EU: Limit placed on background deals
01 September 1995
The meeting of the General Affairs Council of the European Union on 2 October agreed to limit the number of "declarations" attached to EU legislation. This followed the unequivocal opinion of the Council's Legal Service that statements and declarations attached to the minutes of Council meetings which qualify or amend agreed legislation or recommendations:
"have developed in such a way that they now threaten to undermine legal certainty and that in any event they form an absolute impediment to making public Council minutes."
The reference to the publication of Council minutes refers to EU governments' reluctance to make public reservations, and their grounds, which are often attached as "declarations".
The Legal Service's report is scathing about the practice that has developed: "In a number of recent cases the number of statements in the minutes is out of all proportion and their content undermines legal certainty". It says there were 31 statements attached in 1995 to the Common Position of the Council on the data protection directive (which has just been agreed) and 64 statements attached to the Structural Funds reform in 1993.
The report classifies statements into three groups. The first are "statements contradicting or adding to the enacting terms of the legislation in question". It cites decisions of the European Court of Justice, dating back to 1970 and 1986, which say that the Court has "consistently held" that legislative acts have to be made within the published rules and that their meaning cannot be affected by "statements". The Legal Service says such statements "must absolutely not be made", otherwise the Court might find the Council liable for breaching "the principle of legitimate expectations". The second category is "interpretative statements" which should be incorporated into the preamble or text of legislation. As these statements are not made public they cannot be "invoked by or against third parties" and if they did come to light the Court of Justice would not uphold them. Finally, there are "declarations of intent" which present no problems. These might refer to an intention to ask the Commission to carry out a study.
Data protection undermined
The most glaring example of using "statements" to undermine EU legislation concerns the new EU-wide law on data protection which establishes rights for citizens whose personal details are held on computer (it does not cover "third pillar" issues of policing or immigration). The UK government opposed the introduction of this directive but could not block it because under the "first pillar" (economic and social issues) proposals are decided by majority votes. Instead the UK made a series of behind-the-scene deals which were listed in the unpublished minutes of the Council of Ministers.
On 20 February 1995 the Council and Commission adopted an unpublished Common position (an agreed policy statement) which completely undermined a commitment to include personal data held in manual filing systems within 12 years. The statement amended this to read taking all steps that: "do not prove impossible or involve disproportionate effort in terms of costs".
Article 8 of the data protection directive says that member states:
"shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, and the processing of data concerning health or sex life."
Germany wanted to store information on religious beliefs (eg: fundamentalism) and the UK wanted to store information on trade union membership so this was amended in an unpublished Common position. This says the "Council and Commission consider" that each member state could:
"determine more precisely the categories of sensitive data.. considering the legal and sociological context of the country concerned, for example with regard to data on genetics, political membership, physical conditions, personal