House of Lords - European Union

Select Committee on European Union Eighteenth Report

CHAPTER 3: The German Presidency's initiative

32. At the meeting of the G6 interior ministers in Stratford-upon-Avon on 25 and 26 October 2006[23] Germany was represented by its interior minister, Dr Wolfgang Schäuble. Within ten days of Germany taking over the EU Presidency, in a speech to journalists in Berlin on 11 January 2007 Dr Schäuble said that he accepted that the G6 caused a degree of mistrust with those 21 partners which do not take part in the meetings, but thought that if too many issues were tackled in formal Council meetings, not all Member States would be satisfied with the degree of efficiency of the decision-making process. As an example of the benefits of informal structures he highlighted the Prüm Treaty. The seven signatory States had simply thought that EU procedures would take too long, and clinched their own deal; but now that the Treaty was there, the German Presidency would see if it could be put into an EU legal framework.

The Dresden meeting

33. Any questions about the extent to which an EU-wide instrument would differ from one extending to only seven Member States were rapidly answered. Four days later an informal meeting of justice and home affairs ministers of all the Member States was held in Dresden. The first agenda item at the first plenary session on 15 January 2007 was a Presidency paper whose topic was: "Stepping up cross-border police cooperation by transposing the Prüm Treaty into the legal framework of the EU". After three pages extolling the virtues of the Treaty—it "amounts to a quantum leap[24] in the cross-border sharing of information"—a single question was put to ministers: "Do you support the planned initiative of the Prüm contracting states to incorporate the contents of the Prüm Treaty into the EU law 1-to-1?".

34. By the end of the day Dr Schäuble was able to say:

"I am pleased that the proposal to transpose the Prüm Treaty into EU law, which was submitted informally by the German Presidency together with the other Prüm signatories and the European Commission today, has been so very well received. With this in mind, we want to take up formal discussions at the next meeting of justice and home affairs ministers in Brussels on 15/16 February."

35. We explained in paragraph 30 that any initiative to incorporate Prüm has to be "in consultation with or on a proposal from the European Commission". The Presidency paper stated that "[T]he German Presidency, together with its Prüm partners and the European Commission, wishes to initiate the conversion of the Prüm Treaty into EU law." Jonathan Faull told us that there the Commission had regularly attended meetings of working groups. (Q 89)

36. We do not question the sincerity of the views of the German Presidency, nor that Dr Schäuble was genuinely of the view that the provisions of the Treaty would transform the effectiveness of police cooperation on counter-terrorism and serious crime in those States where it is in force. The Presidency clearly has no problem extrapolating this to the whole of the EU. At the time of the Dresden meeting the Treaty had been in force between Germany and Austria for less than two months, but the paper presented to ministers at that meeting stated:

"Already at this early stage, the automatic information exchange has brought about noticeable operational success: for instance, the German authorities matched DNA profiles of open cases against data held by the Austrian authorities and found hits in 1510 cases. In this context 710 open traces from Germany could be attributed to persons known to the Austrian criminal prosecution authorities. Broken down by types of crime, 41 hits in homicide or murder cases, 885 hits in theft cases, 85 hits in robbery or extortion cases were found. Prosecution authorities are confident that the number of hits will increase constantly as further Prüm countries take part in this process, and that they will thus be able to solve numerous other open cases."

37. Some of these figures were quoted to us in evidence by Ms Ryan, who (with Baroness Ashton of Upholland) represented the United Kingdom at Dresden. (Q 20) We agree that if a significant proportion of these cases resulted in the identification, extradition, prosecution and conviction of criminals who would not otherwise have been identified, this was a highly satisfactory result. However the implication is that this result, obtained after only two months, would be repeated in future months. Tony Bunyan, the Director of Statewatch, described this as "a headline-making figure", and pointed out that this apparently impressive result followed from the fact that there was a large amount of information about earlier serious crimes which was available for the first time to the prosecuting authorities. Once the backlog of crimes was cleared up, results would not continue on anything like this scale. (Q 57) Jonathan Faull admitted that this could be the case. (QQ 95, 96)

38. In our view the statement in the Presidency paper that "Prosecution authorities are confident that the number of hits will increase constantly as further Prüm countries take part in this process" is highly misleading. It seems to us that each time a further country takes part there will be another backlog to clear up, and this will produce apparently impressive results; but thereafter the figures are bound to be significantly lower. It is hardly to be expected that every month twenty or so homicides in Germany will be cleared up from data made available by the Austrian authorities.

39. Moreover, there is no reason why this result could not have been achieved by a Framework Decision on the principle of availability. Given that the scope of this Framework Decision, and the data it covers, would go considerably wider, the result might well have been surpassed.

40. The German Presidency's enthusiasm for the results achieved by matching DNA profiles held in its database with those held by the Austrians ignores other problems which are likely to arise when the same exercise is carried out among 27 Member States. The absence of a harmonised approach to the collection and retention of data means, for instance, that there will continue to be differences between the grounds on which Member States collect DNA and fingerprints, and the length of time they are allowed to retain these data under their national law. Thus we were told by Tony Bunyan that "in most European Union States [fingerprints and DNA] are kept and held for serious crimes, whereas in the UK we are keeping fingerprints and DNA for all crimes, however minor". Since January 2006 it has been possible for persons arrested to have their DNA and fingerprints taken compulsorily even if they are not charged. (Q 76) The Home Office has now proposed in a consultation paper that this should be possible if people are only suspected of a crime, even though they are not arrested.[25]

41. It therefore comes as no surprise that the United Kingdom has the largest DNA database in the world, half as large again as all the other Member States put together.[26] Jonathan Faull confirmed that this was likely to lead to the United Kingdom exchanging DNA data more widely than other Member States. (Q 102) Officials of a country which holds DNA data only for serious crimes will inevitably start with the presumption that DNA data are held in the United Kingdom for the same purpose, and perhaps put at risk those whose DNA is held because they have committed only a minor crime, or perhaps no crime at all. The Assistant EDPS, Mr Bayo Delgado, believes that in such cases "the interpretation of the result [of a match] may be in need of some clarification." (Q 126) Nothing in the Minister's evidence to us suggests that the Government are concerned about this.

42. The threshold for holding DNA profiles on the United Kingdom DNA database is far lower than in any other Member State, and the proportion of the population on the database correspondingly far higher. The Government should as a matter of urgency examine the implications of DNA exchanges for those on the United Kingdom database.

The draft Prüm Decision

43. Within four days of the Dresden meeting the Council Secretariat had published a Working Paper containing a first draft of a Council Decision incorporating the Convention into EU law.[27] The eighth and ninth recitals of that draft read:

"(8) For effective international cooperation it is of fundamental importance that precise information can be exchanged swiftly and efficiently. The aim is to introduce procedures for promoting fast, efficient and inexpensive means of data exchange. For the joint use of data these procedures must be subject to accountability and incorporate appropriate guarantees as to the accuracy and security of the data during transmission and storage as well as procedures for recording data exchange and restrictions on the use of information exchanged.

(9) These requirements are satisfied by the [Prüm Convention] ... In order that both the substantive requirements of the Hague Programme can be fulfilled for all Member States and its targets in terms of time-scale can be achieved, the essential parts of the Prüm Convention need to be made applicable for all Member States. This Council Decision is therefore based on the main provisions of the Prüm Convention."

44. The references to the "essential parts" and the "main provisions of the Prüm Convention" follow from the fact that, as explained in paragraph 11 above, while most of the Treaty consists of provisions which might be described as third pillar provisions, Chapters 3 and 4, which deal with the deploying of air marshals on planes and the creation of a network of immigration liaison officers to help combat illegal migration, are first pillar provisions, and cannot therefore be included in a Decision whose legal basis is Title VI of the Treaty on European Union. These chapters, because they do not feature in any draft of the Prüm Decision, are set out in Appendix 4 to this report. Apart from those chapters, the substantive provisions of the draft are not merely "based on the main provisions of the Prüm Convention", but replicate them word for word.

45. This draft of the Prüm Decision was considered by the Article 36 Committee at a meeting on 25-26 January. This is a Coordinating Committee of senior officials set up under Article 36 of the Treaty on European Union "to give opinions for the attention of the Council, either at the Council's request or on its own initiative", and to contribute to the preparation of Council discussions in Title VI matters. The Committee's opinions are not made public, but they clearly did nothing to impede the process of incorporation of Prüm.

The February Council

46. On 6 February a revised draft of the Prüm Decision,[28] put forward by the Presidency and twelve other Member States, was published for consideration at the formal Justice and Home Affairs Council on 15 February. If this had been a Commission initiative, the proposal would have been accompanied by an explanatory memorandum and, crucially, by an impact assessment. The Member States putting it forward, though under no obligation to provide an explanatory memorandum or impact assessment, might have realised this would be useful not just to the other Member States but to all of those who might be interested, including national Parliaments.

47. At the February meeting the Council (at which the United Kingdom was represented by Baroness Scotland of Asthal and Ms Ryan) formally agreed on:

48. A third draft of the Prüm Decision was prepared on 27 February.[30] The significant difference from the draft considered by the Council is the omission of the former Article 18, removed from that draft in the circumstances we describe in paragraphs 60 to 66 below. We consider the consequences of that omission in the following chapter.

49. Another draft was prepared by the Presidency on 14 March 2007 in anticipation of a further meeting of the Article 36 Committee, and this is the draft which we have printed in Appendix 3.[31] There are no significant changes of substance, but enough changes of detailed wording for the recitals to refer, not to the "essential parts", but to "the substance of the essential parts" of the Prüm Treaty. The "main provisions" have become "provisions based on the main provisions".[32]

Relationship with other EU instruments

50. The Prüm Treaty already overlaps, and the Decision when adopted will overlap, with three EU instruments. Two of these, the draft Framework Decisions on data protection and on the exchange of information under the principle of availability, have already been discussed.[33] Perhaps because they are still in draft, they do not merit a mention in the recitals to the Decision, which therefore gives no clue as to whether or to what extent it will be related to these instruments, or how any conflict between them will be settled.

51. However a third instrument has already been adopted. This is the Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States,[34] under which they must ensure that information and intelligence will be provided to authorities of other Member States on request. The existence of this Framework Decision is acknowledged in recitals (7) and (11) of the Prüm Decision. We understand from Jonathan Faull that there is a sense that the two instruments are complementary, but that it is too early to tell precisely how they will co-exist, given that the new administrative procedures for the exchange of information under Framework Decision 2006/960/JHA have not yet been tested. (Q 113)[35]

52. If and when the Prüm Decision is adopted, there will be three third pillar instruments dealing in different ways with the exchange of information between law enforcement authorities of different Member States. As we have said in paragraph 15 above, we set out in Appendix 6 the similarities and differences between the current texts. We believe that this is an unsatisfactory situation. Those who are attempting to make use of this legislation in the fight against crime should have at their disposal provisions which are clear, simple and straightforward, not complex, cumbersome and inconsistent as they are now.

53. We asked Jonathan Faull whether consolidation of these laws would not in due course be desirable. While agreeing in principle, he doubted whether Member States would ever be able to agree to a strict consolidation; they would be unable to resist the temptation of seeking to negotiate improvements, and in doing so would increase the confusion. (Q 114) We agree that, in the absence of a special procedure for strict consolidation without amendments,[36] this is a very likely outcome. We hope however that the point will not be lost sight of. Meanwhile, law enforcement authorities in all the Member States must be provided with the same clear guidance and training which will enable them to operate the new laws responsibly in the fight against crime.

Timetable

54. The German Presidency at one time had ambitions that this Decision should be agreed at the JHA Council on 19-20 April, but this would have been to ignore the role of the European Parliament. Although the Parliament does not—yet—have co-decision powers in third pillar matters, Article 39 of the Treaty on European Union does require the Council to consult the Parliament, and to give it at least three months to deliver its Opinion.

55. On 28 February the Secretary-General of the Council wrote to the President of the European Parliament to initiate the formal consultation of the Parliament on the draft of 27 February. The letter informed the Parliament that the Council was still debating the approach to be adopted in relation to Article 25 of the Treaty—"measures in the event of immediate danger", and would inform the Parliament of the outcome of its discussions without delay.

56. The letter asks the Parliament to deliver its Opinion no later than 7 June 2007. This gives the Parliament barely more than the three month minimum required by Article 39 TEU. It gives the Council two working days to consider the Opinion before the last JHA Council of the German Presidency on 12-13 June. Since the Presidency intends, or at least hopes, to have the Decision adopted at that Council, and since the instruments to be adopted have to be circulated a little time in advance, it is plain that the Presidency is complying with the formalities of the Treaty, but has little intention of being influenced by the views of the Parliament.[37]

57. It is understandable that a State which holds the Presidency should wish to make use of that opportunity to further legislative proposals which it is particularly anxious to see implemented. This should not however be seen as a reason for cutting short full consideration by all the Member States. The timetable for initiatives by Member States should be the same as for Commission proposals.

23 This meeting was the subject of our report After Heiligendamm: doors ajar at Stratford-upon-Avon, 5th Report, Session 2006-07, HL Paper 32. Back

24 Bold in the original. Back

25 Modernising Police Powers: Review of the Police and Criminal Evidence Act (PACE) 1984, Home Office, March 2007, paragraphs 3.31-3.38. Back

26 DNA Expansion Programme 2000-2005: Reporting Achievement (Home Office, October 2005). At that date 5.24% of the UK population was on the database, compared to 0.5% in the United States. The figure for the EU as a whole was 1.13%. Austria is the Member State with the next highest proportion, 0.98%. Back

27 General Secretariat of the Council, Working Document of 19 January 2007. We refer hereafter to a draft of a Decision to incorporate the Prüm Treaty into EU law as a "Prüm Decision". Back

28 Document 6002/07. Back

29 Press release of 2781st Council Meeting, document 5922/07. Back

30 Document 6566/07. Back

31 Document 7273/07. Back

32 Some of the detailed changes are less than felicitous. Articles 8 et seq of the Treaty, dealing with "fingerprinting data", in the Decision refer to "dactyloscopic data". In the latest draft of the Decision there is a recital which refers to "the architectonics of comparing anonymous profiles". Back

33 Paragraphs 13 to 18 above. Back

34 OJ L386 of 29 December 2006, page 89. Back