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Select Committee on European Union Eighteenth Report


CHAPTER 2: Background

6.  The Prüm Treaty[3] is an agreement between Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria

    "on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal immigration."

It was signed at Prüm on 27 May 2005. It is perhaps not a coincidence that the Contracting States chose to conclude the Treaty at a small town not far from Schengen, though on the German side of the border. Indeed, the Treaty is sometimes, inaccurately, known as Schengen III. Five of the parties to Prüm were the five parties to the 1985 Schengen Agreement and the 1990 Schengen Convention. As in the case of Schengen, those States had ambitions to extend their agreements to the other Member States in due course. However Prüm is not part of the Schengen acquis, and the differences between Prüm and Schengen are greater than the similarities.

7.  The initiative for the negotiations which led to the signing of the Treaty came initially from Germany and Austria, joined by the Benelux States. France and Spain joined only at the last moment. The negotiations were given very little publicity.[4] The Treaty entered into force between Austria and Spain on 1 November 2006, and between those States and Germany on 23 November. Luxembourg has ratified it, and the ratification processes in the other three States party are well advanced. Four other States applied last year to accede: Finland, Italy, Portugal and Slovenia.

The main provisions of the Prüm Treaty

8.  The principal purpose of the Treaty is to improve the exchange of information between the Contracting States, particularly by giving reciprocal access to national databases containing:

9.  These provisions are in Chapter 2 of the Treaty. Each Contracting State must ensure availability of these data and allow other Contracting States access to the data with the power to conduct automated searches. As in the case of the Schengen Information System (SIS), the first contact is on a "hit/no hit" basis: "Does another State have comparable data to match the data I have?" In the case of a hit, the next step is to seek further information from the contact point designated by the other State for the supply of further data, rather on the lines of SIRENE.[5]

10.  Chapters 5 and 6 include provisions on joint operations between the officers of Contracting States, including the carrying of arms, with the permission of the other State; and operations across the border of a neighbouring State without that State's prior permission "in the event of imminent danger".[6] There are provisions on the use of arms and the wearing of uniforms on such occasions. There is a general provision for cooperation on request.

11.  All these are matters which, in an EU instrument, would be the subject of third pillar measures. There are also, in Chapters 3 and 4, provisions which would, in an EU instrument, be first pillar measures. These are the deploying of air marshals on aircraft (and the carrying by them of arms); and the creation of a network of immigration liaison officers to help combat illegal migration.[7]

12.  The exchange of information, particularly by reciprocal access to national databases, must be subject to accountability. It needs appropriate guarantees as to the accuracy and security of the data, as well as procedures for recording data exchanges, and restrictions on the use of information exchanged. These provisions are in Chapter 7. We consider them in more detail in Chapter 4 of this report.

The principle of availability

13.  The provisions of Chapter 2 of the Treaty on reciprocal access to information held by another State are, in effect, based on the principle of availability. This principle means that "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 for the stated purpose."[8] If the information is available, it must be provided; the grounds for declining to do so are extremely limited.

14.  The Hague Programme, which was approved by the European Council on 5 November 2004 and set out the EU's priorities in the field of justice and home affairs for the following five years, invited the Commission to present by the end of 2005 legislation to implement the principle of availability which would be operational by 1 January 2008. The Commission put forward its proposal for a Framework Decision on the exchange of information under the principle of availability on 14 October 2005.[9] This went wider than the Prüm Treaty, covering not just DNA profiles, fingerprints and vehicle registration data, but also:

  • ballistics;
  • telephone numbers and other communications data; and
  • minimum data for the identification of persons contained in civil registers.[10]

15.  Under the Hague Programme the intention was to create an EU-wide right to access data collected and retained in national police databases. Hence in the Commission proposal "availability of information" means that all available national information should be directly accessible on line to the authorities of other Member States. Jonathan Faull, the Director-General for Justice, Freedom and Security at the Commission, told us that "Prüm will go some way, not the whole way, to doing that." (Q 83) The European Data Protection Supervisor (EDPS) went further, explaining that "Prüm is of a fundamentally different nature": it does not give direct access, but indirect access through reference data. (p 31) In oral evidence Mr Hijmans, the legal adviser to the EDPS, added that "Prüm is not really [about] availability" because it does not eliminate borders for police information. (Q 127) We set out in Appendix 6 the similarities and differences between the current texts.

16.  In its Explanatory Memorandum for the Framework Decision to implement the principle of availability, the Commission explained that there were similarities between its proposal and the Prüm Treaty, but pointed out that that the Treaty was more limited in scope, applied to only seven Member States, and was still subject to ratification.

17.  When the interior ministers of the G6—Germany, France, the United Kingdom, Italy, Spain and Poland—met at Heiligendamm in March 2006 under German chairmanship, the Conclusions of the meeting included the following passage:

    "4. Principle of availability

    The ministers again highlighted the importance of significantly improving cross-border information exchange between law enforcement authorities, as already set out in the Hague Programme. To rapidly achieve this objective, they advocate focusing on DNA, fingerprints and motor vehicle registration data. At the same time they stressed that the promising model offered by the Prüm Treaty, including online requests and hit/no hit access, should be considered at EU level as soon as possible.

    The ministers underscored that rapid implementation of the availability principle must not depend on the adoption of a framework decision on data protection in the third pillar."

18.  In Chapter 3 of our report on the Heiligendamm meeting[11] we drew attention to this passage, and were particularly critical of the attempt to divorce progress on the principle of availability from adoption of a third pillar Data Protection Framework Decision. Now, with the benefit of a year's hindsight, this statement can be seen as the first sign of the German chairmanship attempting to sideline the EU initiative on the principle of availability in favour of "the promising model offered by the Prüm Treaty"—an attempt which has been conspicuously successful. It is the Commission proposal which risks becoming redundant; there have been no further negotiations on it, and Ms Joan Ryan MP, the Parliamentary Under-Secretary of State at the Home Office, told us in her written evidence that the Commission proposal was being held in abeyance. (p 1) However in oral evidence she said that the Government "want that Framework Decision to go ahead" (Q 32); but she did not say whether the Government would be pressing for the negotiations to be resumed or, if so, how the differences with the Prüm Treaty would be reconciled.

Lawfulness of the Treaty

19.  Questions have been raised about the legality of the Prüm Treaty, on the ground that it may be contrary to the implementation of Community objectives. Article 10 of the EC Treaty provides:

In a Briefing Note prepared at the request of the LIBE Committee of the European Parliament in January 2006[12] Dr Thierry Balzacq[13] argued that Prüm breaches the principle of loyal cooperation of Article 10. In the States in which it is in force, Prüm sets up a regime which in his view is inconsistent with the Commission proposal on the principle of availability, and which prevents the latter from ever being brought into effect.

20.  In written evidence to us on behalf of the Centre for European Policy Studies (CEPS) Professor Elspeth Guild, Professor of European Migration Law at Radboud University, Nijmegen, had told us that "[T]ransferring privately negotiated treaties into the EU acquis does not fulfil the requirements of legitimacy. It appears underhanded and dishonest." In oral evidence she confirmed this view, and said that in relation to its first pillar provisions on immigration the Prüm Treaty was in breach of Article 10. (Q 50) Mr Tony Bunyan, the Director of Statewatch, pointed to the practical difficulties of such an approach: "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." (Q 49)

21.  Mr Peter Hustinx, the European Data Protection Supervisor, argued in his written evidence (p 31) that the Contracting States "evaded the substantive and procedural requirements of enhanced cooperation" which have been included in the EU Treaty since its amendment by the Treaty of Nice.[14] For these and other reasons he believes that it is arguable that "the Prüm Convention breaches the law of the European Union". But in his view this can never be more than a theoretical argument, since neither the European Court of Justice nor any other court has jurisdiction to rule on this question. Jonathan Faull regretted that the initiative had not been taken within an EU framework from the beginning, and confirmed that it could have been taken under enhanced cooperation.[15] (Q 83)

22.  We believe that for seven Member States to enter into an agreement including first pillar matters falling squarely within EC competence may have breached the letter, and certainly breached the spirit, of Article 10 of the EC Treaty.

The approach of the United Kingdom

23.  The Government's approach to Prüm might be described as cautious. When Ms Ryan came to give oral evidence we asked her whether the United Kingdom had been invited to take part in the negotiations leading to the signature of the Prüm Treaty when these first began, and if not, what steps the Government took to be included in the negotiations. Ms Ryan told us that the United Kingdom had indeed been invited to take part, but had not done so. She did not suggest that the Government had thought that such an agreement would be unlawful or even undesirable; the reason she gave was that the draft Treaty contained provisions which the Government found unacceptable.

24.  We were perplexed by this reply, and pressed the Minister to explain why, if there were provisions in the draft which were unacceptable, the Government had not taken part in the negotiations and attempted to have those provisions amended or deleted when there was an opportunity to do so, rather than waiting until the Treaty was signed. Ms Ryan was unable to give us a satisfactory answer to this question, merely repeating her original reply. (QQ 2, 6)

25.  A Government taking part in treaty negotiations is not bound to sign a draft treaty which emerges from these negotiations; and if it does sign, is not obliged to ratify the treaty.[16] It may have been likely that the negotiations on Prüm would result in a draft acceptable to the majority of the Member States taking part in those negotiations, but unacceptable to the United Kingdom; but this was not, in our view, a reason not to take part in those negotiations.

26.  Once the Treaty was concluded without the United Kingdom as a signatory, the question arose whether the Government should attempt to accede to it. On 9 January 2006, ten months before the Treaty entered into force, Paul Goggins MP, then the Home Office Minister responsible, told us in a letter to our Chairman that "the Government is currently considering whether the UK should accede to the Prüm Treaty". Two months later, on 14 March 2006, Baroness Scotland of Asthal, the Minister of State at the Home Office, when asked by Lord Wallace of Saltaire whether the Government proposed that the United Kingdom should become a party to the Treaty, replied:

    "My Lords, the Government are looking closely at the Prüm Convention. No decision has yet been taken. We expect to come to a preliminary view in the next few months."[17]

27.  On 29 November 2006, when the Treaty was already in force between three of the signatories, Ms Ryan told the Sub-Committee inquiring into SIS II: "We believe there are potential benefits for signatories to the Prüm Convention, so we are looking at that very actively at the moment".[18] And in evidence to this Committee on 19 December 2006 the Rt Hon Geoff Hoon MP, the Minister for Europe, said: "The Government is seriously considering signing up to the Prüm Convention and intends to enter into formal discussions with the existing signatories in the near future".[19]

28.  In the space of a year four ministers told us that the question of accession to Prüm was under "close", "active" and "serious" consideration. We do not understand why it should have taken so long for the Government to conclude that there was at least one provision of the Treaty to which the United Kingdom could not agree.

Prüm: the way forward

29.  The time for accession is in practice past. It is now clear that Prüm was never more than a stepping stone to an EU-wide instrument. The first clue can perhaps be found in the Treaty's opening words:

which make clear the capacity in which the Contracting States are signing: not just as independent sovereign States, but also as Member States of the EU.[20]

30.  Article 1 explains the reason for this. Not only is it open to any Member State of the EU to join the Convention, but:

    "Within three years at most following entry into force of this Convention, on the basis of an assessment of experience of its implementation, an initiative shall be submitted, in consultation with or on a proposal from the European Commission, in compliance with the provisions of the Treaty on European Union and the Treaty establishing the European Community, with the aim of incorporating the provisions of this Convention into the legal framework of the European Union."

31.  Schengen also started as an agreement between a small number of Member States, impatient at the slow progress of the EU (then EC), going forward at their own speed, secure in the knowledge that if they could persuade enough others to join, the rest would have to follow, so that eventually the provisions they had agreed became part of EU law. The 1985 Schengen Agreement said nothing at all about other Member States. The 1990 Schengen Convention, implementing that Agreement, provided that "Any Member State of the European Communities may become a Party to this Convention", but said nothing about attempting to incorporate it into EU law; it took another Treaty to achieve this.[21] The Contracting States to the Prüm Treaty have been more brazen about it, making their ambitions clear from the outset. In the next chapter we explain how those ambitions are being pursued.[22]


3   In all four authentic texts (German, Spanish, French and Dutch) it is called a Treaty. The official English translation prepared by the Council (Document 10900/05) refers to it as the "Prüm Convention", but the Implementing Agreement between the seven Contracting States (Document 5743/07), for which English is an authentic language, refers to it as a Treaty. The draft Decision of 27 February 2007 (Document 6566/07), which is agreed by the jurist-linguists, refers to it as the "Prüm Treaty". Since this will be its title in any future instrument for which English is an authentic or official language, this is what we have called it in this report, except where we are quoting documents which refer to it as a Convention. We have also sometimes referred to it simply as "the Treaty", or just "Prüm". Back

4   On 17 October 2005, five months after the signature of the Treaty, the President of the European Parliament admitted in his opening speech at a meeting of the European Parliament and national Parliaments that he had not heard of the Treaty. Back

5   The working of the SIS is fully explained in Chapters 2 and 3 of our recent report Schengen Information System II (SIS II) 9th Report, Session 2006-07, HL paper 49. SIRENE (Supplementary Information Request at the National Entry) is explained in paragraph 55 of that report. Back

6   These provisions are not unlike the "hot pursuit" provisions in Article 41 of the Schengen Convention, which apply to the Schengen States but not to the United Kingdom or Ireland. Back

7   First pillar measures are those which have the EC Treaty as their legal base. Third pillar measures are those which have as their legal base Title VI of the Treaty on European Union: Provisions on Police and Judicial Cooperation in Criminal Matters. Back

8   The Hague Programme, paragraph 2.1, agreed by the European Council on 4-5 November 2004. Back

9   Document 13413/05, enclosing COM(2005)490 final. Back

10   The expression "civil registers" is not defined in the Commission text. In a letter of 15 December 2005 to the House of Commons European Scrutiny Committee Paul Goggins MP, then the Parliamentary Under-Secretary of State at the Home Office responsible for these matters, said that this category of information was included because of the value to law enforcement of access to data which could identify or confirm who people were. He understood that electoral registers and registers of births, marriages and deaths were examples of registers held in the United Kingdom which might be of this type (House of Commons European Scrutiny Committee, Fourteenth Report of Session 2005-06, HC Paper 34-xiv). Back

11   Behind Closed Doors: the meeting of the G6 interior ministers at Heiligendamm, 40th Report, Session 2005-06, HL Paper 221. Back

12   IP/C/LIBE/FWC/2005-08 Back

13   Research Fellow at the Centre for European Policy Studies (CEPS). Back

14   The Treaty of Nice amended Article 40 of the Treaty on European Union (TEU), and added Articles 40a and 40b. Together these Articles provide a way for Member States to establish enhanced cooperation between themselves with "the aim of enabling the Union to develop more rapidly into an area of freedom, security and justice". The procedure is governed by Title VII of the TEU. It requires an initiative of at least eight Member States. It is clear from subsequent events that the seven signatories of the Prüm Treaty would have had no difficulty in finding an eighth State to join them if they had wished to use this procedure. In fact it has never been used. Back

15   However in a second briefing note prepared for the LIBE Committee in July 2006 (IP/C/LIBE/FWC/2005-22-SC2) Dr Balzacq argues that, given that Articles 20-23 of the Prüm Treaty deals with issues which ratione materiae fall within the Schengen acquis, enhanced cooperation would not have been open to the signatory States. Back

16   Perhaps the best example of this is the failure by the United States to ratify the Kyoto Protocol. Signature of a treaty does, in international law, involve an undertaking not to act in a manner contrary to the aims of the treaty, but no more. Back

17   Official Report, 14 March 2006, col. 1098. Back

18   Schengen Information System II (SIS II), 9th Report, Session 2006-07, HL paper 49, Q602. Back

19   Evidence of the Minister for Europe on the Outcome of the December European Council, 4th Report, Session 2006-07, HL Paper 31, Q 25. Back

20   Dr Thierry Balzacq, briefing note prepared at the request of the LIBE Committee of the European Parliament in January 2006. Back

21   Protocol No 2 to the Treaty of Amsterdam, integrating the Schengen acquis into the framework of the European Union. Back

22   With the further enlargement of the European Union and the creation of an increasing number of regional groupings, and groups like the G6 not based on a geographical region, it is probable that more initiatives of this type will be proposed. It remains to be seen whether they would use the formal Treaty enhanced cooperation procedure. Back


 
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