination to be made.


Joint Action establishing a "European judicial network" not adopted

The Ministers failed to reach agreement over a draft Joint Action regarding the creation of a European judicial network. The purpose of the draft Joint Action is to improve judicial cooperation between the Member States, especially as regards the fight against serious crime, by setting up the necessary structures enabling direct contacts between "judicial and other authorities". The judicial network is to be made up of the central national authorities responsible of international judicial cooperation and/or entrusted with specific tasks in the fight against organised crime. Each Member State is to designate one or more central national contact points.

Despite general agreement over the principle, the Joint Action was not adopted, due to Spanish reservations on the status of Gibraltar. Spain maintained its reservation despite the UK’s declaration that it did not intend to set up a contact point in Gibraltar.


Other items

The Council further adopted

a Conclusion stating the EU’s commitment to implement the G8 recommendations on organised crime, terrorism and high-tech crime;

a Joint Action regarding exchanges, training and cooperation for persons responsible for action against organised crime (Falcone Programme: The programme has been granted 10 million ECU for the period 1997-2002);

a Joint Action on training, exchanges and cooperation in the fields of asylum, immigration, and the crossing of external borders (Odysseus Programme).

The Council further approved conclusions on a progress report on the exchange of information between Member States in the field of asylum and immigration. On the basis of these conclusions, the Community statistical office, Eurostat, will be responsible for collecting and processing statistical data in this area (including confidential data), used by the two "clearing houses", CIREA and CIREFI. The Council considers that the Central and Eastern European candidate countries and Cyprus should be included "in an appropriate manner" in this information system.


Sources: Overview by the Danish Ministry of Justice of items on the agenda of the JHA Council of 17 March, LSCO1122, J.nr 1998-1600/21-0365, 5.3.98; Overview by the Danish Ministry of the Interior of items on the aganenda of the JHA Council of 19 March, Udenrigsministeriet, 6.3.98; Report of the German Federal Government on the JHA Council (19.3.): Justice items, Bundesministerium der Justiz, 23.3.98; Home Affairs items, Bundesministerium des Innern, 23.3.98; European Union, the Council: list of A-points, 18.3.98, 6862/98 limite PTS A 14; EU Council: Preliminary agenda JHA Council 19 March, 16.3.98, 6861/98 limite OJ/CONS 12, JAI 11; Agence Europe reports 18, 19, and 20.3.98; Joint Action on making it a criminal offence to participate in a criminal organisation, draft approved by the JHA Council on 19.3.98, Doc 13174/97 (Annex).