FECL 57 (March 1999):
In March 1998, the JHA Council solemnly announced its intention to make its work more transparent to the public, by allowing the public to attend at least one "open debate" every half year on a "suitable subject" (see FECL No.54: "Justice and Home Affairs Council of 19 March"). In practice, these "open debates" have provided ministers with a new opportunity to woo their home public by demonstrating determination and capacity to act. Consequently, the "open debates" preceding Council meetings have hitherto consisted in the ministers from all too many Member States taking turns in making "strong" general statements on issues which, they are told by opinion polls, preoccupy the (home) public. Thus, we are regularly reminded that the Council is working hard to combat paedophiles and other organised criminals, terrorists and illegal immigrants, and that the "area of freedom, security and justice" established by the Amsterdam Treaty will bring European citizens more freedom, security and justice. After these ceremonial exercises in transparency, the public and the press are kindly requested to leave the premises and ministers can, at last, begin to discuss seriously - behind locked doors, as in the good old days.
Most of the "open debate" of 3 December concentrated on the Action Plan, adopted at the meeting, on how to best implement the provisions of the Amsterdam Treaty on an EU area of "freedom, security and justice". Little worth reporting was said. Among others, German Justice Minister Herta Däubler-Gmelin announced that the German Presidency (January-June 1999) intended to emphasise the development of judicial cooperation by working towards a common "European legal structure" and the "primacy of the judiciary". European law must be developed hand in hand with European police cooperation and Europol, the minister insisted. She was backed by her Dutch colleague, Mr Korthals, who stressed that EU judicial cooperation in criminal matters must become "just as effective as police cooperation". For her part, the Italian Interior Minister, Ms Jervolino-Russo, called for Europol's mandate to be swiftly extended to "all fields of crime".
The main objective with the Action Plan is to set up a time-table for the adoption, by the JHA Council, of measures stipulated by the Amsterdam Treaty, with a view to creating the "area of freedom, security and justice". In substance, the Action plan is fairly vague and contains few elements that have not already been stated in the Treaty or in JHA documents.
Concerning asylum and immigration policies, the document notes that "the instruments adopted so far often suffer from two weaknesses: they are frequently based on "soft law", such as resolutions and recommendations that have no legally binding effect. And they do not have adequate monitoring arrangements. The commitment in the Amsterdam Treaty to use European Community instruments in the future provides the opportunity to correct where necessary these weaknesses". Priority is to be given to replacing "soft law" within the Third Pillar acquis by "more effective" (i.e. binding) rules.
Concerning justice and police cooperation, the Action Plan states that "the agreed aim of the Treaty is not to create a European Security area in the sense of a common territory where uniform detection and investigation procedures would be applicable to all law enforcement agencies in Europe in the handling of security matters. Nor do the new provisions affect the exercise of the responsibilities incumbent upon Member States to maintain law and order and safeguard internal security".
Regarding the "area of Justice", the document acknowledges "the reality that, for reasons deeply imbedded in history and tradition, judicial systems differ substantially between Member States". Correspondingly, the aim is described vaguely and modestly as giving citizens "a common sense of justice throughout the Union". Somewhat more specifically, the Action Plan states: "Terrorism, corruption, traffic in human beings, organised crime, should be subject to minimum common rules relating to the constituent elements of criminal acts, and should be pursued with the same vigour wherever they take place".
Under chapter E (Relations with third countries and international organisations) it says: "In particular, the communitarisation of matters relating to asylum, immigration ...permit the Community ... to exercise its influence internationally in these matters. In those subjects which remain in Title VI of TEU, the Union can also make use of the possibility for the Council to conclude international agreements in matters relating to Title VI of the Treaty, as well as for the Presidency, assisted by the Secretary General of the Council and in full association with the Commission, to represent the Union in these areas".
This is of some interest in view of a key proposal in the controversial "strategy paper" of the Austrian Presidency on EU asylum and migration policies (see FECL No.56: "EU strategy paper on asylum and immigration: show of 'political muscle'" and "'Zero tolerance' policy on immigration is the real security threat"), that the EU make use of "political muscle" in getting immigrant generating countries and international bodies such as UNHCR to comply with restrictive EU policy objectives in the field.
Somewhat remarkably, the Action Plan does not contain any specific proposals pertaining to Community and Title VI working structures (i.e. K4 Committee, Schengen bodies).
The JHA almost failed to adopt the Action Plan at the December 3-4 meeting due to disagreement on the time limits set for certain measures stated in the plan. The main point of discord regarded "burden sharing". While traditional target countries of asylum seekers (Germany, Austria, the Netherlands) pressed for a two year limit, others (Spain and France) advocated a five year limit. Ministers eventually reached agreement on the Plan on the basis of a compromise under which burden sharing measures will be adopted "as quickly as possible in accordance with the [Amsterdam] Treaty".
This wording is typical of the Action Plan as a whole. In fact, its says little more than that the Council is determined to achieve the objectives defined by the Amsterdam Treaty within the time limits set by the Treaty itself.
According to press reports on the meeting, the Council reached "political agreement" on the Eurodac Convention. However, in a Danish government note to parliament, it says unequivocally that the Council "did not reach full agreement on the Convention", and that the objective now was to reach "political agreement" at the next JHA Council meeting in March. As a matter of fact, Member States still disagreed on a number of issues: a draft protocol to the Convention, providing for extending the Eurodac system to fingerprints of "illegal immigrants" is a major stumbling stone, because of the different reading by the Member States of the term "illegal immigrant". Furthermore, it is understood that France still objects to entrusting the Commission, rather than a Member State, with running the central Eurodac computer. France seems to fear a precedent that could eventually result in the Commission being entrusted with the management of C-SIS (Central Unit of the Schengen Information System), once it becomes EIS (European Information System). For the time being, the C-SIS is placed in Strasbourg and is managed by France. A compromise on this issue seemed within reach, after the Presidency proposed specifying in the Convention text that the entrustment of the Commission with the management of Eurodac does not prejudice the management of other systems. Last but not least, the UK and Denmark have a problem with giving the European Court of Justice (ECJ) preliminary jurisdiction. In a somewhat desperate effort to save at least an appearance of unity, the Ministers reached a deal under which the formal adoption of the Convention will be postponed until after the entry into force of the Amsterdam Treaty. The provisions of the Convention on which agreement has been reached were "frozen", that is, they can no longer be subject to changes. At the same time the Council decided to continue work on the draft protocol to the Convention with a view to reaching "political agreement" on the text, if possible as early as the JHA Council's March meeting. The "frozen" text is to be incorporated into the Community sphere upon entry into force of the Amsterdam Treaty. At that stage, the Commission is to present a proposal for a regulation within the framework of the First Pillar (where ECJ jurisdiction is not objected to by the UK). Establishing Eurodac under a (First Pillar) Community regulation rather than a (Third Pillar) Convention would have the advantage (from governments' point of view) that Community regulations have immediate binding effect in the Member States and do not require time consuming ratification by national parliaments.
Nonetheless, the failure of the Council to reach final agreement on the Convention before the end of 1998, as originally planned, suggests that the term "frozen" is a new Euro-euphemism for "shelved". In practice, Ministers have simply postponed a decision on a thorny item.
The Council also discussed two proposals for Joint Action by the Commission: on temporary protection for "displaced people" (a fashionable term which makes it possible to talk about refugees without having to mention the word "refugees"); and on "burden sharing" in the event of mass arrivals of asylum seekers.
The Commission proposal on temporary protection stresses the rule that refugees must first seek protection in their "home region". Persons who can reasonably (according to EU governments) find protection in their "home region" (that is inside their country of origin or in a neighbouring non-EU country) would be automatically excluded from temporary protection measures as proposed by the Commission.
The proposal on "solidarity" comprises rules on how to share the burden of mass reception as a result of an EU decision to grant temporary protection. The proposal for Joint Action provides for Member States to conclude agreements on the distribution of persons benefiting from temporary protection but avoids addressing the crucial point of discord by not establishing any distribution key.
A "very frank debate" (in the words of the Presidency) on the proposals revealed that differences between Member States are far from ironed out. Italy insists that temporary protection and burden sharing must be linked. Some delegations demand that Council decisions regarding temporary protection should not require unanimity. As the Ministers' discussion of the Action Plan on Freedom, Security and Justice shows, countries which receive fewer refugees are in no hurry to share the "burden" weighing on prime target countries.
Ministers discussed a second revised version of the Austrian presidency's "Strategy Paper" on asylum and immigration polices ( see FECL No.56: "EU strategy paper on asylum and immigration: show of 'political muscle'" and "'Zero tolerance' policy on immigration is the real security threat"). The Austrian Presidency once again emphasised that the document had "preliminary character" and required further examination. Work on the document is being continued under the German Presidency, with the aim of having it finalised for the Tampere EU Summit on JHA policies, in October 1999. The Council took note of an interim report on the Strategy Paper. According to a German government note, further work on the paper will particularly focus on "cooperation" with main countries of origin of immigrants, the prevention of causes of flight, and more effective return of "illegal migrants".
In this context, a proposal by the Netherlands to set up an interdisciplinary and inter-Pillar "task force" on asylum and immigration drew strong support. Its task would consist in conducting a closer analysis of those third countries from which most asylum seekers and immigrants enter the EU.
The Dutch initiative resulted in a decision by the General Affairs Council of 7-8 December to set up a so-called "High Level Working Group on Asylum and Immigration" (HLWG). The HLWG was commissioned to submit to the Council by March a proposal for a priority list of five main countries of origin and transit for which action plans for the implementation of an "integrated cross-Pillar approach" will be prepared. The terms of reference of the HLWG were defined by the General Affairs Council on 25-26 January (Doc 5264/99 Limite, JAI 1, AG 1, 13.1.99), whereby "relevant paragraphs" of the Austrian Strategy paper were "taken into account". The HLWG is to:
- indicate how cooperation with UNHCR can be strengthened in the region in question (read: how UNHCR can be persuaded to concentrate its efforts on keeping refugees in their "home regions" rather than receiving them in EU host countries).
- indicate possibilities for cooperation with intergovernmental, governmental and non-governmental organisations in the country concerned and in neighbouring (non-EU) countries.
This description of the HLWG's tasks strongly suggests that the policy outlines drawn up in the controversial Austrian Strategy Paper on asylum and immigration are already strongly influencing EU policies in the field, despite numerous statements from EU governments insisting on the "preliminary" and "draft" character of the paper.
The adoption of the rules of procedure of the Joint Supervisory Board of Europol (JSB) are the last remaining legal act required for Europol to start working. But Ministers did not reach final agreement on the item, due to a French-German dispute over the character of the body. While Germany wants the JSB to be a Court-like body (with public hearings), France is insisting on its administrative character. Under a compromise formula discussed by the Ministers, the JSB is to become a body sui generis, i.e. neither a Court nor just an administrative body. In European Voice (25.2.99) this construction is described as a "hybrid body which would combine the confidentiality of the administrative approach with the impartiality of a judicial set-up".
The steady extension of Europol's remit to additional types of crimes is being pursued at a quick pace. The Council formally adopted a Decision instructing Europol to deal with "crimes committed or likely to be committed in the course of terrorist activities against life, limb, personal freedom or property" (OJ C 026, 30/01/1999 p.0001-0016). Ministers further adopted a Decision supplementing the definition of the form of crime 'traffic in human beings', and discussed another extension of the mandate of Europol to money forgery. The Management Board of Europol was tasked with preparing a decision to this end.
The Council formally adopted a number of implementing rules in accordance with the Europol Convention, including rules on analysis files (political approval: May 1997); rules for Europol's staff and on data security (political approval: March 1998); rules on the receipt of information from third countries and non-EU organisations and rules on relations with third countries and external organisations (political approval: December 1997).
Ministers did not reach final agreement on the draft Convention because of one remaining obstacle: the UK insists it should be allowed to tap phones of suspected criminals in other member States without informing the national authorities concerned first. Other Member States do not want to allow cross-border telephone tapping without prior notification.
In March 1998, the JHA Council had reached political agreement on a draft Joint Action making it a criminal offence to participate in a criminal organisation in the Member States of the Union (see FECL No. 54: "Justice and Home Affairs Council of 19 March: Joint Action on ‘participation in a criminal organisation’", No. 52: "'Participation in a criminal organisation' soon a crime in all EU-member states?"). Formal adoption of the measure was however delayed, due to a parliamentary reservation of Belgium. Although this reservation had not yet been lifted when the JHA Ministers met on 3-4 December, this appears to have happened shortly after. Indeed, the Joint Action was quietly adopted on 21 December (Doc 498X0733, OJ L 351, 29/12/1998 p.0001-0003), apparently by a Council other than the JHA Council. The purpose of the Joint Action to make "participation" in a "criminal organisation" (or terrorist organisation) a punishable offence in every Member States should also be considered in the light of the new mandate for Europol to deal with terrorism-related crimes.
Ministers reached political agreement on a protocol to the 1995 CIS Convention. The Convention is expected to enter into force during the German presidency. By December 1998, it had been ratified by five member States (Sweden, Denmark, UK, Austria and Italy).
In accordance with the Naples II Convention on Customs cooperation, the draft Protocol provides for an extension of the term "money laundering" to other activities than traffic in illegal drugs. The draft Protocol further specifies the "architecture" of the planned CIS. The system is to be made of a central database divided into two categories - one for information gathered within the scope of Community law (First Pillar) and another for information relating to Third Pillar activities. Users will have access to the system through a common server, with a common user interface for both categories of data. The Commission will not have access to the CIS.
The Ministers adopted a Joint Action providing for the electronic storage and exchange of images of genuine and forged documents, information on forgery techniques and forgery-preventive security techniques. The system, named FADO ("False and Authentic Documents") is to be under the General Secretariat of the Council.
Although an "A-point" on the Council agenda, a Joint Action regarding visas on travel documents issued by States or entities not recognised by the Union was not adopted due to a Greek reservation concerning the status of the Turkish part of Cyprus.
Ministers reached political agreement on:
After the Council meeting, the JHA Ministers met as the "Article 18 Committee" under the Dublin Convention and attempted to resolve a dispute on the interpretation of Article 7.2 of the Dublin Convention. The provision establishes that a Member State which authorises transit without visa in its airport transit zone is not responsible for entry checks of travellers who do not leave the zone. The question is whether this also applies to asylum seekers who lack transit visa, especially asylum seekers who have withdrawn their application in a Member State. Different interpretations by the Member States of the provision have led to disputes concerning the determination of the State responsible for examining an asylum application. Ministers discussed whether the provision in question needs to be specified through an amendment to the Convention, or simply through a decision of the "Article 18 Committee" (the Ministers). The item was shelved due to persistent differences between the Ministers.
Sources: 214th meeting of the JHA Council, 3-4.12.98, provisional agenda, 13490/98, Limite, OJ/CONS 94, JAI 38, 30.11.98; Action Plan on establishing an area of freedom, security and justice, 13844/98 JAI 41, 4.12.98; Strategie zur Migrations- und Asylpolitik (Strategy for migration and asylum policy), 14265/98, Limite, ASIM 260, Migr 31, Asile 12, 21.12.98; Draft Terms of reference of the High Level Working Group Asylum and Migration, 5264/99, Limite, JAI 1, AG 1, 13.1.99; Joint Action on making it a criminal offence to participate in a criminal organisation in the Member States of the EU, Doc 498X0733, OJ L 351, 29/12/1998 p. 0001-0003; Geschäftsordnung der Gemeinsamen Kontrollinstanz (rules of procedure of Europol Joint Supervisory Board), 12402/98 Europol 112, and changes, 12682/1/98 Rev 1, Europol 116; Notes from the Danish Ministries of Justice and of Home Affairs on items on the agenda of the JHA Council of 3-4.12.98, 19.11.98; Note from the Danish Foreign Affairs Ministry, 20.11.98; Note from the Danish Foreign Affairs Ministry on the outcome of the JHA meeting of 3-4.12.98, 11.12.98; Note from the German Ministry of Justice on JHA Council agenda, 28.11.98; Note from the German Interior Ministry, 25.11.98; Agence Europe reports, 2/3/4/7/16.12.98; European Voice, 10-16.12.98.