28 March 2012
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This article first appeared in Statewatch bulletin, vol 17 no 1 (January-March 2007)
Since 11 September 2001 EU-US cooperation on justice and home affairs has reached unprecedented levels through what is termed the "US/EU channel". The Council Presidency of the EU ensures that the USA and its agencies are kept up to date with all the latest documents (eg: Action Plans) and EU meetings and seminars are regularly attended by US officials.
What the "Outcomes" of EU-US meetings show is the extraordinary influence that the US has on EU justice and home affairs policies and practice. The dominant theme is US demands for access to EU data, intelligence and databases and ensuring that US interests are not threatened (eg: by EU data protection standards). There is also evidence of "policy-laundering", for example, detailed G8 questionnaires drafted by the US which all EU governments have to respond to (eg: use of intelligence in criminal investigation and prosecution, EU doc no 12064/06).
The "US/EU channel" is largely a "one-way street" for US demands. It is rarely used by the EU to meet its needs and when it does it faces intransigency.
One such issue is visa reciprocity - under the US Visa Waiver Scheme only 15 EU countries are do not have to apply for visas (the original 15 minus Greece but plus Slovenia). People from the other 12 EU countries still need to get a visa.
At a meeting in Vienna on 3 May 2006 the EU Presidency said that visa reciprocity "has become a crucial element in the relations between the EU and the USA." On "e-passports" the EU side said a great effort had gone into:
"complying by 26 August 2006 with the requirement set by the US (that is, to start issuing RFID digitised photo chips)" (EU do no: 9223/06)
But by a meeting in January 2007, despite a pledge by George Bush, the US came up front with a whole series of new demands before they would add 12 EU countries to the Visa Waiver Scheme:
"airport security, air marshals, reporting on lost - and stolen passports, passenger information exchange, electronic travel authorisation etc." (EU doc no: 5655/07)
But on the proposed EU travel "exit-entry systems":
"The US side sees possibilities to exchange data in this field since entry data in one country corresponds to exit data for another country" (EU doc no: 5655/07)
The "EU side" said in relation to fingerprints collected for EU passports and for visas that there was a:
"need for bilateral agreements before third countries could have access to fingerprint data" (7618/06) but... It further emphasised the importance of interoperabiity of systems, so as to ensure a full working access to all parties" (EU doc no: 9223/06).
And the US side:
"invited the EU to assess how access for verification into e-passport databases will be organised" (9223/06).
"The US side wished to explore the possibility of exchanging data with Eurodac, both for analysis and for searching for people" (EU doc no: 5655/07)
"The US side asked that the architecture for SIS II be designed in a way that would not prevent future exchanges of information with third countries" (EU doc no: 12064/06).
When the US side asked about access to telecommunications data held by EU member states under the mandatory data retention Directive the EU side said there was no problem at all as this would be available under:
"existing MLA agreements (bilateral as well as EU/US agreement)" (EU doc no: 7618/06)
The draft Framework Decision on data protection in police and judicial cooperation has been amended because:
"If adopted as it stands, it would jeopardise the informal excellent contacts developed over time by the US law enforcement agencies with their opposite numbers in the Member States" (EU doc no: 12064/06)
But how is the recurring issue of the lack of data protection in the USA for EU citizens to be tackled? By the creation of a "High Level Contact group on data protection and data sharing" for which "the US delegation handed over a Proposed Outline" of work.
Finally, there are things that the US cannot do but the EU can. The "US side" doubted they could take part in the EU's "Check the web" plans to tackle terrorism "given the obligations imposed on them by the First Amendment on freedom of speech" (5655/07). Moreover, in the fight against terrorism:
"The American legal system is in a way more limited than the European ones, which allow preventive arrest, phone tapping etc" (EU doc no: 9223/06).
Food for thought perhaps?
1) Outcome of the EU-US Ministerial Troika on Justice and Home Affairs held in Vienna on 3 May 2006: EU do no: 9223/06
2) Report of the EU-US informal High Level meeting on Freedom, Security and Justice on 2-3 March 2006 in Vienna: EU doc no: 7618/06
3) EU-US informal JHA senior level meeting (22-23 January 2007, Berlin): EU doc no: 5655/07
4) Report on the EU / US JHA High Level meeting in Helsinki on 18 July 2006: EU doc no 12064/06
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