6 Incorporating the Prüm Treaty
into EU law
| (a)
(28357)
6002/07
—
(b)
(28386)
6220/07
—
(c)
(28409)
6566/07
—
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Draft Council Decision on stepping up cross-border cooperation, particularly in combating terrorism and cross-border crime
Note by the Presidency of the Council: Integration of the Prüm Treaty into the Union Legal Order
Revised draft Decision on stepping up cross-border cooperation, particularly in combating terrorism and cross-border crime
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| Legal base | (a) and(c) Articles 30(1)(a) and (b), 31(1)(a), 32 and 34(2)(c) EU; consultation; unanimity
(b) —
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| Deposited in Parliament | (a) 9 February 2007
(b) 23 February 2007
(c) 27 February 2007
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| Department | Home Office |
| Basis of consideration | EM of 5 March 2007
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | (a) and (b) Cleared
(c) Not cleared; further information requested
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The Prüm Treaty
6.1 In May 2005, seven Member States signed the Treaty of Prüm.[25]
Its purpose is to increase the signatories' effectiveness in preventing
and investigating terrorism and cross-border crime by greater
cooperation. So, for example, the Treaty makes provision for one
signatory ("the receiving State") to have access to
the automated database of another signatory ("the requested
State") to check whether it contains a match for a DNA profile
or a fingerprint.
6.2 Since the Treaty was signed, eight more Member
States have notified their intention to join the Prüm Treaty.[26]
6.3 Article 1(4) of the Treaty requires a proposal
to be made for the Treaty to be incorporated into the law of the
European Union.
The relevant provisions of the EU Treaty
6.4 Title VI of the EU Treaty makes provision for
police and judicial cooperation between Member States in criminal
matters. The following provisions of Title VI are cited as the
legal base for the documents (a) and (c):
- Article 30 (1)(a) and (b),
which states that such cooperation includes operational cooperation
between law enforcement services to prevent and detect crime and
the collection, storage, processing, analysis and exchange of
information, subject to appropriate provisions for the protection
of personal data.
- Article 31(1)(a), which provides that the judicial
cooperation includes facilitating and accelerating cooperation
for the purposes of prosecutions and the enforcement of decisions.
- Article 32, which authorises the Council to specify
the conditions for, and limitations on, operations by the law
enforcement services of one Member State in the territory of another
Member State.
- Article 34(2)(c), which authorises the Council
to adopt decisions for purposes consistent with the objectives
of Title VI of the EU Treaty, excluding the approximation of the
laws of Member States.
The Council Framework Decision on simplifying
the exchange of information and intelligence between law enforcement
authorities
6.5 In December 2006, the Council adopted a Framework
Decision to establish rules for the exchange of "information
and intelligence" between Member States' law enforcement
authorities for the purposes of conducting criminal investigations
or criminal intelligence operations.[27]
Article 2(d) of the Framework Decision defines "information
and intelligence" as;
i) "any type of information or data which
is held by law enforcement authorities; and
ii) any type of information or data which is
held by public authorities or by private entities and which is
available to law enforcement authorities without taking of coercive
measures … ."
Document (a)
6.6 Document (a) was proposed by the seven original
signatories of the Prüm Treaty and by five of those who have
notified their intention to join it. It is the draft of a Decision
which reproduces, with few differences, the provisions of the
Prüm Treaty which relate to police and judicial cooperation
in criminal matters and for which the EU Treaty contains a legal
base.
6.7 Document (a) omits the provisions of the Prüm
Treaty for which there is not a legal base in the EU Treaty. For
example, it omits Article 23 because the Article is about cooperation
to organise joint flights for the removal of illegal immigrants
and other repatriation measures. Immigration is a first pillar
matter and so outside the scope of the EU Treaty.
6.8 Document (a) has been superseded by document
(c), the revised draft of the Decision.
Document (b)
6.9 Document (b) is a note by the German Presidency.
It says that the JHA Council on 15-16 January gave broad support
to the notion of incorporating the Prüm Treaty into EU law.
Accordingly, a committee of senior officials from the Member States
(the Article 36 Committee) had considered what action might be
necessary. As a result, document (a) had been prepared. The Presidency
invited the Council to:
- "reach a political understanding"
that the third pillar provisions of the Prüm Treaty should
be incorporated in EU law;
- welcome the draft Decision (document (a)); and
- ask the Article 36 Committee to carry forward
the work with a view to the adoption of the Decision by the Council
in June 2007.
The Presidency's proposals were endorsed by the Justice
and Home Affairs Council at its meeting on 15-16 February.
Document (c)
6.10 Document (c) has been proposed by all 15 Member
States who have signed the Prüm Treaty or notified their
intention to do so. It is a revised draft of the Decision. The
main provisions are as follows.
6.11 Article 2 requires Member States
to open and keep national DNA analysis files for the investigation
of criminal offences. The processing of data in those files by
a Member State must be done in accordance with the Decision and
in compliance with the national law of the processing state.
6.12 Article 3 provides that Member
States must give any other Member State access to the "reference
data" in their DNA files for the purposes of the investigation
of a crime.[28] The Member
State making the enquiry (the receiving State) is authorised to
make an automated search of the requested State's database to
see if it contains a DNA profile that matches the profile held
in the receiving State's database.
6.13 Article 5 provides that, if a
match is found, the requested State is to provide the receiving
State with personal information about the data subject in accordance
with the national law of the requested State.
6.14 Article 7 requires that, if it
has not got a matching DNA profile for a particular person, the
requested State must collect "cellular material" from
that person and derive from it the person's DNA profile if the
receiving State;
- specifies the purpose for which
the information is required;
- produces an investigation warrant or suitable
statement showing that the legal requirements for collecting the
material would be satisfied if the person were present in the
receiving state's territory; and
- under the law of the requested State, the requirements
for collecting the material are satisfied.
6.15 Articles 8, 9 and 10 make provision
about fingerprint data which is similar to the provision in Articles
2, 3 and 5 about DNA data.
6.16 Article 12 requires requested
States to provide receiving States with access to their vehicle
registration data to obtain information about owners, operators
and vehicles for the purposes of the prevention or investigation
of a crime or the maintenance of public order and security. The
receiving State may make a search only in individual cases and
only if it has the full chassis number or vehicle registration
number.
6.17 Article 13 requires Member States,
either on request or of their own accord, to provide other Member
States with non-personal information for the prevention of criminal
offences and to maintain public order and security at major events
"with a cross-border dimension" and, in particular,
sporting events or meetings of the European Council.
6.18 Article 14 requires Member States
to provide, for the same purposes as in Article 13, personal data
about individuals if there is reason to believe that the person
will commit a criminal offence or pose a threat to public order
and security. Such personal data may be processed only for the
purposes for which it is supplied and for the particular event
concerned. The information must be deleted once the purposes for
which it is supplied have been achieved and, in any event, within
a year.
6.19 Article 16 authorises Member States,
on request or of their own accord, to supply other Member States
with specified personal information because there is reason to
believe that the data subject will commit terrorist offences.
The specified information which may be provided is the data subject's
name and date and place of birth and the reason for the belief
that the person will commit a terrorist offence. The Member State
which supplies the information may attach binding conditions on
the use of the data.
6.20 Article 17 authorises a Member
State to run joint patrols and other joint operations within its
territory with other Member States' law enforcement officers in
order to maintain public order and security and prevent crime.
If its national law allows, the host State may (with the seconding
State's consent) confer "executive powers" on the officers
seconded to the joint operation.
6.21 Article 18 requires Member States
to give each other assistance "in connection with mass gatherings
and similar major events, and serious accidents, by seeking to
prevent criminal offences and maintain public order and security…
."
6.22 Article 19 allows law enforcement
officers seconded to a joint operation in another Member State
to wear their national uniforms and, with the consent of the host
State, to carry weapons, ammunition and equipment.
6.23 Articles 24 to 32 make detailed
provision about the processing and protection of information supplied
under the Decision. For example, they require that the protection
is to be no less than that of Council of Europe Convention 108;
and they give the data subject the right to know that information
about him is held and the right to damages for injury from incorrect
information.
6.24 Article 36 authorises the continuation
of existing, and the making of new, bilateral or multilateral
agreement or arrangements between Member States or between them
and third countries "in so far as such agreements or arrangements
provide for the objectives of this Decision to be extended or
enlarged".
The Government's view
6.25 The Parliamentary Under-Secretary of State at
the Home Office (Joan Ryan) says that the Government broadly welcomes
the proposed Decision as a way to improve practical cooperation
between Member States. The provisions on the exchange of information
about DNA, fingerprints and vehicle registration are consistent
with "the principle of availability", which the Government
supports.[29] The Minister
tells us that "The Presidency has indicated that whilst this
Council Decision [on the incorporation of the Prüm Treaty
into EU law] is under negotiation they will not be tabling for
further discussion the separate Commission proposal for a Framework
Decision on the exchange of information under the principle of
availability".[30]
6.26 Commenting on the Articles on the supply of
information about DNA and fingerprints, the Minister says that
the proposal would not give receiving Member States greater access
to personal information than is currently available through existing
legal assistance arrangements; but the right to make automated
searches for a data match ("hit") would allow the police
to establish more quickly whether relevant information exists
in another Member State. She says that in Germany and Austria,
where parts of the Prüm Treaty are already being implemented,
the operation of the DNA and fingerprint provisions has "resulted
in hits on a large number of murders, rapes and other serious
crimes with a cross-border element".
6.27 The Minister also says that the proposed Articles
on the sharing of information for the prevention of terrorist
offences and for the maintenance of public order would not require
the UK to share any more information than it already does. Article
17, on joint operations, makes the exercise of the power subject
to national law and so would not give foreign police the authority
to act on UK soil. Moreover, Article 19 would not "extend
the powers of foreign police to carry firearms on the UK territory".
6.28 The Minister tells us that:
"We are considering in detail the data protection
provisions in the draft Council Decision and their relationship
with other third pillar instruments, particularly the [proposed]
Data Protection Framework Decision.[31]
We believe that they are largely consistent with UK national law
on the sharing of information with other Member States. It should
also be noted that if the Data Protection Framework Decision comes
into force in the future, it will apply to all third pillar measures."
6.29 Finally, the Minister tells us that it is considering
the financial implications for the UK of implementing the proposed
Decision and she confirms that the German Presidency wishes the
Council to reach agreement on the Decision at the JHA Council
in June.
Conclusion
6.30 We note that the Government broadly supports
the draft Decision as a way to improve police cooperation. We
ask the Minister, therefore, why the Government did not become
a signatory of the Treaty in 2005 or subsequently; and if it would
now wish to become party to the Treaty if the draft Decision were
not adopted.
6.31 We attach much importance to the data protection
provisions of the draft Decision. We should be grateful, therefore,
if the Minister would:
- tell us why the Framework
Decision on the exchange of information and intelligence between
law enforcement authorities,[32]
which was adopted last December, does not make sufficient provision
for police cooperation and why the incorporation of the Treaty
of Prüm is needed, in addition;
- provide us with a full report on the outcome
of the Government's detailed examination of the data protection
provisions of document (c); and
- tell us whether the draft Data Protection
Framework Decision would or would not take precedence over document
(c) if there were a conflict between the data protection Articles
of the two measures; and whether provision will be made to specify
how any such conflicts would be resolved.
6.32 Finally, we ask the Minister to tell us the
outcome of the Governmnent's work on the likely cost to the UK
of implementing the proposed Decision.
6.33 Pending consideration of the further information
for which we have asked, we shall keep document (c) under scrutiny.
Document (a) has been superseded by document (c); document (b)
was considered by the JHA Council in February; and so we clear
both of those documents.
25 The English version refers to the document as a
"Convention"; but the versions in other languages describe
it as a "Treaty". In this Report, we refer to it as
the Prüm Treaty. The signatories were Austria, Belgium, France,
Germany, Luxembourg, the Netherlands and Spain. Back
26
The eight are: Bulgaria, Finland, Italy, Portugal, Romania, Slovakia,
Slovenia and Sweden. Back
27
Council Framework Decision 2006/960/JHA: OJ No. L 386, 29.12.06,
p.89. Back
28
Reference data" means the DNA profile and a reference number;
the reference must not contain any information which would enable
the data subject to be identified. Back
29
The Hague Programme on security, freedom and justice defines the
principle of availability as follows: "throughout the Union,
a law enforcement officer in one Member State who needs information
in order to perform his duties can obtain this from another Member
State and that the law enforcement agency in the other Member
State which holds this information will make it available"
- Conclusions of the European Council on 4-5 November 2004, Annex
1, paragraph 2.1, page 27. Back
30
(27065) 13413/05: see HC 34-xiv (2005-06), para 1 (11 January
2006). Back
31
((26947) 13563/05: see HC 34-xii (2005-06), para25 (30 November
2005). Back
32
Framework Decision 2006/960/JHA. Back
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