EU: Europol - "Compromise" protocol agreed (feature)
01 July 1996
When the text of the Europol Convention was agreed on 26 July 1995 fourteen EU governments signed a declaration saying that where disputes between Member States on the interpretation or application of the Convention occurred and were not resolved within six months they would "systematically submit the dispute in question to the Court of Justice of the European Communities."
This declaration by 14 EU governments left the role of the European Court of Justice (ECJ) undecided with the UK government resolutely opposed to the ECJ having any role at all. When the Convention was signed in July 1995 it was decided that the role of the ECJ had to be resolved by the end of the Italian Presidency of the EU in June this year. Finally on 24 July COREPER, the Committee of Permanent Representatives of the EU member governments, signed a Protocol to be attached to the Convention on the jurisdiction of the ECJ. This move cleared the way for the Convention to be put before national parliaments for ratification. The UK has already virtually completed the ratification process of the Convention, without any debate or vote, but will now have to put the Protocol through the same unopposed process (see Statewatch Vol 5 No 6).
What the Protocol says
The Protocol has eight short Articles and a Declaration. Article 1 says the ECJ "shall have jurisdiction.. to give preliminary rulings on the interpretation of the Convention.." Article 2.1 says that any member state can make a declaration to "accept the jurisdiction of the Court of Justice of the European Communities to give preliminary rulings on the interpretation of the Europol Convention.." Article 2.2 states in full that a Member State making a declaration under Article 1 may specify either:
"(a) any court or tribunal of that State against whose decisions there is no judicial remedy under national law may request the Court of Justice of the European Communities to give a preliminary ruling on a question raised in a case pending before it and concerning the interpretation of the Europol Convention if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment,
or
(b) any court or tribunal of that State may request the Court of Justice of the European Communities to give a preliminary ruling on a question pending before it and concerning the interpretation of the Europol Convention if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment." (Italics added)
Article 3 states that, as the Rules of Procedure of the ECJ apply then:
"any Member State, whether or not it has made a declaration pursuant to Article 2, shall be entitled to submit statements of case or written observations to the Court of Justice of the European Communities in cases which arise under Article 1."
In effect this would mean that the UK government, although not accepting the jurisdiction of the ECJ in relation to its national courts, will be able to put its views on cases arising in the other 14 Member States.
Agreement on ECJ, what agreement?
After a year long battle to get the UK government to accept the jurisdiction of the ECJ the other 14 EU governments have had to accept that the former was not going to change in any way. The UK, for its part, has accepted the right of the other 14 states to recognise the ECJ's role in the legal interpretation of the Europol Convention.
However, this is all the Protocol does. It leaves completely unresolved the issue of disputes between Member States or between Europol and a Member State - the very issues referred to in the Declaration by the 14 EU governments in July 1995. They are still committed to refer such disputes to the ECJ the UK still believes the Council of Ministers should decide such disputes behind closed doors. The Protocol can only be seen as a means of "papering over the cracks" which could be exposed if a dispute were to ari