JHA COUNCIL MEETING OF 24 SEPTEMBER
The crisis in Kosovo, the (slow) progress of work on the Eurodac Convention, the Convention on Mutual Assistance in Criminal Matters, and problems delaying the full entry into operation of Europol were the main items on the agenda of the EU Justice and Home Affairs (JHA) Ministers at their September 24 meeting in Brussels.
Kosovo crisis
The crisis in Kosovo was the main item of the meeting presided by the Austrian Ministers Schlögl (Interior) and Michalek (Justice). Referring to the displacement of between 200,000 and 300,000 civilians as a result of the armed conflict in Kosovo, Interior Minister Schlögl stressed the "risk of a migratory explosion". EU governments are keen to avoid using the term "refugee" when addressing mass-flight inside and from Kosovo, just as they preferred to label Kurdish refugees from Iraq and Turkey as "illegal immigrants", in drawing up the EU Action Plan on immigration from Iraq.
Clearly under the influence of a feared mass-influx of refugees, the Ministers discussed the need for increased "humanitarian assistance" to Kosovo and continued their squabbling over an equitable system of "burden sharing" between the Member States with regard to the reception of refugees. Germany and Austria, the two prime target countries of asylum seekers in recent years, have in particular long complained about what they see as the lack of solidarity of other Member States. At the meeting, the new German Interior Minister Schily advocated a system based on the fair distribution of asylum seekers between the Member States according to a quota system, while his Austrian colleague Schlögl would prefer "compensatory solidarity" in the form of financial aid from the EU to individual Member States coping with particularly large refugee influxes. No decision was taken at the meeting.
Mr Schlögl concluded the discussion on the Kosovo crisis by highlighting proposals made in the controversial Austrian Presidency's Strategy Paper on Immigration and Asylum (see this issue: "EU strategy paper on asylum and immigration: show of 'political muscle'"). The EU, he said, must develop a common strategy vis-à-vis countries of emigration, aimed at reducing migration pressure, and must take stringent action against migrant smugglers. Mr Schlögl seized the opportunity to stress that Austria had no intention to bring the 1951 Geneva Convention into question or limit the right of asylum.
Draft Convention on Mutual Assistance in Criminal Matters (CMACM)
Work on this Convention is still not concluded. The major remaining problems are the provisions in the Convention covering interception of telecommunication. Several Ministers asked for these provisions to be made quite "neutral" or flexible so that future adjustments of interception methods could be made to keep up with technological progress without having to amend the Convention.
Europol
The Presidency expressed regret over the fact that several acts (including, among others, the Protocol on Privileges and Immunities of Europol officials) needed to make Europol operational still had not been ratified by all Member States, or still needed to be approved by the JHA Council. France and Germany disagree on the internal rules which are to govern the work of the Joint Supervisory Body (JSB) established under the Europol Convention to ensure control of Europol's data processing activities. The JSB is to set up a special Complaints Committee which is to handle complaints from individuals against Europol. Germany demands that meetings and deliberations of the JSB and the Complaints Committee be public, unless specific reasons require proceedings behind closed doors. According to the German point of view such "openness" of the JSB is necessary since the JSB is the only body to which citizens can complain about Europol and therefore should have a "court like" character. As opposed to this, France demands that JSB sessions be held behind closed doors as a rule, since openness could result in leaks of classified information to the public. This would inevitably undermine national police authorities' trust in Europol.
As a matter of fact, the German-French row resembles a sham fight. The French seem to ignore the fact that German authorities have developed great skill at home in invoking "specific reasons" justifying departures from the rule of openness and direct access of citizens to their own data. There is no reason to believe that this practice of making the exception the rule would not be resorted to if the JSB was to function according to the German proposal. Thus, one could argue that the French position is more frank. Indeed, the JSB as established under the Europol Convention has nothing to do with a court. Its powers are limited to making recommendations and complaints to the director of Europol, but, like the data protection body set up under the Schengen Convention, the JSB has no powers of enforcement. One of the most crucial defects of the Europol Convention actually consists in the lack of any common judicial body with powers to sanction violations of the rights of individuals by Europol. This defect cannot be remedied by setting up a "court like" body feigning an openness which is effectively prevented by the Europol Convention’s rules on people's access (or non-access) to their own data.
The Council reached a compromise on Europol's budget. In 1999 Europol will have at its disposal 14,991,500 Euros (compared to 6,117,235 ECUs in 1998). An additional 3,9 million Euros are to be spent on the setting up of Europol's computer system, TECS. Moreover, the Ministers agreed on the creation of 50 new posts, bringing the total number of Europol staff to 119.
Eurodac
Work on the Eurodac Convention establishing a common database for fingerprints of asylum seekers and "illegal" immigrants is also progressing more slowly than expected. The JHA Council agreed earlier this year that Eurodac should be expanded to contain not only the fingerprints of all persons seeking asylum in an EU Member State, but also of "illegal immigrants", i.e. third country nationals who have entered EU territory without sufficient travel documents or whose identity has not been established "beyond doubt". However, there is still disagreement on whether fingerprints should be taken anywhere on the EU territory from anybody who entered an EU State "illegally" (as requested by Germany and Austria) or whether fingerprints should be taken only from illegal immigrants stopped in areas close to a border (as suggested by a majority of Member States).
Other unresolved items concern preliminary jurisdiction of the European Court of Justice (ECJ), the territorial scope of the Convention (a recurring problem resulting from the Spanish-British dispute over Gibraltar), the funding and management of Eurodac's Central Unit and the question of whether specific data protection rules should be included in the Eurodac Convention, as requested by Germany and Austria.
Other items
The Council reached political agreement on a Joint Action aimed at facilitating the identification, tracing, freezing, confiscation and seizure of means and proceeds of crime.
Finally, the Ministers discussed the problem of delays in the ratification by Member States of Conventions adopted by the JHA Council. Only two of twelve Conventions are in force (The Europol Convention and the Dublin Convention). None of the others have yet been ratified by all Member State parliaments.
Sources: Notes from the Danish Justice and Interior Ministries to parliament on the items on the agenda of the JHA Council, 11.9.98; Agence Europe, 24.9.98.