JUSTICE AND HOME AFFAIRS COUNCIL OF 28-29 MAY

FECL 55 (August 1998)

The JHA Council of 28-29 May began with an "open debate" on the "fight against organised crime", to which the public was admitted. The following article relates some of the items the Council preferred to discuss, once the doors were closed to curious EU citizens and the press.

Action Plan for the fight against organised crime: progress report

The Council approved without discussion an interim report on the implementation of the objectives established by the Action Plan for the fight against organised crime (see FECL No.51: "High Level Group presents 'Action Plan' against organised crime"), which was drawn up by a High Level Group of officials and approved by the member state governments at the Amsterdam EU summit in June 1997. After Amsterdam, a permanent interdisciplinary Group on Organised Crime was set up. It monitors the implementation of the recommendations made in the Action Plan and discusses future policies in the field.

Among the achievements noted by the report are:

Withdrawal of driving licences

The Council reached "political agreement" on a Convention on driving disqualifications ensuring that drivers who lose their licences while abroad through committing a serious motoring offence in a EU member state will not be able to continue driving at home. Ministers discussed the question of whether rules on data protection should be included in the Convention text, since neither the 1995 EC Directive on data protection nor the 1981 Council of Europe Convention apply to Third Pillar agreements. Ministers agreed on a compromise formula, under which the Council will examine without delay proposals for ensuring satisfactory data protection.

The adoption of the Convention had been repeatedly delayed because of the "Gibraltar dispute" between Spain and the UK. The problem was finally overcome when Britain accepted that Gibraltar be excluded from the territorial scope of the Convention - a solution likely to please rogue motorists in Gibraltar.

Joint Actions adopted

Two Joint Actions were adopted:

  • Political agreement on a Joint Action on good practice in mutual legal assistance (formal adoption on 29 June, by the General Affairs Council).

  • Joint Action establishing a European Judicial Network (formally adopted on 29 June). Like the Convention on driving disqualifications, this Joint Action will not apply to Gibraltar. It will set up a network of judicial "contact points" aimed at improving legal and practical cooperation between the judiciary of the member states. The Joint Action is to enter into force before the end of this year.

Rapid growth of Europol predictable

At the time of the JHA Council of May, all but one member state (Belgium) had ratified the Europol Convention. On 12 June the Convention was ratified also by Belgium, but a number of member states had not yet completed ratification of the Protocol on immunities of Europol staff. Nonetheless, Europol will formally enter into operation on 1 October. The Council approved a recommendation by COREPER, based on a "feasibility study" conducted by EDU/Europol, to the effect that Europol will be tasked with the fight against terrorism from 1 January 1999. However, Denmark once again demanded guarantees that Europol be involved only in the investigation and prosecution of specific terrorist crimes and not in pro-active intelligence operations. This important item does not seem to have been finally addressed by the Council.

No final agreement was reached over Europol's 1999 budget plan. The German Deputy Interior Minister, Secretary of State Schelter strongly advocated a massive increase of Europol's staff and budget, without which, he argued, the agency would lack credibility. Ministers finally reached preliminary agreement on increasing Europol's staff by the addition of 50 new posts. Currently, EDU/Europol has a staff of 69. Comparing these figures with the 4,500 staff of BKA, the German Federal Office of Criminal Investigation, Secretary of the State Schelter emphasised that the proposed increase for Europol was an "absolute minimum".

A final decision on the budget of Europol will be taken before the end of the year. But Germany has already insisted that the Council must be prepared to grant extra financing and staff increases to Europol beyond what has been envisaged, whenever this should prove necessary as a result of "need for immediate action" (e.g. new tasks being conferred upon the agency). For their part, the Netherlands and France insisted on the need for effective parliamentary control of the budget of Europol.

Draft Convention on Mutual Assistance in Criminal Matters (CMACM)

The objective of the British to have the Convention adopted before the end of their Council presidency was not attained. There is continuing disagreement between the member states about the need for data protection rules to be included in the Convention, the wording of rules pertaining to the interception of telecommunications, and the role of the ECJ (on CMACM, see FECL No.54: "Naples II and Mutual Assistance in Criminal Matters: the making of a legal labyrinth").

Action Plan on immigration from Iraq and neighbouring regions

The Ministers discussed a report on the implementation of the Plan, drawn up by the K4 Committee. Discussions are said to have focussed on action aimed at improving cooperation with Turkey. Denmark stressed that Turkey actually was the "natural ally of the Union". The Swedish representatives at the Council called for "support of the peace process in Iraq" and "continued dialogue" with Turkey. They welcomed a meeting planned for June between a delegation of the K4 Committee and Turkish authorities, but stressed (together with the Danish) that negotiations with Turkey must focus on improving working conditions for the UNHCR in Turkey.

This is of some interest in the light of recent revelations regarding meetings in March in Istanbul and Ankara, between K4 officials and representatives of the Turkish government and police and security authorities (see: Statewatch, vol 8 no 3 & 4, May-August 98).

According to a K4 Committee report on the meetings, Turkey announced that, with the help of Italy, it was going to set up so-called "reception houses" for the detention of illegal immigrants pending their removal. "The presidency and the Commission indicated that this could be a project where EU expertise and funding might be of benefit", the report states, and goes on to note that "the Turkish authorities did not see UNHCR involvement in the reception houses as appropriate, since only illegal immigrants would be held there, nor were they happy to see closer cooperation generally on the issue with UNHCR".

At a K4 Committee meeting following the March visit to Turkey a six-point plan was agreed (the member state with the leading role for each point is indicated in brackets):

  1. to assist Turkey in the improvement of conditions for detaining illegal immigrants (Italy);

  2. exchange of experience on removals to Bangladesh and Pakistan (UK);

  3. experiences on formulation of laws on illegal immigration (Belgium);

  4. expertise on the detection of false documents, including possible technical assistance and Community funding (Germany);

  5. operational information involving illegal immigration, in particular where trafficking is involved (Netherlands);

  6. training Turkish border guards to properly screen asylum-seekers (Austria).

At the JHA Council of 28 May, the British Home Affairs Minister, Jack Straw, for the presidency told journalists that he had "never seen" any paper about EU funding to help set up camps in Turkey from which UNHCR would be excluded. The question is whether Mr Straw did not know what he was talking about or whether he preferred not to talk about what he knew.

Indeed, the refugee policy objectives articulated by the five Western European Interior Ministers at a "mini-Summit" in Austria in July (see article in this issue, p.10) can be seen as further evidence indicating that the EU is planning to fund the setting up of "reception houses" in transit countries for the purposes of preventing refugees from reaching EU territory.

Eurodac Convention

At the JHA Council of 19 March, political agreement was reached on the principle of extending the Eurodac computer to contain the fingerprints not only of asylum seekers but also of "illegal immigrants".

A technical feasibility study found such an extension is possible. There is, however, continuing disagreement over whether the inclusion of illegal immigrants should be stated in the Convention text or in a Protocol to the Convention. While Austria and Germany strongly pressed for respective provisions to be included in the Convention, a majority of member states oppose this on the grounds that this would delay the entry into operation of the system. At the JHA Council of 28-29 May, agreement was reached over a compromise formula under which the storage of fingerprints of "illegal immigrants" would be provided for by a Protocol to be ratified simultaneously with the Convention. The issue was further complicated by a quite pertinent remark by the Swedish representatives. They insisted that Eurodac can not be extended as planned, as long as the member states lack a common definition of the term "illegal immigrant"...

No agreement was reached on the role of the ECJ and on whether the management of Eurodac should be conferred upon the Commission or upon a member state. Anita Gradin, the Commissioner responsible for JHA, told the Council that the most economic solution for running the central Eurodac database would be to use an existing system, run by the Commission. Accordingly, Ms Gradin suggested that UclAF ( Unité de coordination de la lutte antifraudes) and the Customs Information System could be used for Eurodac data processing, whereby the stored data would be processed separately.

The Dutch said they were prepared to drop their reservation with regard to the low minimum age of asylum seekers to be registered in the system (14 years), if agreement on the other remaining controversial items - i.e. registration of illegal immigrants, the role of the ECJ, and the management of the system (by the Commission or by a member state) was reached.

Italian initiative for improved data protection

On an Italian initiative, Ministers discussed possible measures to counteract the increasing fragmentation of data protection rules and organs in different agreements on the European level. Italian Interior Minister Napolitano said the prevailing system was "expensive and impractical" inasmuch as the Conventions on e.g. Europol, the CIS, Eurodac, and the SIS each contain different rules on data protection and provide for the setting up of a separate data protection body. He suggested that an ad hoc group set up by the member states' data protection authorities conduct a study examining inconsistencies and possible remedy. Possible solutions to be examined include the creation of a single Joint Supervisory Authority responsible for data protection within the Third Pillar and the drawing up of a "model" set of uniform data protection rules applicable to all Third Pillar agreements.

JHA Ministers and Commissioner caution candidate countries

A Pre-accession Pact on Organised Crime was signed by the EU ministers and their counterparts from the Central and Eastern European Countries (CEEC) and Cyprus.

In a meeting following the JHA Council, the EU JHA Ministers discussed ongoing preparatory work in the CEEC in the field of justice and policing. Among other things, Poland announced that it is currently setting up a national unit which will be responsible for cooperation with Europol.

Commissioner Gradin warned the candidate countries to address items important to the EU such as extradition, illegal immigration, football hooliganism and child abuse. British Home Affairs Minister Straw called the signing of the pre-accession pact a "historical milestone" in EU cooperation with candidate countries, but made it clear to the candidate countries that applications for asylum by their nationals in EU member states must stop, since otherwise the credibility of the candidate countries would be strongly shaken (Did Mr Straw mean by this that the Czech Republic should get on and stop its gypsies from seeking asylum in Britain?).

Exchange of DNA analysis results

The implementation of a JHA resolution of 9 July 1997 on the exchange of DNA analysis results was on the preliminary agenda of the Council meeting of 28-29 May. It is not clear from documents available to us whether this item was actually discussed. There is, however, a Report to the Council on the subject (Council Doc 7471/98, limite, Enfopol 47, Brussels, 7.4.98).

Among other things, the report summarises the results of a questionnaire sent by the UK to the member states in December 1997 to ascertain progress by member states in establishing their own national DNA databases. Among other things, the report establishes the following:

Three member states (Austria, the Netherlands and UK) have in place a national DNA database which holds the profiles of persons suspected or convicted of certain classes of criminal offences together with the profiles derived from stains left at the scenes of crime. One further member state (Spain) has a database of profiles taken from crime scene stains.

The circumstances in which samples may be taken from persons for DNA profiling purposes vary considerably from one member state to another. At one end of the scale, legislation in the UK permits samples to be taken, without consent, from any person charged or convicted of any offence punishable by imprisonment. Other member states limit the power to take samples to a narrower category of serious offences.

Of the other eleven member states without an existing national DNA database, eight are in the process of establishing one within the next two years. Three member states have no current plans to set up a database.

In the majority of cases there appears to be no legal restrictions to the sharing of DNA profiling data with other member states.

Exercise in "transparency"

On 19 March the JHA Ministers decided on a number of measures officially aimed at improving freedom of information and transparency of decision-making within the Third Pillar. Among other things it was decided to hold an "open debate" on a "suitable subject" of JHA cooperation once every six months (see FECL No.54: "Justice and Home Affairs Council of 19 March"). Consequently, the British Presidency decided to start the JHA Council of 28-29 May with such an "open debate", to which the public and the press were allowed access. The "suitable subject" chosen by the British Presidency was the "fight against organised crime". Not unexpectedly, the "debate" mainly consisted of a succession of prepared statements by the Ministers of each member state, all clearly intended to convince the respective electorates at home that organised crime indeed is a threat to security and that their Ministers were most devoted of all in combatting it. We spare our readers a summary of this staged exercise in transparency.

Sources: Bericht 32/98 über die 2099. Tagung des Rates der EU am 28./29. Mai 98, Justiz und Inneres, Beobachter der Länder bei der EU, 2.6.98; German Federal Interior Ministry: Ratstreffen der EU-Innen- und Justizminister in Brüssel, 29.5.98; Report of the German Federal Government to Parliament on the JHA Council of 28-29 May, Justice items, Bonn, 8,6,98; Danish Ministry of Foreign Affairs (Udenrigsministeriet): Report to the European Affairs Committee of Parliament on items of the agenda of the JHA Council of 28-29 May, 13.5.98; Agence Europe, 27.05.98; 28.05.98; 29.05.98; Statewatch (London), vol 8, no 3 & 4, August 98; Report to the Council on the implementation of the Council Resolution of 9 June 1997 on the exchange of DNA analysis results, Brussels, 7.4.98, 7471/98, Limite, Enfopol 47.