JHA COUNCIL MEETING, 27-28 MAY
Temporary protection for Kosovars, Europol's budget, the future of the Eurodac fingerprint-system, readmission agreements with third (non-EU) countries, and interception of telecommunications were among the items on the agenda of the JHA Ministers, meeting in Brussels on 27-28 May.
Conclusions on temporary protection for Kosovars
The Interior Ministers adopted conclusions in which they state that they are "deeply concerned about the humanitarian consequences of the Kosovo crisis", praise Albania for its willingness to receive Kosovo refugees and welcome the "willingness of Member States" to continue to receive "displaced persons", based on assessments of UNHCR and within the limits of Member States' ability. Notably, burden sharing was not even mentioned in the conclusions, which have no binding effect whatsoever. The conclusions no longer referred to a Dutch draft which provided that the examination of asylum applications of Kosovars benefiting from temporary protection may be suspended for a period of three years. In practice, this is unlikely to have much significance, since most Member States are already applying various national schemes effectively preventing Kosovars from having their asylum applications examined as long as they benefit from temporary protection.
Eurodac
Commissioner Anita Gradin presented a Commission proposal for a Community Regulation on Eurodac that would replace the planned Convention and the Protocol extending the use of the fingerprint system to certain categories of illegal aliens.
JHA Ministers had come close to political agreement on the Convention (in December) and on the Protocol (in March) but decided to "freeze" the texts pending a Commission proposal providing for the introduction of Eurodac by way of a Community regulation. While this change of instrument would benefit an early entry into operation of Eurodac (since there will be no time-consuming ratification procedures), it is unlikely to lead to substantial changes as regards the scope of the system.
The draft Convention provides for the compulsory fingerprinting of all persons, from the age of 14, applying for asylum in an EU Member State. Fingerprints of each asylum seekers would be sent to the Eurodac Central Unit without delay, where they would immediately be compared (by automated data-matching) with all fingerprints already stored in the system.
The draft protocol extends the use of Eurodac to two further categories of aliens:
All third country (non-EU) nationals, from the age of 14, caught at crossing a Member State's border illegally and not removed immediately. Member States would send the fingerprints and additional personal data to the Eurodac Central data base without delay where they would be stored but made available only for the purposes of automated matching with the fingerprints of persons who subsequently applied for asylum in one of the Member States. The fingerprints would not be matched with those of asylum seekers or illegal aliens previously registered in the system. Fingerprints would be deleted automatically after 2 years (as against 10 years for asylum applicants). As an exception to this rule, fingerprints would be deleted as soon as the Member State which has sent them becomes aware of the fact that the alien concerned has been granted a stay permit by a Member State or has left EU territory.
Third country nationals, from the age of 14, found without a stay permit inside a Member State. As opposed to category 1, the sending of fingerprints belonging to persons of this category to the Central Unit is not compulsory for the Member States. Fingerprints would only be matched with those of persons having already made an asylum application in another Member State and provided that:
the alien claims to have filed an application for asylum in another Member State but refuses to reveal which one;
- the alien does not seek asylum but objects to being sent back to his country of origin, out of fear for his life;
- the alien attempts to prevent his deportation, e.g. by refusing to cooperate with regard to the determination of his identity.
- Fingerprints sent to the Central Unit would not be compared with fingerprints of aliens caught at illegally crossing a border and would have to be deleted as soon as the requested comparison has been carried out.
It should be noted that the above restrictions concerning the use of fingerprint files, apply only to their processing and exchange within the scope of the Convention. Member States remain owners of the fingerprint-files they send to the Central Unit. As a consequence, they may retrieve their "own" data from Eurodac for any other purpose in compliance with their national law.
European Parliament rejects draft Protocol
On 13 April, the European Parliament (EP), in a notable disavowal of its rapporteur, Austrian MEP Hubert Pirker, rejected the draft Protocol by a narrow majority. Among those opposed to the extension of Eurodac was Irish MEP Niall Andrews (UPE). Speaking during the debate preceding the vote, he strongly emphasised the risks inherent in an ever more extensive use of fingerprinting: "Instead of tattooing them, the modern-day Europe is going to identify those who make us feel uncomfortable by fingerprinting. After immigrants, we take on the gypsies, then citizens we do not like the look of. Immigrants and those we feel uncomfortable with in society are branded, as criminals are today". While the rejection of the draft protocol by the Parliament amounts to an important statement of principles, it in no way binds the Council.
Europol
Ministers discussed an additional Europol budget for 1999 and the budget for 2000. The budgets were referred to experts as France opposed a decision before an audit report requested last year is available. Last September, the Council approved the 1999 budget to the amount of 14,991,500 euros. The extension of Europol's remit to terrorism and money forgery entailed demands by Europol for an additional budget. If approved, the total budget 1999 would rise to 18,896,000 euros. The draft budget 2000 provides for a further massive increase to 28,344,000 euros. Among other things, this would allow for an increase of Europol's staff from 139 posts this year to 193 posts in 2000).
The Europol Convention and related texts will take full effect on 1 July. The ratification procedures and the submission of the instruments were completed by all Member States by the end of May. The last Member States to have fulfilled their obligations were Austria, France, Greece and Italy.
Already on 30 April, the Council appointed the Director and the Deputy Directors of Europol. The acting coordinator of EDU/Europol, Jürgen Storbeck, was named Director for a period of five years. The Deputy Directors are Willi Bruggeman, Gilles Leclair and David Lawrence Valls Russel (for five years), and Emanuele Marotta and Georges Rauchs (for three years).
On 12 March, the Council adopted the rules governing the transmission of personal data by Europol to third States (non EU-States) and third bodies. As a rule, Europol may transmit personal data only on the basis of an agreement between Europol and a third State or body. The Council, acting unanimously, may determine the third States and non-EU-related bodies with which agreements are to be negotiated. Agreements may be concluded only after unanimous approval by the Council. However, "exceptionally" personal data may also be transmitted without a prior agreement, where the Director of Europol considers transmission to be "absolutely necessary" either "to safeguard the essential interests of the member States concerned", or, "in the interests of preventing imminent danger associated with crime". The transmission of personal data revealing racial origin, political opinions or religious or other beliefs, or concerning health and sexual life shall be limited to "absolutely necessary cases".
There appears to be wide support among Member State governments for the further expansion of Europol. Commenting on the implications of the Amsterdam Treaty on the eve of its entry into force, the German Foreign Minister and acting EU-President Joschka Fischer left no doubt that Europol is to become a "police authority with operational powers".
Mutual Assistance in Criminal Matters
Little progress was made on the draft Convention on Mutual Assistance in Criminal Matters (CMACM). The main obstacle still lies in the draft rules on interception of telecommunications. The question is whether countries with a ground station run by a provider of satellite-based telecommunication (Member State A) must be consulted over an interception decided by Member State B and aimed against a suspect staying there or in some other Member State (C).
France will not demand to be consulted in such cases, but Italy is said to be hesitant about accepting interceptions of this kind without prior request. Finally, British law does not distinguish in the same way continental countries do between interception for intelligence purposes and interception for law enforcement purposes. Thus, the British secret service also carries out interceptions for criminal investigation purposes. Accordingly, British authorities want to be able to carry out interceptions of satellite-based communications without the need for approval by the country hosting the ground station concerned.
Ministers once again referred the item to the experts.
Readmission agreements
The Amsterdam Treaty gives the Community institutions new powers in the field of immigration and asylum. This has given rise to the question, whether individual Member States or a group of Member States still have the right to conclude readmission agreements with third (non-EU) countries on their own. According to an opinion issued by the Council's Legal Service, any bi-lateral agreement, concluded by all Member States, but outside the framework of Community decision-making, would encroach upon powers conferred by the EC Treaty on the Community. Whether or not Member States acting alone or as a group may still conclude readmission agreements with a third country, depends on an agreement's impact on Community interests such as common immigration policy objectives and common policies on border control. The Legal Service concludes that if readmission agreements are not regarded as "indissolubly linked to the achievement of the Community's immigration-policy objectives", Member States may still conclude readmission agreements with third states, as long as the agreements concerned do not interfere with agreements already concluded by the Community or with internal Community rules. As a result of their "opting out" of the "communitarisation" of asylum and immigration policies, as provided by the Amsterdam Treaty, Denmark, Ireland and the UK will be free to conclude agreements as they wish.
Discussing the issue at their meeting of 27 May, Interior Ministers appeared to agree that the conclusion of readmission agreements with third countries cannot be an exclusive competence of the EU. In the opinion of the Council, Member States must retain the possibility of concluding such agreements whenever the Community has not acted along these lines or lacks a mandate to do so. However, Ministers also agreed that bilateral agreements running counter to Community agreements could no longer be concluded.
Sources: Migration News Sheet (MNS), No.195/99-06; European Parliament, Verbatim report of proceedings , 12.4.99, 13.4.99; Danish Justice and Interior Ministries, Notes to the Parliament's Committee for European Affairs, on the agenda of the JHA Council of 27-28 May, Copenhagen, 12.5.99 and 14.5.99; Council Act of 12 March 1999 adopting the rules governing the transmission of personal data by Europol to third State and third bodies, OJ C088, 30/3/1999 p.0001; Draft Protocol to the Eurodac Convention, 27.10.98, 11868/98 Limite, ASIM 214, EURODAC 7; European Report, 29.5.99; Agence Europe, 21.4.99; 28,4.99, 30.4.99; 26, 27, 28.5.99; 'Intelligence', No.98, 17.5.99; European Voice, 29.4.99; Neue Zürcher Zeitung, 14.4.99.