Examination of Witnesses (Questions 1-19)
Professor Elspeth Guild and Mr Tony Bunyan
21 MARCH 2007
Chairman: We move on seamlessly, if we may,
to our inquiry into the incorporation of the Prüm Treaty
into EU law. This is still on the record and a record is being
taken of it. You will be sent a transcript in due course. I would
like to start by asking Lord Marlesford to ask a rather general
question of which you have not been given notice, but I am sure
you will both be very well able to cope with it.
Q48 Lord Marlesford: You made a strong
case against Prüm. What alternative and effective cross-border
measures do you think could be adopted to prevent terrorism and
crime?
Professor Guild: There are two angles from which
one has to look at the question of Prüm. The first issue,
which I think is terribly important, is that if seven Member States
start acting and negotiating agreements in a field which is under
discussion in the EU Council in which proposals are being put
forward, you have a negative externality created; you break the
solidarity of the Member States in seeking to achieve a common
solution with a small group making decisions on their own. The
consensus necessary to make any agreement work for 27 Member States
is lost. So I think the process by which Prüm was adopted
is one which has negative consequences for the fight against terrorism
in the European Union. The second question is then what about
the measures in the Prüm Treaty; what about the exchange
of information—the various provisions? There, as one can
see from the proposal for a Council decision, which the German
Presidency has put forward (and the latest version I saw was from
the middle of February this year), a number of issues which had
been highly controversial with some Member States have now been
dropped—for instance, the air marshals—on hot pursuit
(at the UK's insistence I understand). So we see that the negotiating
process results in a different mechanism, a different content
to the agreement, a content which is acceptable to all Member
States, not just to seven Member States, and, of course, we will
have further negotiations on the various issues regarding the
criminal justice provisions.
Q49 Lord Marlesford: Does Mr Bunyan
have any measures to offer?
Mr Bunyan: No. I agree with Elspeth on this.
The only point I would add is that I happened to be in Berlin
on Monday in a meeting debating with a German interior ministry
official, who is the German Presidency's person working on this
area, and he did tell me that on the First Pillar measure, covering
immigration (because Prüm has to be translated into the EU
and the one on police co-operation is Third Pillar, which we have
copies of), it was expected we were going to have a First Pillar
measure but he did say that had now been dropped. So it is good
to know it has been dropped. On the other hand, that leaves one,
to back up Elspeth's point, with a contradiction that it means
we have not got seven Prüm states but 15 Prüm states—I
think Finland has just indicated it is going to join. That, of
course, does create a difficulty because if you have 15 Member
States who are signing up to, for example, sky marshals, how can
that work within the European Union? You can have sky marshals
on some flights between some countries but not sky marshals on
other flights. I would disagree with sky marshals anywhere as
a good idea, but if you are going to have it you are getting a
two-tier Europe again; it is not just two-tier decision-making,
it now becomes two-tier practice. The whole idea of incorporating
the Schengen acquis under the Amsterdam Treaty was to get rid
of (there are still other tiers anyway, we know) those two tiers,
but you now have a new two-tier being created, which does cover
not just sky marshals but important issues like the joint return
of rejected refugees—there are important issues in that
area where we can see a two-tier development.
Q50 Lord Jopling: Professor, you
are on the record as having said that to create privately negotiated
treaties (and I quote) "appears underhand and dishonest".
Do you think that what those nations did is illegal and do you
think it is in breach of Article 10 of the Treaty? Do you think
there is anything anybody can do about it, if you dislike it so
much?
Professor Guild: In my opinion, the insertion,
in particular, of provisions on immigration into the Prüm
Treaty was and is contrary to Article 10 of the EC Treaty. We
transferred competency for immigration and asylum to the First
Pillar of the European Union in 1999 because we intended that
to be the venue where measures would be adopted. The UK chose
to opt out; quite properly, it negotiated a protocol to remain
opted out. We are not now talking about the position of the UK
in respect of that particular decision, but once a state enters
into an agreement with the 27 other Member States to make law
in one venue regarding an area of law it is a very poor idea as
far as solidarity, efficiency and effectiveness of law is concerned
if a small number of them start adopting laws on exactly the same
field among themselves without consulting the others. It would
seem to me this definitely falls into the category of questionable
good faith as required by Article 10. What can be done about this?
The guardian of the EC Treaty is the European Commission. The
European Commission is responsible for ensuring the proper application
of EC law; it has a monopoly over the introduction of legislation
in the First Pillar, including immigration, which perhaps explains
why the proposal for a First Pillar measure on immigration out
of Prüm has been dropped because the Commission has not considered
that, presumably, to be necessary, or is working on its own proposals.
However, the Commission cannot be forced (the European Court of
Justice has said this in more than one judgment) to bring enforcement
proceedings against any particular Member State or set of Member
States on the basis of Article 10. It is within the Commission's
assessment of what ought to be done, what is most effective and
what is in the interests of the European Union, taking into account
not merely the legal arguments I put forward but also the political
ones.
Q51 Lord Jopling: Thank you. You
have addressed yourself, principally, to the legality of all this,
but I remind you that you called it "underhand and dishonest".
As you will know, the French and the Germans for years have made
agreements between themselves which they then have imposed upon
the whole Community, from one time to another. I will give you
another example, and I am going to ask you whether you think these
things are wrong and should not happen and should be stopped.
That is one French and German one. I can remember once, as a member
of the Council of Ministers, in a very difficult negotiation in
the middle of the night, where there was something that I wanted
to get into the agreement and there was not very much support
for it, but the Italians had much the same attitude, and because
we were two of the big states with 10 votes we had enough votes
to block the whole thing. So we went to the Commission, the two
of us, and said: "Unless those two things we want are in
the agreement we shall block the whole thing." Do you think
that was underhand and dishonest? If you do, frankly, that is
politics.
Professor Guild: Certainly not. There you are
talking about politics; the negotiations; if you have good negotiators
sometimes you can call a bluff, sometimes you cannot; sometimes
you can move things along. Of course that is completely reasonable.
The European Union is a venue in which there are negotiations
which, result in decisions which are then transformed into law.
There is certainly nothing wrong with, bilateral or multilateral
agreements among Member States. The place where this runs into
difficulty is when the Member States decide to transfer competence
to the EU in a field and then behave as if they have retained
competence to run little bilateral or multilateral agreements
among themselves. That is where the problem lies. It is not in
the correct operation of politics. How do you run international
negotiations? How do you seek the best interests of your state
in the context of the interests of the other states? This is what
we pay our negotiators to do. But once you have made a decision
and you have entered into a binding agreement in the European
Union that you will only reach laws and make binding provisions
in that context, then you do not then form bilateral agreements
on exactly the same subject which pre-empt what you have already
done in handing over your competence. First you would need to
denounce the larger agreement and then enter into the bilateral
agreement.
Q52 Lord Teverson: I just have a
point of clarification. Clearly, as you say, the Commission on
the First Pillar has the exclusive right for initiation of legislation,
but in terms of bringing a case to the ECJ does it also in this
area have a monopoly? Cannot a Member State or a legal entity,
a citizen or a company, also bring a case to the ECJ on this now
or is that not the case?
Professor Guild: This is a minefield. Access
by individuals to the European Court of Justice is extremely limited.
You have to have a very individual decision against you to have
standing.
Q53 Lord Teverson: I asked the question
too broadly so we could move into a seminar. What I really meant
was, in relation to an issue such as Article 10 is there the ability,
say, for an NGO or for an individual Member State to take a case
to the ECJ or is it a Commission monopoly in this particular area?
Professor Guild: In the EC Treaty itself there
is a power for Member States to bring actions. There is also at
least a potential power for individuals, but effectively the judgments
of the Court of Justice have said that it is in the discretion
of the Commission whether it wishes to bring proceedings against
Member States under Article 10. A Member State could seek to bring
an action against the European Commission that it has failed to
bring an action against a Member State on the basis of Article
10, the Court of Justice has said that it is the Commission's
decision.
Lord Teverson: So it is a Commission decision
exclusively in this area. Thank you.
Q54 Lord Foulkes of Cumnock: Can
I ask a question following Lord Marlesford's question? In your
response, both of you, to Lord Marlesford's question do you believe
that you came up with an alternative to Prüm for fighting
terrorism and other serious cross-border crimes? Did your answers
provide that alternative?
Professor Guild: We need to look at the proposals
which have been put forward by the Commission in the Third Pillar
regarding fighting crime. There is in the Hague Programme agreed
by the Commission and endorsed by the Council, the proposal on
availability of information, that information held by law enforcement
agencies in one Member State will automatically be available to
their equivalents in other Member States, and this objective was
adopted by the Council. The Commission has put forward a proposal
to give it effect. It is, of course, a measure on the fight against
terrorism. The principle runs contrary to the principle of Prüm
where information is retained in the ownership of the law enforcement
agency which has collected it. It must respond to the request
of another law enforcement agency. So you can see Prüm as
a different mechanism. The answer to your question then is that
there are many proposals on the table and there is certainly a
proposal within the EU which is much wider than that in Prüm
in respect of exchange of information in this field.
Q55 Lord Foulkes of Cumnock: The
European Data Protection Supervisor thinks that the Prüm
states ought to have used the EU Treaty enhanced co-operation
procedure. Is that what you think?
Mr Bunyan: The point being made there is that
there is precisely a mechanism, if a group of Member States feel
that things are going too slowly at the EU level, to take action
if eight or more of them come together, and under the co-operation
procedure they reach what is effectively a bilateral agreement
between them, as I understand it. What is interesting is why could
not the German government, having got seven members, and it has
now got 15, get the eight and do it with that procedure? What
is interesting is that if you compare it with the Schengen Convention
Treaty this was agreed between those founding Member States, again
a small group of Member States, but at a time when other Member
States like the UK and Ireland did not want to take part in it
and when there was no EU competence in that area. Now we have
a situation where there is EU competence across the whole of justice
and home affairs and there is a mechanism for co-operation by
which they could govern things, which would have meant that we
would not then be in a position in the United Kingdom of saying,
"Do we sign up to this treaty and not with a change of a
dot or a comma?". In other words, there was a procedure for
anybody to come together to an agreement for their co-operation
without necessarily, as it were, affecting the Member State which
did not wish to be part of it.
Q56 Lord Foulkes of Cumnock: So it
is not the actuality of Prüm that you are concerned about;
it is the way it was achieved?
Mr Bunyan: As you will discover later, I have
some criticisms of what is in it as well, but that is not the
question at this time.
Q57 Lord Teverson: Presidencies have
made a number of statements. We have had a number of times the
example that has been brought forward around the Austrian situation
with the Prüm Treaty with regard to these 41 murder cases,
et cetera. Is that one statistic that seems to have come out so
far something that acts as a good foundation for what is being
tried to be done here and do you think that sort of result could
be rolled out once this agreement was made as a European Union
agreement? Is that a good example and does that justify what the
EU is trying to do?
Mr Bunyan: It was fortuitous that I was in Berlin
on Monday because I had this question and I was able to ask people
what the answer was. Whether the answer satisfies you or not,
I do not know. The first point that was made by the people I spoke
to in CILIP, which is a group similar to us which monitors the
EU, was that even prior to Prüm there were under Schengen
and other agreements many exchanges of data, so it is not a question
of Prüm enabling something which was not happening in Schengen.
However, the key point here is that I was told that the figures
given out here are in effect what happens when you check the whole
of your suspects database, what you are looking for in Germany,
against the whole of the Austrian database. This throws up these
very high figures. I was told that the figure of 41 murders would
never occur if you did it on a monthly basis. In other words,
because you are doing a one-off and considering all the cases
you are looking to solve and you check them against the whole
of the Austrian database, that throws up some very high figures
but that is a one-off experience and I was told it was highly
doubtful, because not that many murders take place in Germany
on a monthly basis, that you would ever see figures as high as
this again. In other words, it was a headline-making figure, and
I am not denying its accuracy but it should not be taken as an
indication of what it is going to be like in the months and years
ahead.
Q58 Lord Teverson: Can I seek some
clarification on all that? You are saying that that came about
through a complete reconciliation of the two databases?
Mr Bunyan: Yes.
Q59 Lord Teverson: Is that allowed
under the Prüm Treaty? I thought it was not.
Mr Bunyan: Apparently this is what the figure
is based on. That was confirmed by the Interior Ministry official
who gave a global figure, which I cannot quite remember now. I
think overall there were something like 15,000 matches for minor
crimes, out of which they took these headline figures.
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