EU LAW-MAKING AFTER AMSTERDAM: THE EXAMPLE OF EURODAC
Since the entry into force of the 1997 Amsterdam Treaty, asylum and immigration matters and some other items of Justice and Home Affairs (JHA) cooperation are no longer dealt with within the intergovernmental framework of the "Third Pillar" (as established by Title VI of the 1992 Maastricht Treaty on European Union (TEU)), but within "First Pillar" Community decision-making in accordance with the new Title IV of the Treaty establishing the European Community (TEC).
Considering the ongoing work on a Eurodac Regulation, this article examines the established and possible effects of this shift of EU decision-making frameworks on parliamentary participation and control, and on the substance of legislation.
The first new mechanism in the field of asylum and immigration to be set up on the basis of an instrument under the TEC is the Eurodac fingerprint system. Until late last year, the system was meant to be set up on the basis of an (intergovernmental) EU Convention, but in July the Commission presented a draft Community Regulation establishing Eurodac.
This shift of instrument did not lead to any substantial changes in the planned scope of Eurodac (for details on the draft Convention and protocol, see FECL No.58, p.13: "JHA Council meeting, 27-28 May"). The draft Resolution still provides for obligatory fingerprinting of all asylum seekers and certain categories of illegal aliens, from the age of 14. Council minutes attached to the Regulation also states that:
"the obligation to take fingerprints of aliens apprehended "in connection with the irregular crossing of an external border" is not limited to the external border itself. This provision also covers cases where an alien is apprehended beyond the external border, where he/she is still en route and there is no doubt that he/she crossed the external border irregularly. This could be the case, for example, where, subsequently to the crossing of the external border, an alien on board a (high speed) train is detected during on board checks, or where an alien transported in a sealed commercial vehicle is apprehended at the moment of disembarkation from the vehicle".
This Council statement highlights a trend towards extending "external border controls" far behind the actual borders.
Community law-making: more transparency and parliamentary control?
According to a view that is still widespread, the partial shift of JHA cooperation to Community legislation implies more transparency in decision-making and greater powers for parliaments in EU law-making.
However, such expectations amount to wishful thinking. This is strikingly illustrated by the ongoing process of establishing the Eurodac Regulation.
As long as work on Eurodac was carried out in the framework of the intergovernmental Third Pillar, neither the European Parliament (EP) nor the parliaments of the Member States had any real possibility of keeping informed, let alone impacting the lengthy process of drawing up and negotiating the Convention to be approved by the Member States. As usual, the Council and Member States' governments persistently denied full and timely access to relevant draft documents and Member States' positions. The EP's rights were limited to "asking questions" and making proposals to the Council, which seldom bothered to give satisfactory answers or to take into consideration the views of the EP.
As to national parliaments, their - as experience shows - rather theoretical participation in the decision-making process was limited to the possibility of refusing the ratification of a Convention at a time when it had already been agreed to and signed by their governments. They had no possibility of influencing the decisive law-making process preceding the signing of a Convention.
Nonetheless, the obligation of ratification did still allow national parliaments to exert some pressure on their governments by explicitly or implicitly threatening to reject ratification or by simply delaying ratification.
In practice, no EU Member State Parliament ever refused to ratify a Third Pillar intergovernmental agreement in the long run, but uncompleted ratification by all Member States did regularly and massively delay the entry into force of Conventions whose impact on human rights and civil liberties rather systematically tended to be negative. Thus, the late implementation of Conventions such as the Dublin Convention, the 1996 Convention on Extraditions and the Europol Convention acted as a powerful brake on the pursuit of very questionable JHA policies.
To sum it up, the possibility of obstructing the implementation of controversial EU JHA policy measures by delaying ratification as long as possible was an element of democratic control, no matter how limited, which remained under the 1992 Maastricht Treaty.
The Council and, especially, the powerful bodies of civil servants (the K.4 Committee and its subgroups) tasked with coordinating the Council's work and preparing its decisions, soon became painfully aware of the ratification process as an annoying obstacle to swift executive government and have therefore long been looking for ways to avoid, as far as possible, the instrument of Conventions.
With the entry into force of the Amsterdam Treaty (EU Consolidated Treaties), their concerns have been, at least partly, met.
Indeed, in the field of JHA cooperation, the Amsterdam Treaty provides for four instruments of legislation with binding effect upon the Member States and no need for national ratification procedures:
- Conventions, as provided by Title VI of the TEU. In order to speed up their implementation, "conventions shall, once adopted by at least half of the Member States, enter into force for those Member States" (Art. 34.2(d), TEU).
- "framework decisions" (intergovernmental) established under Title VI of the TEU on police and judicial cooperation in criminal matters. A framework decision is "binding upon the Member States as to the result achieved but shall leave to the national authorities the choice of form and methods" (Art. 34.2(b), TEU).
- "Regulations" (Community law). A Regulation has "general application" and is "binding in its entirety and directly applicable in all Member States" (Art. 249, TEC).
- "Directives" (Community law). They have exactly the same legal effect upon the Member States concerned as the "framework decision" (Art. 249, TEC).
Title IV TEC (on asylum, immigration, and certain other items of Justice cooperation) sets out a number of "measures" to be decided by the Council within the five years following the entry into force of the Amsterdam Treaty. Among them are "measures" establishing "criteria and mechanisms" for determining the Member State responsible for considering an asylum application. The Eurodac system clearly is a mechanism to this end.
There has been some confusion regarding the term "measures". Indeed, the Amsterdam Treaty does not specify which instrument of decision-making available to the Council should be used in achieving a particular "measure" set out in the Treaty.
The instruments provided by the TEC are: Regulations, Directives, Decisions, Recommendations and Opinions (Art. 249, TEC). It is up to the Council and to the Commission (and not to the EP) to choose the instrument most suitable to the character of the "measure" in question.
In the case of Eurodac, the Regulation was chosen - for obvious reasons: the Regulation is the strongest instrument of centralised Community law-making, since it is legally binding upon and directly applicable in all Member States participating in the measure (the UK, Ireland and Denmark having the choice of "opting in"). Regulations cannot be blocked or delayed by national parliaments, and Member States have no choice of "forms and methods" used to implement the measure.
A stronger say for the European Parliament?
Is this loss of parliamentary control "compensated" by a stronger say by the EP and national parliaments in the drawing up and adoption of Council regulations? The answer is no.
The rules of decision-making under Title IV, TEC are complex, since one has to distinguish between rules applicable during the first five years following the entry into force of the Amsterdam Treaty, and those to be applied after this transitional period (provided that the Council makes a unanimous decision to that end!).
What is clear, however, is that the EP has not been granted any powers to amend or block legislation by the Council - either during or after the transitional period. The Council must only consult the EP prior to adopting a "measure". An exception to this rule is provided for just two specific items: after the 5-year period, based on a unanimous Council act, the EP is to be granted the right, under the so-called "codecision procedure", to amend or block proposed legislation pertaining to... "the procedures and conditions for issuing visas by Member States" and "rules on a uniform visa" (see Art.62, TEC).
The codecision procedure
As a matter of fact, even under the codecision procedure, the EP remains a parliament with clipped wings, with few possibilities of effectively opposing Council acts. Indeed, while the approval of a Council act requires only a simple majority vote, the rejection or amendment of an act by the EP requires "an absolute majority of its component members" (Art. 251, TEC). Does it need to be said that majority votes of this extent are nearly impossible to obtain in a body whose very architecture was designed from the beginning with a view to paralysing it? Gigantic, clumsy, disunited, plagued by chaotic and bureaucratic work conditions, the EP is something of a modern times' tower of Babylon - a tower on wheels enabling it to shuttle hectically between Brussels and Strasbourg...
Opinion of the EP ignored
In the course of the consultation process regarding the establishment of Eurodac, neither the Council nor the Commission have to date taken into account the opinion of the Parliament. In April, the EP rejected by a narrow majority the extension of the use of Eurodac to categories of aliens other than asylum seekers. Yet, as if nothing had happened, in May, the Commission presented its proposal for a Regulation which, in substance, was almost identical to the preceding draft Convention establishing Eurodac and incorporated the provisions of the draft protocol extending the system's use to "illegal" immigrants .
EP proposes amendments to Eurodac Regulation
However, the shift of instruments (from a Convention to a Regulation) required another consultation of the EP. In the meantime, the political composition of the Parliament had changed as a result of the 1999 elections. On 18 November, the EP approved the Commissions proposal for a Regulation "as amended by the Parliament". The proposed amendments would not change anything in the essence of the Regulation, but would water down some of its most controversial provisions. For example, the minimum age of aliens whose fingerprints may be communicated to Eurodac would be raised from 14 to 18 years, and personal data would have to be erased not just if the alien concerned has been granted citizenship by a Member State (as provided for by the Commission proposal), but as soon as he/she obtains refugee status or some other form of protection or legal stay. Finally, the communication of information stored in the Eurodac system to authorities of third countries would be allowed only upon prior written authorisation by the Joint Supervisory Authority.
In its Resolution of 18 November, the EP calls on the Commission to change its proposal in accordance with the amendments proposed by the Parliament, and on the Council to "inform the Parliament if it intends to depart from the text approved by the Parliament".
Adoption delayed... thanks to Gibraltar
While this is being written, a reaction from the Council is still pending. Nothing in the Conclusions of the JHA meeting of 2-3 December suggests that the Council intends to consider any of the changes proposed by the EP. The fact that the Regulation has still not been adopted by the Council, despite solemn declarations that this should happen before the end of the year, appears to be due to disagreement within the Council on the territorial scope of the Regulation (Spanish-British dispute over Gibraltar) and to the Commission's disagreement with the procedure for approving implementing measures of the Regulation agreed by the JHA Council at its meeting of 2-3 December. The Commission wants a regulatory committee under the Commission to be responsible for all implementing measures, while the Council (upon demand of France, Germany and Austria) wants certain implementing powers affecting the interests of the Member States to be reserved for the Council. Since this implies a substantial amendment of the draft regulation, the Council decided to reconsult the EP on this particular issue. This means that the Eurodac Regulation will not be formally adopted before early next year. The Regulation will immediately apply to Ireland and the UK who have given notice of their wish to join Eurodac. Denmark is likely to participate in Eurodac, since it cannot join a single act in the area of asylum and immigration when it is not Schengen-related, unless it concludes an intergovernmental agreement with the European Union.
By way of conclusion, the Eurodac process shows that decision-making and the implementation of measures within the framework of Title IV, TEC are likely to be speeded up, at the expense of democratic debate and control.
Sources: Proposal for a Council regulation concerning the establishment of 'Eurodac' for the comparison of fingerprints of applicants for asylum and certain other aliens, The Council, 12582/99, limite, Eurodac 19, 5.11.99, with Annex I (text of draft Regulation), Annex II (draft statements to be entered in the Council minutes), Annex III (Comments made within the Eurodac Working Party); Conclusions of the JHA Council, 2-3.12.99; Migration News Sheet, No.201/99-12; Establishment of Eurodac, amendment proposals by the EP and resolution, A-5-0059/1999, adopted 18.11.99; Proposal for a Council regulation (EC) concerning the establishment of "Eurodac"..., explanatory memorandum, Community preparatory acts, 599PC0260.