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EU: Council objects to Commission report which "names and shames" governments

28 March 2012

"the habit has been not to "name and shame"" governments which fail to implement decisions correctly (Council Presidency)

The Luxembourg Presidency of the Council of the European Union has sent a report to the Justice and Home Affairs Council (JHA,now being re-named as JLS) questioning the European Commission's role in evaluating member states (the 25 governments) implementation of measures.

The issue arose after the Commission issued an evaluation report on the "transposition" of the Framework Decision on Joint Investigative Teams which detailed national governments' failure to implement the Decision (see Statewatch's previous story, 3 February below). Their report concluded that:

"only one Member State adopted transposing measures which are fully compliant with the Framework Decision (Spain)"

The Presidency report, dated 9 February, says that it was the practice to discuss implementation reports by the Commission at working party level:

"on the basis of the report and a paper drawn up by the Presidency where the habit has been not to "name and shame"... or because the Commission and the Member State concerned is not in agreement whether the Member State has implemented the Framework Decision correctly" (emphasis added)

The "Hague Programme" (3.2) calls for:

"a system providing for objective and impartial evaluation of the implementation of EU policies in the field"

The Presidency report says there are two kinds of evaluation, ones on the "transposition of legal instruments" and the other on "how member states cooperate with each other in practice" - to the outsider both concern implementation: first to properly implement at the national level into legislation, the second the practice. Reports on both are clearly needed if there is to be any accountability.

The report calls for "the advice of Ministers", via permanent delegations based in Brussels, on how to proceed in future and to effect a "system of implementation of decisions in the JLS area".

The options presented asked whether delegations are "content" that "the Council simply [takes] note of Commission reports" or should implementation reports by "discussed by the Council itself?" The Presidency notes however that this might "take too much time of of its [JLS] agenda" and might not be seriously discussed.

The Ministers are posed a number of questions which include: i) should the Commission reports carry out an evaluation of "how each Member State has implemented" Framework Decisions and report to the Council on whether they have fulfilled their task? ii) should the Commission "report both on delays in implementation as well as on quality aspests?" or iii) should "some form of adversarial system be set up which would let the Member State that has been criticised respond?"

Tony Bunyan, Statewatch editor, comments:

"The new Constitution makes a distinction between legislative and non-legislative decision-making (and reporting) and to what extent the latter documents are going to be open and accessible is not yet clear. This issue goes further and would influence the actual content of reports, for example, by not embarrassing national governments by detailing their inaction or malpractice.

The "habit" of not naming and shaming governments has no place in a democratic and accountable Europe"

Source: Note from Presidency to Council: Evaluation reports - orientation debate (EU doc no: 6047/1/05)

EU: Laws on Joint Investigation Teams in a mess
- UK "not complying" with the EU Framework Decision on JITs

Statewatch News Online story filed on 3 February 2005

The European Commission has published a report on the compliance by the 25 EU members states to the Framework Decision on Joint Investigative Teams (COM(2004)858, 7.1.05). Its conclusion is that:

"only one Member State adopted transposing measures which are fully compliant with the Framework Decision (Spain)"

The report opens with the statement that:

"informal teams are already operating"

The initiative to allow for the creation of Joint Investigation Teams (JITs) is based on Article 13 of the 2000 Convention on Mutual Assistance in Criminal Matters - which has only been ratified by eight member states (Denmark, Estonia, Spain, Latvia, Lithunia, the Netherlands, Portugal and Finland). Due to the slow ratification the Framework Decision on JITs was adopted on 13 June 2002 with a deadline for compliance of 1 December 2003.

By August 2004 only fourteen member states had sent relevant legislation, four sent the text of a Bill and two said that a draft was in preparation.

Framework Decisions are binding on member states but leaves to the national authorities the choice of "form and method". The "form" in which member states incorporated the Framework Decision differs greatly. The UK, for example, said it had complied by "means of a Circular" to which the Commission report comments:

"As the circular is not legally binding, the relevant provisions have been considered as not complying with the Framework Decision"

The "method" differs greatly too. Most member state have transposed Article 1 however only two member states (Spain and Austria) have fully transposed Article 1.3 on the "leadership" of JITs, four have transposed some of the powers but eight have not in their legislation. Only three member states have listed specific powers to be given to "seconded members" of JITs (from countries other than the one where the team is operating; Article 1.5 and 1.6).

Article 1.7 deals with the case where a team want investigative measures (surveillance, phone-tapping, search of premises etc) to be carried out in one of the member states comprising the team. For example, a JIT may be operating in France but want the its Italian member to get an "investigative meaure" carried out in that country. At present, and unless repealed, this requires "letters rogatory", namely a formal request. Only three member states have complied with this provision (Spain, Finland and Sweden), indeed most of the enacting national legislation does not deal with it (Denmark, Germany, France, Lithuia, Hungary, Malta, the Netherlands, Austria and Portugal).

Similarly, the provision in Article 1.8 covering requests for assistance (another term for investigative measures) from a member state not participating in the JIT or from a third state (non-EU) have only been fully transposed by Spain and Portugal and other member states "have no relevant legislation in place".

Only Spain, Portugal and Sweden have complied with Article 1.11 governing the "use of the information gathered" and Austria and Finland partially. While the option to allow officials other than from member states, that is from third states, to take part in JITs is provided for by Spain, Latvia, Hungary, Austria, Portuga and Finland.

On criminal liability (Article 2) only six member states have made provision for this and on civil liability (Article 3) only three member states.

Note: A letter rogatory is a formal request from a court in one country to "the appropriate judicial authorities" in another country requesting compulsion of testimony or documentary or other evidence or effect service of process.

This article first appeared in Statewatch bulletin, vol 14 no 6, 2004

Report from the Commission on national measures taken to comply with the Council Framework Decision of 13 June 2002 on Joint Investigation Teams, COM (2005) 858