The controversial agreements on extradition and mutual legal assistance between the EU and the USA were signed by both sides in Washington at the EU-US Summit on 25 June (see: Analysis and documentation on EU-US
The controversial agreements on extradition and mutual legal assistance between the EU
and the USA were signed by both sides in Washington at the EU-US Summit on 25 June
(see: Analysis and documentation on EU-US agreements). It was then expected that
the agreements would then be referred to the US Senate and the 15 EU national parliaments
for ratification (though the only choice EU parliaments have is to accept every dot and
comma of the agreements without amendment by passing them into national law or to reject
them – which is highly unlikely).
However, it now transpires that the US Senate “cannot start the ratification process” until
the two “written instruments” (under Article 3.2 of both agreements, see text below) have
been negotiated and signed by all 15 EU governments. The procedure for these “written
instruments” was set out months ago on 9 April 2003 in a draft Council Decision (doc no
8296/03) but at that time there was no urgency. But on 18 June a Note from the Greek
Presidency to the Article 36 Committee said that they had been informed that the US
Senate would have to be given both the two formal agreements and the two “written
instruments” signed by all 15 EU government before they could begin their deliberations.
The two “written instruments” concern EU member states agreeing, in writing, that existing
bilateral agreements between the USA and EU member states continue to apply as set out
in the new agreements.
The procedure agreed by the Council is that although the existing agreements between
individual EU member states and the USA are bilateral (for example, the recently revised
UK-USA agreement): “these negotiations could take place at one time, for example on
the premises of the Council of the European Union in Brussels”
The 18 June Note from the Greek Presidency also says that the US Mission had suggested
“they could come to a meeting of the Article 36 Committee to expound their views” and
instructed the “JHA Counsellors” (experts on justice and home affairs based in the
permanent national delegations in Brussels) to “examine preliminary drafts of such model
written agreements”. This approach was then agreed at the meeting of the Article 36
Committee on 23 June and the issue has been passed over to the Italian Presidency which
started on 1 July.
The European Parliament and national parliaments were only consulted on the contents of
the two formal agreements at the beginning of May and their reports – including many critical
comments – were, as usual, ignored.
Tony Bunyan, Statewatch editor, comments:
“It would appear that the Council of the European Union is intending to draw up
these model “written instruments” for each EU state to sign and then agree them in a
collective closed session without any reference to national parliaments as to their
implications.
Whereas the US Senate will not start its work until all the relevant documents are
before it – including documents (“written instruments”) which EU national
parliaments will not have been consulted on”
Background documentation
1. Procedure regarding the draft Agreements on judicial cooperation with the USA, 9 April
2003: 8296/03 (pdf)
2. Coordination of the Member States’ position regarding the Agreements on judicial
cooperation with the USA, 18 June 2003: 10618/03 (pdf)
3. Coordination of the Member States’ position regarding the Agreements on judicial
cooperation with the USA, 23 June 2003: 10707/03