Memorandum by Professor Elspeth Guild,
Radboud University, Nijmegen, Senior Research Fellow, Centre for
European Policy Studies (CEPS)
1. This inquiry into the Prüm Convention
is particularly timely in light of the German Presidency's moves
to incorporate the Convention, or parts of it into EU law. CEPS
has already produced two analyses of the Prüm Convention
and submitted evidence to the House of Common Home Affairs Committee's
inquiry into the Convention. We will not repeat here the comments
which we have made there.
2. Four main issues arise as regards the
implications of a small number of Member States fixing the policy
on matters of importance for the Member States (1) democracy;
(2) transparency; (3) legality and (4) legitimacy. The EU is founded
on the value of democracy.[1]
3. Democracy: In a democratic system,
decisions on matters of importance are the subject of debate among
all those who participate in the project and are adopted in accordance
with the rules which govern the entity. The fields covered in
the Prüm Convention are indeed of great importance, touching
sensitive questions of access to data across frontiers, irregular
migration and police cooperation, to name just some. All Member
States and the European institutions, most importantly the European
Parliament need to be involved in decision making in these key
areas. The Prüm Convention, however, was drafted and concluded
by a small group of Member States outside any of the established
EU venues. No doubt, had there been agreement among the (now)
EU 27 Member States on the contents of the Convention it would
have been adopted as an EU measure. Clearly there was not such
agreement. Thus to insert the Prüm Convention now as a fait
accompli into the EU legal order raises very serious concerns
about democracy. The methodology employed seems much closer to
oligarchy than democracy.
4. Transparency: The EU draft constitutional
treaty states that equality is a core value (article I-2). Equality
among the Member States depends on transparency in the way in
which rules which touch key fields are developed and adopted.
The Prüm Convention was drafted and adopted by five Member
States without any consultation with the others. Civil society,
even in the participating states, were largely unaware of the
existence of the negotiations. The mechanism of intergovernmentalism
in fields of EU concern among a small group has been consistently
criticised by parliamentarians, academics, ngos and others not
least since the first Schengen Convention in 1985 was published.
To revert to this somewhat discredited mechanism in 2006 is not
conducive to respect for the principle of transparency and equality
in the EU.
5. Legality: we have elsewhere commented
in some depth on the questionable legality of the Prüm Convention
vis-a"-vis EU law.[2]
The lack of clear rules on the interpretation and application
of the Prüm Convention which apply to all the parties and
are accessible to the individuals who are directly affected by
its operation is highly unsatisfactory and contrary to the value
of the EU for rule of law as expressed in its draft Constitutional
Treaty (article I-2).
6. Legitimacy: All EU measures need
to be accepted by the people of Europe as legitimate if the EU
is to enjoy the coherence and effectiveness which it claims. Transferring
privately negotiated treaties into the EU aquis does not fulfil
the requirements of legitimacy. It appears underhanded and dishonest.
If the EU seeks new measures, the EU treaties set out exactly
how they should be proposed and adopted. Sliding in sideways treaties
which deal with subjects which were already under discussion and
proposal at the EU level when they were signed does not conform
to any acceptable standard of legitimacy in a democratic society.
7. The Sub Committee has asked whether the
provisions of the Convention are justified by the need to combat
terrorism and cross-border crime. In light of the relatively opaque
definitions which the EU has adopted regarding terrorism and cross
border crime it is very difficult to answer this question. A starting
place could well be to obtain from the Member States statistics
on the number of criminal charges, trials and convictions which
they have undertaken regarding terrorism and cross-border crime
(as defined in the Framework Decisions) over the past five years.
Only then could even some attempt be made to assess whether measures
as severe as those in the Prüm Convention are proportionate.
8. The legal base of the draft Council Decision
to incorporate parts of the Prüm Convention into the Third
Pillar[3]
is articles 30(1)(a) and (b), 31(1)(a) and 34(2)(c) which are
reproduced in the Annex hereto.[4]
From the face of the provisions relied upon and the fact that
the Decision prays in aid article 34 in addition to the more specific
powers, clearly there are questions about the adequacy of the
legal base. It is not self evident that articles 30 and 31 permit
the adoption of a Decision with such important provisions on data
collection, retention, exchange and manipulation. The opinions
of both the Council and Commission's legal services on the question
of the legal base would be most helpful.
9. In light of the wide powers on data collection
and use in the Prüm Convention, it is important to remember
the key concerns regarding personal data which have arisen in
the EU over the past years. Two data collection and use practices
have fallen into disrepute as a result either of decisions of
Member States' constitutional courts or the European Court of
Human Rights. These are data mining—the process of automatically
searching large volumes of data for patterns using tools such
as classification, clustering etc, and profiling—commonly
understood as recording a person's behaviour and characteristics
in order to predict or assess their future actions or to identify
a particular group of people. The provisions of the Prüm
Convention are not sufficiently clear or adequate to ensure that
this two practices are excluded. The provisions permitting automated
searching of DNA and fingerprint records are a case in point.
These are insufficient precise and without enough detail and safeguards
to ensure that limitations which have been required by the ECtHR
are complied with. Our concerns regarding the protection of data
are reinforced by the determination of the German Presidency to
open the EURODAC data base to police and law enforcement authorities.
This data base containing the fingerprints of every asylum seeker
in the EU (and some others) was carefully, and after substantial
deliberation, placed beyond the reach of police and law enforcement
agencies on the basis of the protection of the fundamental rights
of asylum seekers. Article 1(1) of the EURODAC regulation clearly
states its purpose as strictly limited to the allocation of responsibility
for determination of a claim. The risks to asylum seekers of the
opening of the database are self evident.
10. In conclusion, then, our concerns about
the Prüm Convention which we expressed almost two years ago
continue to be valid. Not only is the process seriously flawed
but the flaws which we highlighted in 2005 are now at risk of
being replicated in the transposition of the Prüm Convention
to the EU acquis. The content of the Prüm Convention also
raises concerns in particular regarding the respect for individual's
privacy and the protection of people's data. Finally, the legal
basis on which this process has been launched does not seem to
us sufficiently robust to support the action.
20 February 2007
1 EU draft Constitutional Treaty Article I-2. Back
2
Security and the Two-Level Game: The Treaty of Prüm, the
EU and the Management of Threats Back
3
Council Document 6002/07. Back
4
We understand that a second proposal was withdrawn as its content
was replaced by Framework Decision 960/2006/JHA adopted on 18
December 2006. Back
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