EU: EU officials decide on EP's influence
01 March 2000
Officials on EU Council working groups have been given the job of deciding which amendments put forward by the European Parliament on justice and home affairs should be accepted - and which should not
A little noticed report by the Finnish Presidency of the EU to the Article 36 Committee (see footnote) in November 1999 set out the guidelines for "consulting" the European Parliament under the Amsterdam Treaty. Under Article 39 of the Treaty on European Union the European Parliament (EP) has to be "consulted" before the Council (usually the Justice and Home Affairs Council) adopts framework decisions (Article 34.2.b), decisions (34.2.c) and conventions (34.2.d).
The procedure to be followed by the Council, according to this report, is that the EP is given the version of the text which is published in the Official Journal of the European Communities. Discussions in the Council and its working parties:
"may continue while awaiting the opinion of the European Parliament taking into account that on important changes the European Parliament may have to be reconsulted."
The case-law determined by the European Court of Justice says that the EP must be consulted again:
"whenever the text finally adopted, taken as a whole, differs in essence from the text on which Parliament has already been consulted, except in cases in which the amendments substantially correspond to the wishes of the Parliament itself."
However, the initiative to reconsult the EP lies with the Council.
The guidelines then set out a most extraordinary procedure for the consideration of the European Parliament's views. They say:
"The opinion of the European Parliament should be examined by the relevant Working Party."
Only in urgent cases are the EP's opinions to be examined by the Article 36 Committee or "exceptionally, by the JHA Counsellors" (specialist officials based in each of the permanent national delegations in Brussels).
The decision to "consult" the EP is taken at the highest level by COREPER, the Committee of Permanent Representatives of each EU member state, while the decision on which EP amendments to accept is undertaken at the lowest level by the Working Parties which drew up the measure in the first place. Membership of Council Working Parties vary according to the subject matter. For example, on immigration it will be comprised of middle-ranking Home/Interior Ministry officials and Immigration service officials working on immigration issues. On policing there will be a combination of police officers, ministry officials, often a Europol officer and sometimes members of internal security agencies.
EP's views rejected
A classic case of this procedure in operation is the EP's consideration of the Draft Convention on Assistance in criminal matters (see Statewatch, vol 7 nos 4 & 5, vol 8 no 6, vol 9 no 2, vol 9 no 3 & 4). The EP was sent a copy of the draft Convention on 3 August 1999 (during the parliamentary vacation) and a Note on further changes on 3 December 1999. The Committee on Citizens Freedoms and Rights discussed their response at meetings in September, October, November, December and 26 January (some 79 pages of explanation and amendments). The plenary session of the parliament adopted this report on 17 February. It contained over sixty amendments to Council's proposal.
Between the 3 December 1999 and 15 May this year there had been 14 more reports considered by the Council (excluding those on the creation of joint teams which has been removed from the draft Convention). Three weeks after the EP delivered its opinion to the Council a new consolidated version of the Draft Convention was produced (10 March) with major issues still outstanding between the Council members (the EU member states).
The parliament was given just three months by the Council to respond, the explanatory statement says: "The three months allotted are nothing compared to the four years or so for which th