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EU-USA agreements on extradition and mutual legal assistance held up over "written instruments"

28 March 2012

EU-USA agreements on extradition and mutual legal assistance held up over "written instruments"

- US Senate to have full documentation while EU parliaments not even to be consulted

The controversial agreements on extradition and mutual legal assistance between the EU and the USA were signed by both sides in Washington at the EU-US Summit on 25 June (see: Analysis and documentation on EU-US agreements). It was then expected that the agreements would then be referred to the US Senate and the 15 EU national parliaments for ratification (though the only choice EU parliaments have is to accept every dot and comma of the agreements without amendment by passing them into national law or to reject them - which is highly unlikely).

However, it now transpires that the US Senate "cannot start the ratification process" until the two "written instruments" (under Article 3.2 of both agreements, see text below) have been negotiated and signed by all 15 EU governments. The procedure for these "written instruments" was set out months ago on 9 April 2003 in a draft Council Decision (doc no 8296/03) but at that time there was no urgency. But on 18 June a Note from the Greek Presidency to the Article 36 Committee said that they had been informed that the US Senate would have to be given both the two formal agreements and the two "written instruments" signed by all 15 EU government before they could begin their deliberations.

The two "written instruments" concern EU member states agreeing, in writing, that existing bilateral agreements between the USA and EU member states continue to apply as set out in the new agreements.

The procedure agreed by the Council is that although the existing agreements between individual EU member states and the USA are bilateral (for example, the recently revised UK-USA agreement): "these negotiations could take place at one time, for example on the premises of the Council of the European Union in Brussels"

The 18 June Note from the Greek Presidency also says that the US Mission had suggested "they could come to a meeting of the Article 36 Committee to expound their views" and instructed the "JHA Counsellors" (experts on justice and home affairs based in the permanent national delegations in Brussels) to "examine preliminary drafts of such model written agreements". This approach was then agreed at the meeting of the Article 36 Committee on 23 June and the issue has been passed over to the Italian Presidency which started on 1 July.

The European Parliament and national parliaments were only consulted on the contents of the two formal agreements at the beginning of May and their reports - including many critical comments - were, as usual, ignored.

Tony Bunyan, Statewatch editor, comments:

"It would appear that the Council of the European Union is intending to draw up these model "written instruments" for each EU state to sign and then agree them in a collective closed session without any reference to national parliaments as to their implications.

Whereas the US Senate will not start its work until all the relevant documents are before it - including documents ("written instruments") which EU national parliaments will not have been consulted on"

Background documentation

1. Procedure regarding the draft Agreements on judicial cooperation with the USA, 9 April 2003: 8296/03 (pdf)

2. Coordination of the Member States' position regarding the Agreements on judicial cooperation with the USA, 18 June 2003: 10618/03 (pdf)

3. Coordination of the Member States' position regarding the Agreements on judicial cooperation with the USA, 23 June 2003: 10707/03 (pdf)

5. On 9 April the Article 36 Committee of the Council of the European Union decided that:

"The Agreements foresee in their Article 3 (2) that written instruments be exchanged between the USA and the Member States of the Union on the application of bilateral treaties. Article 3 (3) of the mutual legal assistance Agreement provides a similar obligation for those Member States that do not have a bilateral mutual legal assistance treaty with the United States. With a view to the drawing up of such written instruments the Member States should coordinate their action within the Council" (9 April 2003, doc no 8296/03)

and the draft Council Decision said:

"1. The Member States shall take the necessary steps with a view to the drawing up of written instruments between them and the USA as contemplated in Article 3 (2) of the extradition Agreement and Article 3 (2) and (3) of the mutual legal assistance Agreement.

2. The Member States shall coordinate their actions pursuant to paragraph 1 within the Council."

6. Article 3.2 in both agreements says:

2. (a) The European Union, pursuant to the Treaty on European Union, shall ensure that each Member State acknowledges, in a written instrument between such Member State and the United States of America, the application, in the manner set forth in this Article, of its bilateral mutual legal assistance treaty in force with the United States of America;

(b) The European Union, pursuant to the Treaty on European Union, shall ensure that new Member States acceding to the European Union after the entry into force of this Agreement, and having bilateral mutual legal assistance treaties with the United States of America, take the measures referred to in subparagraph (a);

(c) The Contracting Parties shall endeavour to complete the process described in subparagraph (b) prior to the scheduled accession of a new Member State, or as soon as possible thereafter. The European Union shall notify the United States of America of the date of accession of new Member States.

7. Text and analyses of the two formal agreements: Analysis and documentation on EU-US agreements

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