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Informal EU Justice and Home Affairs Council, 13-14 September 2002

28 March 2012

Informal EU Justice and Home Affairs Council, 13-14 September 2002:  EU rubber stamps work in progress - more cooperation with US; fast-track expulsion of migrants from the EU

Introduction

EU Justice and Home Affairs ministers meeting informally in Copenhagen were joined by US Attorney General John Ashcroft. The Danish presidency reports that progress was made on a number of issues, though closer inspection of the matters discussed suggests that most of the Council conclusions merely acknowledge work already underway. There were, however, new pledges to fast-track proposals to create joint EU-US investigative teams, send refugees back to Afghanistan and introduce 'anti-drugs' clauses into EU aid and trade agreements.

EU-US cooperation on terrorism: Council conclusions

[Conclusions in italics, Statewatch comments in normal type face]

1). An agreement between the European Police Unit, Europol, and the United States providing for the exchange of personal data should be concluded before the end of the year.

This agreement was already scheduled for the end of the year and follows an 'interim' Europol-USA cooperation agreement - excluding the exchange of personal data - that was signed in December 2001. The Europol data protection supervisory body (which was not properly consulted on the agreement in accordance with the Europol Convention) has argued that there is no legal basis for such an agreement in the Convention which only contains provisions for 'full' cooperation agreements. The EU has not yet been able to enter into such an agreement because of the absence of a relevant data protection regime at the federal level in the US. Instead, "the exceptional transmission of personal data without an agreement" has been taking place all year. It should also be pointed out that unlike previous Europol-third state cooperation agreements, the draft text of the Treaty and data protection report to the supervisory body have not been made available to the public or even listed on the Council's register of EU documents.

2). The European Prosecution Unit, Eurojust, and the relevant US authorities should as a matter of priority consider starting up negotiations on similar co-operation agreements.

Eurojust's data protection supervisory body has not yet been set-up so the agency can not yet exchange data or enter into agreements with third-states or agencies to do so. However, Eurojust representatives have held regular meetings with their US counterparts since the 11 September attacks.

3). Substantial progress in the negotiations on an agreement between the European Union and the United States on extradition and mutual legal assistance should be achieved before the end of 2002 in order for the negotiations to be finalised as soon as possible. Apart from ensuring the application of swift and efficient extradition rules the agreement should address new types of mutual legal assistance, such as interrogation by means of video conferences. Fundamental legal principles will of course be observed.

Negotiations on mutual legal assistance treaties between the EU and US are being conducted in secret and despite widespread concern for democratic standards this process looks set to continue (see documentation below). US Attorney-General Ashcroft is quoted as stating "any final deal would be made public to EU citizens", which suggests that the negotiations will continue without public scrutiny or a role for national or the European parliaments until a deal is reached. Before the meeting, Danish minister of justice Lene Espersen told reporters that "no EU country will extradite suspects to the United States" if they risk capital punishment, though earlier discussions exposed by Statewatch suggest that some EU member states may be willing to become accomplices to the death penalty by supplying witnesses and evidence for such trials.

4). The European Union and the United States will continue their close dialogue concerning the negotiations within the UN on a comprehensive convention on international terrorism.

The US has been promoting a UN Convention on terrorism since the attacks.

5). A swift and efficient exchange of operational information on terrorist activities must be ensured as part of the bilateral co-operation between law enforcement authorities in the United States and within the European Union. European and US law enforcement experts should meet on a regular basis in order to share information on threat assessments in relation to terrorism. The co-operation between the European Union and the United States in the field of common features of terrorists as a preventive measure should be developed as soon as possible. The aim should be regularly to share strategic information between law enforcement authorities on common features of terrorists. In order to strengthen and intensify the operational co-operation between European and US law enforcement authorities, regular meetings should be held between representatives of relevant competent authorities involved in the practical and operative co-operation between the Member States of the European Union and the United States. As a first step, US experts will be invited to attend the meeting of the European Judicial Network, which takes place in Aarhus in Denmark, in December. The European Union and the United States will on a regular basis exchange relevant information on law enforcement strategies against terrorism, which have been developed, and on their implementation.

Information is already being exchanged and regular meetings between EU and US law enforcement agencies and policy-makers have been taking place throughout the year. By no means can US attendance of the EJN meeting in December be seen to represent a 'first step'.

6). The United States and the Member States of the European Union will examine the possibilities of setting up as quickly as possible specific joint investigative teams, especially with a view to investigate financing of terrorism, e.g. by drug trafficking, with the participation of law enforcement officers from the United States and one or more Member States of the European Union. The examination will be carried out within the framework of the strategic co-operation between Europol and the United States.

Joint investigation teams, which would see US agents working in the EU member states, are part of the discussions on EU-US mutual legal assistance treaties. As yet there has been no mention of rules governing the civil or criminal liability of team members or to legal rules on their operations. The Council conclusions call for the joint teams to be created 'as quickly as possible' - suggesting that they would preempt the future treaties and exacerbate concerns about judicial and political accountability. Under EU rules on joint investigation teams which are due to enter into force by the end of the year, US agents could participate with the consent of the member states in which the operations are taking place. EU-US negotiations suggest that future judicial cooperation agreements will not be limited to terrorism but will concern crime in general. Proposing joint teams to investigate drug-trafficking may reflect this, especially since no evidence has been produced to suggest that the attacks in America were financed in this way. Conversely, the widely reported increase in heroin production in Afghanistan appears instead to be in the hands of the 'warlords' that supported America's war against the Taliban.

7). The European Union and the United States should systematically share information on security measures introduced in order to prevent terrorism, especially in relation to border control, and on law enforcement initiatives as well as investigation techniques relevant for the fight against terrorism.

Again, such cooperation - which includes advanced discussions on border controls, immigration and asylum policy and cooperation in criminal matters - has been developing rapidly over the past year.

EU expulsion policy

The EU Justice Ministers in Copenhagen also gave public backing to plans to forcibly expel illegal refugees and immigrants. The Commission will present detailed proposals for financing both voluntary repatriation and forced expulsion of unwanted immigrants and it was agreed that around 100,000 Afghan refugees should be sent home as soon as possible as the first test of its repatriation policy. A common list of 'safe third countries' that the member states will refuse asylum applications from is also to be drawn-up. EUobserver.com reports:

The debate on a stricter EU immigration policy received new momentum with the change of government in the Netherlands. If the old government was well-known for their foreigner-friendly policy, then the new centre-right government is pursuing a far more restrictive course. Hilbrand Nawijn, the new minister for foreigner affairs, announced in Copenhagen: "We look at what happens in Denmark and Germany and we want the same."

These developments follow an ambitious work programme of the European Commission and EU Council, in which the normal consultation process has been abandoned in favour of fast-track decision-making. Civil society and parliamentarians have had very little input and it now appears that the "balanced" approach to immigration and asylum policy heralded at the Tampere summit in 1999 is long gone, with the events of 11 September both directly and indirectly encouraging a decisive shift toward a policy relying on coercion, expulsion, and control of entry. 

Fast-track return of Afghan refugees had also been discussed prior to the weekend's meeting and Ruud Lubbers, UN High Commissioner for Refugees, has warned that some areas of Afghanistan remain unsafe. The Council also stated its intention to agree the proposed EC Directive on definition and content of refugee status by the end of the year, six months ahead of the deadline set at the European summit in Seville in June. Agreement on these rules appears necessary since the qualification of refugees is closely related to expulsion procedures where asylum applications are rejected. However, the deadline for agreement on the proposed EC Directive on asylum procedures has not yet been brought forward from December 2003.
 A proposal to charter planes for deportations from multiple EU states was also discussed at the meeting. Quickly dubbed 'deportation class' by critics of EU immigration policy, the planes would be used for both 'voulntary repatriations' and forced expulsions, though the distinction between the two was blurred by French immigration minister Nicolas Sarkozy, quoted in le Figaro newspaper:

"You need to be able to use force to convince people to go voluntarily".

Drug policy

The Danish presidency also issued a statement on EU Drugs policy. 'Anti-drugs' clauses in EU aid and trade agreements are proposed, extending the 'stick-and-carrot' approach used to impose readmission obligations on third states and follows similar calls for 'anti-terrorism' clauses. Justice minister Espersen also made a veiled reference to the Dutch objections to the proposed EU Framework Decision on drug trafficking, which are aimed at protecting the lawful sale of marijuana in coffee-shops:

efforts must be made to ensure that national drug policies are compatible and that the national drug policy in one Member State does not undermine the national drug policies in other Member States. Taking into account the cross-border nature of the drugs problem there is also a need for a certain overall political agreement at the European level on how to address the drugs problem most appropriately.

Political agreement on the Framework Decision, which aims at approximating national criminal law in the area of drug trafficking, should be reached at the Justice and Home Affairs Council meeting in October 2002.

EU enlargement

A final statement concerned the implementation of the Schengen acquis by the candidate states before they can be integrated into the so-called EU "area of freedom, security and justice". Like states who have acceded to the Schengen framework in the past, full application in the new Member States will be verified and determined by the existing member states acting in the Council. One of the requirements is integration into second generation Schengen Information System (SIS II), though since it will not be ready before 2005 none of the new accession states are expected to participate before that date. The EU will draw-up a 'road map' for the implementation and application of the Schengen acquis and and present it to the candidate countries at the joint Justice and Home Affairs ministerial meeting in October 2002.

Documentation

Statewatch

- Immigration and asylum in the EU after 11 September 2001: Analysis

- The “war on freedom and democracy”: a 5,000 word analysis of the effects on civil liberties and democratic culture in the EU by Statewatch editor,Tony Bunyan: Analysis

- Secret EU-US agreement being negotiated: Exclusive Statewatch report

- Expelling migrants from the EU: Fast-track legislation and sham consultation: Report and analysis

- Schengen Information System (SIS II) takes ominous shape: Report

EU documents

"EU-US co-operation in fighting terrorism", Presidency press release, 14.9.02
"Schengen and the enlargement", Presidency press release, 14.9.02
"European action against drugs", Presidency press release, 14.9.02
Meeting documents and discussion papers:
No. 1: "A common understanding of refugee protection"
No. 2: "Integration of third country nationals"
No. 3: "Future Repatriation/Return Programme"
No. 4: "Letter from Danish Immigration & European Affairs Minister Bertel Haarder"
No. 5: "Schengen, enlargement, drugs, EU-US co-operation in fighting terrorism" (all pdf files)
Background on meeting and agenda: Presidency press release 

European press

"Les Quinze envisagent des charters europiens", Philippe Gilie, Le Figaro (16.9.02)

"EU plans rapid return of rejected asylum seekers", EUObserver.com (16.9.02)

"EU and US agree on more co-operation in fight against terrorism", EurActiv.com (16.9.02)

"EU in drive to send home refugees", Financial Times (14.9.02)