TAMPERE SUMMIT: AN EXERCISE IN WINDOW-DRESSING
The declared aim of the extraordinary EU Council-Summit in the Finnish city of Tampere, on 15-16 October, was to bring EU policies in the field of Justice and Home Affairs closer to the citizens of the Union, in particular by developing an "open dialogue with civil society". Yet, seldom have the preparation, agenda and achievements of a European Summit been more opaque than at the Tampere Summit. The only tangible results of the meeting are the sketchy and non-committal Presidency Conclusions. The important decisions regarding the creation of an EU area of "freedom, security and justice" are being made elsewhere - behind locked doors.
Apparently, the prime intention behind the Summit was to stage a PR show rather than to make important decisions. This is obvious from various facts. For example, the Justice and Home Affairs (JHA) Ministers, who are actually responsible for the policy fields on the agenda of the Tampere European Council, were not even invited to the Summit. Hastily cancelled room bookings in some of Tampere's better hotels, shortly before the Summit, indicate that the JHA Ministers' somewhat humiliating exclusion came as a surprise to some of them. They may have found some consolation in the fact that they did not miss a lot by staying at home.
Moreover, except for fairly empty draft agendas issued by the Finnish Presidency, barely any preparatory documents were available on specific items to be addressed by the Tampere Council. Not surprisingly then, the "Conclusions" agreed at the Summit by the 15 Heads of Government were about as cryptic as Delphic oracles. This led to fairly confused reactions from the numerous liberty and human rights NGOs trying to monitor the Summit. Their comments ranged from warm welcome to strong rejection.
The Presidency Conclusions as such give ground to neither the former nor the latter.
First, they have no binding effect whatsoever. So-called "agreement" was reached on "policy orientations and priorities", "political guidelines" and "concrete objectives", most of which have already been set out earlier in the Amsterdam Treaty and different "Action Plans".
Under the pompous heading "Towards a Union of Freedom, Security and Justice: the Tampere Milestones", we are told, among other things, that "those whose circumstances lead them justifiably to seek access to our territory" should be accepted, while "consistent control of external borders" is necessary to "stop illegal immigration and to combat those who organise it and commit related international crimes". Nothing is said about how to distinguish "those whose circumstances lead them justifiably to seek access to our territory" from so-called illegal immigrants. Nothing is said about what would probably be the most effective measure to combat migrant trafficking - i.e. the facilitation of legal entry into "our territory" for "those who justifiably seek access".
Other "milestones" include the effort to reach greater "compatibility" and more "convergence" between the legal systems of the Member States and the solemn statements that the area of freedom, security and justice "should be based on the principles of transparency and democratic control" and that "[w]e must develop an open dialogue with civil society...in order to strengthen citizens' acceptance and support".
Considering the usual lack of transparency surrounding the preparatory work for the Summit and decision-making in the JHA area as a whole, this statement is nothing but a mockery.
The "milestones" are set out somewhat more specifically under four titles:
- a common EU asylum and migration policy;
- a genuine European area of justice;
- a unionwide fight against crime;
- stronger external action.
Common EU asylum and migration policy
Under the sub-title "Partnership with countries of origin" the Conclusions state the need for a "comprehensive approach to migration" with the laudable aim of addressing political, human rights and development issues, improving living conditions and job opportunities, preventing conflicts and consolidating democratic states. To that end, a "greater coherence of internal and external policies of the Union" must be achieved. However, just as the far more specific "Strategy paper" of the Austrian Presidency on asylum an migration (1 July 1998, 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") and the reports and action plans of the High Level Working Group on Asylum and Migration (23 September 1999, see separate article on the reports in this issue), the Presidency Conclusions do not contain any concrete proposals on how to achieve the above laudable objectives.
We are further told that the Council "has agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement" (our italics). First, this implies an acknowledgment (at last) that not all Member States (in the best case) are currently applying the Geneva Convention on Refugees in a "full and inclusive" way, and that people currently are at risk of being sent back to persecution. Secondly, one can only speculate about what the Council actually means by "full and inclusive". Some NGOs (ECRE and others) rushed to welcome the conclusion in question as a commitment of the Council to regard non-State sponsored persecution as a ground for asylum under the Convention. In view of the Tampere Summit, the UNHCR had called on EU governments to agree on an interpretation of the refugee definition under the Geneva Convention that "must take due account of all forms and sources of persecution". "This includes recognition that persecution may be carried out by agents other than the State and that it may take specific forms, including sexual violence against women. Likewise, the refugee definition does not exclude those whose life or liberty is at risk in a country where governmental authority has collapsed".
It is all too well documented that victims of non-State persecution are ineligible for asylum under the asylum laws of leading EU Member States such as France and Germany. Tellingly, a joint Franco-German initiative (later also supported by Britain) on a "new approach" to asylum and immigration, presented on 16-17 September at an informal JHA meeting in Turku (Finland), made no mention whatsoever of any plans of the two countries to move away from their prevailing restrictive interpretation of the Convention. At a press conference during the Tampere Summit, British Home Affairs Minister Jack Straw commented on recent UK court decisions recognising non-state persecution as a ground for protection under the Geneva Convention. According to the London based bulletin Statewatch, Straw told journalists that "our courts adopted a wide definition, I want a narrow definition".
As for the "common European asylum system", it is well known that several Member States are firmly opposed to a European regulation. French Prime Minister Lionel Jospin was quoted by the Brussels-based Migration News Sheet as saying that "decisions concerning the right of asylum must remain within national competence". Accordingly, the Summit did not state a common determination to establish a single Community law on asylum, but merely reaffirmed its intention of pursuing efforts of "approximation" through agreements over minimum standards on various aspects of the asylum procedure.
Consequently, the priorities specified in the Conclusions aim at patchwork approximation through the adoption (within the timetable established by the Amsterdam Treaty) of measures such as:
- a "workable determination" of the State responsible for the examination of an asylum application;
- common standards for "fair and efficient" asylum procedures;
- common minimum conditions of reception of asylum seekers;
- "approximation" of rules on the recognition and content of refugee status; and,
- measures of "subsidiary protection".
The Council should "work towards"... The EU "should" introduce... The Council is "urged" to "step up its efforts to reach agreement"... "Consideration should be given" to... The Commission is "invited to explore the possibilities for"....
Such cautious wording does not suggest great thirst for action. Actually, "prompt action" is urged for only with respect to the finalisation of the Eurodac fingerprint system for asylum seekers and "illegal" immigrants. Thus, hope expressed by some NGOs for a more liberal asylum policy on the EU level seems premature, to say the least.
With respect to immigrants' rights, a "more vigorous integration policy should aim at granting [legal immigrants] rights and obligations comparable to those of EU citizens". "The legal status of third country nationals should be approximated to that of Member States' nationals".Third country nationals with long-term residence permits should be granted similar rights as those enjoyed by EU citizens after having resided in a Member State for "a period of time to be determined". The European Council "endorses the objective" that long-term resident foreigners "should be offered the opportunity to obtain the nationality of the Member State in which they are resident".
Significantly, the Conclusions make no mention of any plans to facilitate legal immigration or to allow irregular immigrants, who have been living in a Member State for years, to obtain legal stay.
As regards the management of migration flows, the Council calls for the development of information campaigns on the "actual possibilities for legal immigration" (i.e. hardly any possibilities, as everybody knows), for the prevention of trafficking in human beings, and for a "common active policy on visas and false documents". All these migration-preventive measures are to be developed "in close cooperation with the countries of origin and transit". The EU should "help" authorities of countries of origin and transit to "strengthen their ability to combat effectively trafficking in human beings and to cope with their readmission obligations towards the Union and the member States". The Council is "invited" to conclude readmission agreements or to include standard clauses in other agreements between the EU and relevant third countries. Shortly after the Summit, the Strategic Committee on Frontiers, Immigration and Asylum issued a draft Council decision on "model readmission clauses".
All this gives an idea of what the "partnership" with countries of origin and transit sought by the Council is really about.
Once again, the Council states its determination to "tackle at its source illegal immigration". And once again, action proposed does not aim to improve the situation in countries of emigration, but to combat trafficking of migrants. "Member States, together with Europol, should direct their efforts to detecting and dismantling the criminal networks involved". External border control is to be tightened through "closer cooperation and mutual technical assistance, especially on maritime borders". The Council particularly welcomes joint Greek-Italian efforts to combat "organised crime, smuggling, and trafficking of persons" in the Adriatic and Ionian seas. In other words, the ongoing hunt for boat people in the Mediterranean sea is bound to become even more reckless.
European "area of justice" and fight against crime
The Summit endorsed the principle of mutual recognition, by the Member States, of judicial decisions (e.g. pre-trial orders) and judgements, as well as approximation of legislation, which "should become the cornerstone of judicial co-operation" within the EU . The Council and the Commission were asked to adopt, by December 2000, a programme of measures to implement the principle of mutual recognition.
With regard to criminal law, the Summit advocated common definitions, incriminations and sanctions for crime types of "particular relevance", such as financial crime, drugs trafficking, trafficking in human beings, sexual exploitation of children, high tech crime and environmental crime. Joint investigative teams (including representatives of Europol) are to be set up "without delay" to combat cross-border crime, in particular drugs and migrant trafficking, and "terrorism".
Europol is likely to play the lead role in such joint investigations. The Summit called for its role to be strengthened "in the near future" by means of "receiving operational data from the Member States and authorising it to ask Member States to initiate, conduct, or coordinate investigations or to create joint investigative teams in certain areas of crime"(our italics). The remit of Europol is, once again, to be extended, this time to "money laundering in general (e.g. tracing, freezing and confiscating funds)". Currently, Europol is only authorised to deal with money-laundering related to drugs.
Moreover, the Summit called for the establishment of a "European Police Chiefs Operational Task Force" to exchange experience (in co-operation with Europol) on current trends in cross-border crime and to contribute to the planning of "joint operative actions". And, once again, the Summit urged Member States to speedily ratify the 1995 and 1996 EU Conventions on extradition. The formal extradition procedure "should be abolished" among the Member States and replaced with a simple transfer, for persons fleeing from justice after having been finally sentenced. "Fast track" extradition procedures as provided for by the Schengen Implementing Agreement should also be considered.
Finally, the Summit called for the setting up of EUROJUST, a unit composed of national prosecutors, magistrates, or "police officers of equivalent competence", detached from each Member State according to its legal system. EUROJUST would be tasked with facilitating the coordination of national prosecuting authorities and with supporting criminal investigations in organised crime cases, notably those investigated by Europol. It would "co-operate closely" with the European Judicial Network, "in particular to simplify the execution of letters rogatory".
Most of these guidelines and political priorities have already been set out in the Amsterdam Treaty, the 1997 Action Plan against organised crime, and the December 1998 Action Plan establishing an area of freedom, security and justice. Their reiteration at the Summit does not make their general focus less questionable.
One of the declared aims of the Summit was to strengthen the rights and freedoms of citizens by improving peoples' access to justice and addressing the "incompatibility or complexity of legal and administrative systems in the Member States". However, the improvements suggested by the Summit relate to minor matters of a technical nature, such as "common minimum standards... for multilingual forms or documents to be used in cross-border cases" or vague calls for minimum standards on the "protection of the victims of crime" (which tend to imply reduced defence rights). All other more specific proposals aim to extend the powers of law enforcement authorities and to remove guarantees of judicial control that are viewed as obstacles to "efficient" cross-border law enforcement. In practice, Europol (which - formally speaking - still does not have operational powers) is likely to soon have an absolutely commanding position - de facto enabling it to decide whether to initiate an investigation or not, and how to run an investigation. Considering Europol's unique means to gather and analyse intelligence and to coordinate investigations on an international level, police and judicial authorities of individual Member States are unlikely to have much influence in the planned joint investigation teams. The description of EUROJUST in the Conclusions strongly suggests that the planned unit of prosecutors is not being conceived as a body which will have a lead role in investigations, but rather as a body subordinated to Europol, tasked with "facilitating" police cooperation. Are prosecutors to become the errand boys of the police in the European "area of justice"?
Finally, while the planned "approximation" of very diverse national laws and procedures, and the principle of "mutual recognition" are likely to facilitate smooth cooperation among the Member States' law enforcement authorities in seeking extraditions, arrests and house searches anywhere in the EU, it is difficult to understand how this should make the prevailing labyrinth of diverse but interacting national legal systems less complex and improve legal security.
EU Charter on fundamental rights
The Summit agreed on the composition and working methods of the Body entrusted with drawing up an EU Charter on fundamental rights. The body will be made of representatives of the Member State governments, national parliaments, the Commission, the European Parliament, and observers from the European Court of Justice and the Council of Europe. The Body "may" invite non-governmental organisations, groups and experts to "give their views". As for the "transparency of proceedings", only documents submitted at hearings of the Body "should be public".
Nothing can be drawn from the Conclusions with regard to the planned scope of the Charter. Human rights and liberty groups have expressed concern that non-EU citizens may be excluded from rights established by the Charter.
Towards a "globalization" of EU Justice and Home Affairs policies?
Under the title "Stronger external action", it is stated that "Justice and Home Affairs concerns must be integrated in the definition and implementation of other Union policies and activities". Full use is to be made of new instruments offered by the Amsterdam Treaty for joint EU action on the international level, such as Common Strategies, Community Agreements and agreements based on Art. 38 of the TEU.
This means that, increasingly, any privileged treatment accorded by the EU Member States to a third country or a group of third countries will be made conditional on their accepting EU dictate in the fields of migration prevention (readmission clauses, border control) and police and justice cooperation. The European area of "freedom, security and justice" is likely to expand quickly beyond the territory of the EU - with the questionable assistance from the authorities in countries like Albania, Turkey, Algeria, Morocco...
Sources: Presidency Conclusions, Tampere European Council, 16.10.99; Letter of the Finnish Ministers of Justice and the Interior to their EU JHA colleagues, 3.9.99, on the discussion of the Tampere Summit agenda at the informal JHGA meeting on 16-17.9.99; letter from the Finnish Prime Minister with a draft agenda for the Tampere Summit (undated, September); Statewatch, vol. 9, no.5 (September-October 99); Migration News Sheet, November 99, No.200/99-11; ECRE: Observations sur les Conclusions de la Présidence du Sommet de Tampere, October 99; EU common strategy on asylum must meet highest standards of refugee protection, UNHCR press release, 8.10.99.