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EU: Council capitulates and releases draft EU-US agreements

28 March 2012

- pressure from civil society and parliaments leads to release of draft agreements

- UK parliament demands six weeks to scrutinise agreements

- in April 2002 Statewatch refused access because "the interest of protecting the Council's objectives outweighs the interest in "democratic control""

- drafts confirm that references to the International Criminal Court (ICC) are excluded

- application of EU data protection standards are "precluded"

- FBI and other US agencies to operate in EU in joint investigation teams with full powers of search, surveillance and arrest

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Demands by civil society and parliaments has forced the Council of the European Union to de-classify and release to the public the controversial draft agreements between the EU and the USA on extradition and mutual legal assistance - this should allow the European and national parliaments and civil liberties groups to have an open debate. The contents of the agreements have hardly changed since the February drafts and are analysed below - they contain a number of highly controversial proposals including ones which will undermine EU data protection standards and lead to unaccountable EU-FBI joint investigation teams operating in Europe.

Tony Bunyan, Statewatch editor, comments:

"The EU governments have been forced by civil society, national and European parliaments to formally release the text of the EU-USA agreements - now these sweeping new arrangements and powers can be subject to public and parliamentary debate.

The agreements are said to be about combating terrorism but in fact are primarily concerned with crime in general, joint investigation teams - for which no limits are set down - and the surveillance of "suspects". The lack of scrutiny, accountability and data protection in the draft agreements mean they have no place in a democratic society.

It is time for people and parliaments to rein in the so-called "war on terrorism". As the EU report on fundamental rights said in its conclusions responses to terrorism must be kept to a strict minimum, must be temporary and be targeted in a way that that does not affect other categories of people. These draft agreements do not meet these standards."

The fight to get the draft agreements released for public debate

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In April 2002 Statewatch was refused access to the draft EU-US agreements on extradition and legal cooperation when the Council of the European Union decided that:

“the interest of protecting the Council’s objectives outweighs the interest in democratic control”

In August 2002 Statewatch published on the internet a leaked version of the first draft of the proposed EU-USA agreements and on 9 April 2003 Statewatch published the February 2003 drafts. In February and March the French parliament drew up a report but did not release the contents of the draft agreement. The UK parliaments scrutiny committees were sent copies but only on the condition that they did not publish them or a report on the issues raised - they rejected these Home Office conditions as an arbitrary limit on their powers and the denial of a proper, open, public debate (see: Report and documentation)

Moreover, at the EU level COREPER (the permanent committee of representatives of the 15 governments) agreed a report (dated 15 April) on the procedure to be followed for the signing and adoption of the agreements: 8296/1/03 (Word) 8296/1/03 (pdf). The report shows that the conflict between confidentiality and the need for scrutiny by national parliaments (and therefore for a public debate) was raised by "several delegations". The Council, through COREPER, therefore agreed there should be two stages: the first to authorise the signing of the agreement as it stands at the meeting of the Justice and Home Affairs Council on 8 May in Brussels, the second to publish the Decision to sign with the text attached after the 8 May meeting and after the USA had agreed the final text - this partly involved agreement of the US government and partly the fact that such agreements have to be scrutinised by the US Senate and Congress.

The Council of the European Union therefore found itself in the invidious position that the US Senate and Congress was to be given the right of scrutiny in the normal way but the European Parliament (which does not even have to be consulted on international agreement under Article 24 of the Treaty on European Union) and national parliaments were being told to keep the texts secret. The matter came to a head because the draft texts were being widely downloaded from the Statewatch website and further circulated, the European Parliament was demanding to be officially consulted and the UK parliamentary scrutiny committees sent an unprecedented letter to the Greek Presidency of the Council.

Unprecedented joint letter from UK parliament scrutiny committees to the EU

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UK parliament's Select Committee on the European Union (House of Lords) and the Europe Scrutiny Committee (House of Commons) having been told by the UK Home Office that they could not conduct their powers of scrutiny of the agreements in the normal constitutional way - the calling of expert evidence and witnesses, public hearing and a public final report including the full-text of the agreements - took the unprecedented step to go over the head of the government and write directly to the Presidency of the Council (Greece): Joint letter

Their letter, dated, 10 April, says that they had problems carrying out their scrutiny role because the draft agreements:

"are at present classified confidential. This inhibits the parliamentary scrutiny process"

The chairs of the two committees asked the Presidency to:

"We therefore invite you to supply to this Parliament and to all the parliaments in the Union copies of the draft Agreements so that they can undertake scrutiny of them "in an appropriate manner", namely publicly and meaningfully and with sufficient time to consider the constitutional, legal and political issues raised by the Agreements.

We also propose that, consistent with the spirit of the Protocol on the Role of National Parliaments annexed to the Treaty of Amsterdam, and of the Draft Protocol on National Parliaments presently being discussed in the Convention on the Future of Europe, national parliaments be allowed six weeks to consider the draft Agreements."

Analysis of the EU-USA agreement on extradition

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The scope of the draft agreement between the EU and the USA on extradition introduces a sentence threshold not a list of offences.

(Article 4) The agreement will apply to any suspected offence which carries a prison sentence of one year or more - an exceptionally low standard for the arrest and deportation of a suspect to another continent. This extends to an attempted offence, conspiracy or participation and to "any other offence specified in the request" if this is also punishable by a one year sentence - thus an extradition request could contain a "shopping list" of suspected offences meeting a very low threshold.

(Article 5) Requests for extradition will be through "diplomatic" channels but requests for "provisional arrest" can be made between Ministries of Justice (Article 6) whereby a person is arrested and held for a "hearing" before being extradited.

(Article 9) People already charged with an offence and whose case is before a court in the EU or who are in prison in the EU can be extradited for trial in the USA (Article 9: "Temporary surrender").

It is the draft (Article 10) on requests for extradition which led to the suspension of negotiations. This contains the simple statement that requests for extradition received by one EU member state from another member state falls under the European arrest warrant which not only means that extradition is virtually automatic (without legal processes examining the justifiability of the grounds for removal), it also allows for requests for search and seizure of evidence from the property of the suspected person. The US side asked to be treated the same way as an EU member state, the EU side said that this was almost impossible, the US side insisted, so the negotiations have been put on hold. The Article makes no mention of Special Courts (Military Tribunals).

(Article 11) If a person consents to extradition ("simplified extradition") then they can be handed over "without further proceedings".

(Article 12) Both the USA and the EU agree to "suspects in transit", that is, a suspect can come through either state on their way to a third state. This covers also people coming from third states.

(Article 13) On the sensitive issue of capital punishment the draft agreement was that extradition can be granted on "condition that the death penalty shall not be imposed on the person sought" or if this condition cannot be met on "condition that the death penalty if imposed shall not be carried out". If the requesting state (ie: the USA) does not accept these conditions: "the request for extradition may be denied" (emphasis added) - which is hardly cast-iron compliance with the ECHR. Moreover, the issue of the supplying of evidence to the USA by EU member states in cases where the death penalty may result is not addressed.

(Article 16) The agreement will "apply to offences committed before as well as after it enters into force". It will thus be retrospective without any time limit.

Analysis of the agreement on mutual legal assistance

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The draft EU-US agreement on mutual legal assistance covers a range of areas of cooperation from the exchange of banking information to joint investigation teams. Its scope is very broad and general thus, for example, "mutual assistance shall be afforded to national administrative authorities investigating" matters for a criminal prosecution. (Article 8) could include requests for surveillance or the interception of communications (in conjunction with Article 5).

This agreement will apply to all EU member states even those which do not have bilateral agreements with the USA or who do not have agreements on the provisions of this agreement.

(Article 3) says the agreement will apply to all EU Member States (including those who join).

(Article 4) will allow the USA to request banking information and effectively "extends the provisions of the Protocol to the EU Mutual Legal Assistance Convention of 2000 to the USA" (Home Office letter)

They can ask an EU state to:

"ascertain if the banks located in its territory possess information on whether an identified natural or legal person suspected of or charged with a criminal offence is the holder of a bank account or accounts"

Request are to be made between "central authorities" in the EU Member States and "national authorities in the United States" - potentially through "Financial Intelligence Units".

Requests for banking information can apply to any alleged crime. On an ad hoc basis a state can limit the provision of information to offences "under the laws of both the requested and requesting states" and/or to "offences carrying a minimum of a four year sentence". However, these limitations do not apply to accounts "associated with terrorist activity" nor where there are a series of "serious criminal activities" punishable under the law of both states.

(Article 5) Article 5 covers the setting up of EU-US joint investigative teams and says:

"The Contracting Parties shall, to the extent that they have already not done so, take such measures as may be necessary to enable joint investigative teams to be established and operated in the respective territories of the United States and each [EU] Member State, for the purpose of facilitating criminal investigations or prosecutions involving the United States and one or more Member States.

The procedures under which the team is to operate, such as its composition, duration, location, organisation, functions, purpose and the participation of team members of a State in investigative activities taking place in another State's territory shall be as agreed between the competent authorities concerned.

The competent authorities concerned shall communicate directly for the purposes of the establishment and operation of such teams except that where the exceptional complexity, broad scope, or other circumstances involved are deemed to require more central coordination as to some or all aspects, the States may agree upon other appropriate channels of communication to that end.

Where the joint investigative team needs investigative measures to be taken in one of the States setting up the team, a member of the team of the State may request its own competent authorities to take those measures without the other States have to submit a request for mutual legal assistance. The required legal standard for obtaining the measure in that State shall be the standard applicable to its domestic investigative activities."

Commentary: joint investigative teams

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1. The draft article on joint investigative teams says that the contracting parties shall take measures to establish them:

"to the extent they have already not done so"

which suggests that a number of joint investigative teams have already been set up and are operational.

2. Joint investigation teams will be self-regulating, their composition, functions and purpose will not be laid down and subject to any democratic scrutiny. There is no mention of legal liability or judicial review for actions taken by US agents nor members of these teams drawn from EU member states.

3. EU law enforcement officers in the joint teams from the state where the operation is being conducted will be allowed to circumvent formal requests for mutual assistance by directly requesting surveillance by other national agencies, the interception of telecommunications, search warrants, arrest and detention. No mechanisms for accountability are set out.

4. As the composition of the teams is left entirely to officials in the EU and the USA - and their scope extends beyond crime to include terrorism and internal security - they could be comprised of police, customs, immigration and drugs agents plus internal security agencies (like MI5, the FBI and CIA) - and the could operate as free-ranging anti-terrorist or anti-protestor squads.

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Under Article 7 requests for "mutual legal assistance", for example, telecommunications surveillance or search of home or office can be made by fax or e-mail. This is only to require "formal confirmation" when "required by the requested state" - so the norm is likely not to require formal confirmation.

Article 8 extends the concept of mutual assistance beyond that of the law enforcement agencies to "administrative" or "regulatory" authorities.

Article 9 covers the so-called "extensive" data protection clause. In total it reads as follows:

Article 9: Limitations on the use to protect personal and other data (see footnote A:)

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1. The requesting State may use any evidence or information obtained from the
requested State:

(a) for the purpose of its criminal investigations and proceedings;
(b) for preventing an immediate and serious threat to its public security;
(c) in its non-criminal judicial or administrative proceedings directly related to investigations or proceedings:
i. set forth in subparagraph (a)
ii. for which mutual legal assistance was rendered under Article 8;
(d) for any other purpose, if the information or evidence has been made public within the framework of proceedings for which they were transmitted, or in any of the situations described in subparagraphs (a), (b) and (c); and
(e) for any other purpose, only with the prior consent of the requested State.

[There follows two critical options of Article 9.2]

2. a. This Article shall not prejudice the ability of the requested State to impose additional conditions in a particular case where the particular request for assistance could not be complied with in the absence of such conditions. Where additional conditions have been imposed in accordance with this paragraph, the requested State may require the requesting State to give information on the use made of the evidence or information.

b. Generic restrictions with respect to the legal standards of the requesting State for processing personal data may not be imposed by the requested State as a condition under subparagraph (a) to providing evidence or information.

3. Where, following disclosure to the requesting State, the requested State becomes aware of circumstances that may cause it to seek an additional condition in a particular case, the requested State may consult with the requesting State to determine the extent to which the evidence and information can be protected.

4. A requested State may apply the use limitation provision of the applicable bilateral mutual legal assistance treaty in lieu of the present article, where doing so will result in less restriction on the use of information and evidence than provided for in this article.

5. Where a bilateral mutual legal assistance treaty in force between the United States of America and a Member State on the date of signature of this Agreement, permits limitation of the obligation to provide assistance with respect to certain tax offences, the Member State concerned may indicate, in its exchange of written instruments with the United States described in Article 3, paragraph 2, that, with respect to such offences, it will continue to apply the use limitation provision of that treaty. [Footnote to Article 9.5: This paragraph is intended to apply solely to Luxembourg].

Footnote A: The Contracting Parties will exchange diplomatic notes to explain that subparagraph 2b should be construed in the sense of paragraph 269 of the Cybercrime Convention Explanatory Report. Paragraph 269 in the Cybercrime Convention Explanatory Report says:

"269. In line with this approach, it was understood that apart from those grounds set out in Article 28, refusal of assistance on data protection grounds may be invoked only in exceptional cases. Such a situation could arise if, upon balancing the important interests involved in the particular case (on the one hand, public interests, including the sound administration of justice and, on the other hand, privacy interests), furnishing the specific data sought by the requesting Party would raise difficulties so fundamental as to be considered by the requested Party to fall within the essential interests ground of refusal. A broad, categorical, or systematic application of data protection principles to refuse cooperation is therefore precluded. Thus, the fact the Parties concerned have different systems of protecting the privacy of data (such as that the requesting Party does not have the equivalent of a specialised data protection authority) or have different means of protecting personal data (such as that the requesting Party uses means other than the process of deletion to protect the privacy or the accuracy of the personal data received by law enforcement authorities), do not as such constitute grounds for refusal. Before invoking "essential interests" as a basis for refusing co-operation, the requested Party should instead attempt to place conditions which would allow the transfer of the data. (see Article 27, paragraph 6 and paragraph 271 of this report)."

Commentary: data protection

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1. The data protection provisions, such as they are, in paragraph 2 offer two alternatives: the first allows requested states to impose restrictions on the use of information and require information on the use made of the information supplied, the second, allows for no such restrictions (in this instance, the fact that the USA does not have a data protection law cannot be used as an excuse for not supplying information).

2. The scope of information to be exchanged is extensive, for the purpose of any criminal investigation, threats to public security, "non-criminal judicial or administrative proceedings", for "any other purpose" if it covers the former categories, and for "any other purpose" with the prior consent of the requested state.

3. Where a bilateral agreement with the USA would allow "less restriction on the use of information and evidence" then it may be used.

4. No rights of access to data held or rights of correction and deletion are included. Rights expressly guaranteed by the EU Charter on Fundamental Rights and the EU Data Protection Directive.

5. No conditions on who can have access to the information supplied by EU states to the USA are included.

6. No conditions are set out to prohibit "added value" or "intelligence" or unfounded suspicions being added are set out.

7. No conditions are set out prohibiting passing information to third parties.

In short, there are no effective data protection provisions worth speaking of and nothing to ensure that the considerable body of EU data protection legislation is respected.

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Article 10 says that a request and its contents should be kept confidential which impacts on data protection above and also makes it impossible to have any independent scrutiny of the implementation of the agreement.

Article 12 says that the scope of the agreement:

"shall apply to offences committed before as well as after it enters into force"

In short it is retrospective without time limit - unlike, for example, the International Criminal Court.

Documentation

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1. Draft agreement between the European Union and the United States of America on extradition and on mutual legal assistance, 8295/1/03, 2.5.03.

2. Procedure regarding the draft Agreements on judicial cooperation with the USA: 8296/1/03 (Word) 8296/1/03 (pdf)

3. Text of the letter from the UK parliament's Select Committee on the European Union (House of Lords) and the Europe Scrutiny Committee (House of Commons) to the Greek Presidency of the Council of the European Union: Joint letter

Earlier correspondence: Letter from Home Office Minister, Bob Ainsworth, to Select Committee on the European Union, 27 March 2003: Home Office letter (pdf) and Letter from Lord Grenfell, chair of the Select Committee on the European Union to the Home Office Minister, 3 April 2003: Letter (Word)

4. Statewatch exclusive reports in April 2003:

EU-USA agreements - the drafts on the table: Full report and documentation
- two agreements on extradition and mutual legal assistance being negotiated in secret
- extradition to USA to apply to any suspected offences bringing just a one year sentence
- USA successfully opposed any reference to the International Criminal Court or to Special Courts (Military Tribunals)
- "A broad, categorical, or systematic application of data protection principles to refuse cooperation is.. precluded"
- FBI and other US agencies to operate in EU in joint investigation teams with full powers of search, surveillance and arrest

EU-USA and UK-USA: Full report and documentation
UK parliament Committee refuses to scrutinise agreements in secret
UK agrees new treaty with USA on extradition
UK and USA prepare for "simultaneous attacks"

5. Statewatch exclusive report in August 2002

EU-US agreement being negotiated: Special Statewatch Report
Secret agreement on criminal matters, investigative procedures and joint teams being negotiated without the the European or national parliaments being consulted. Statewatch refused access to full-text of document because: “the interest of protecting the Council’s objectives outweighs the interest in “democratic control”"