EU: JHA CouncilDecember 1998
01 November 1998
After a slow start to the Austrian Presidency the number of measures on the table at the Justice and Home Affairs Council (JHA Council) in Brussels on 3-4 December was voluminous - there were 20 items for discussion by the Ministers and a further 19 reports agreed on the nod as "A" Points (adopted without discussion). The main issues under discussion at the JHA Council were the "Action Plan establishing an area of freedom, security and justice" (see article page 2), the draft Convention on Mutual Legal Assistance (see front page feature), the draft EURODAC Convention and the "Rules of Procedure for the Joint Supervisory Body" of Europol. Then at the General Affairs Council on 7-8 December a further five "justice and home affairs" reports went through. The most significant of these was the creation of a High Level Working Group on Asylum and Migration which is to report back by March 1999.
The EURODAC Convention and Protocol
The official line is that there is now "global agreement" on the content of the Eurodac Convention, which covers the fingerprinting of all asylum seekers entering the EU. "Political agreement" was reached through a "compromise" on two outstanding issues - the jurisdiction of the Court of Justice and the management of the Eurodac fingerprint database by the European Commission.
The jurisdiction issue concerned the Court of Justice being able to give a preliminary ruling. The UK, Ireland and Denmark are each covered by Protocols in the Amsterdam Treaty allowing for each to make specific decisions on their involvement in measures moving to the "first pillar" (eg: free movement). The delay allows these countries to decide whether to join this measure or not. The compromise is that the draft Convention will be "frozen" until the Amsterdam Treaty comes into effect and then the Commission will put forward a Regulation for a community legal instrument. The UK has always agreed to the Court of Justice's role under such "first pillar" measures.
The delay is anyway not significant as the computer system to operate the immediate exchange of fingerprints will not be ready until the end of 1999 at the earliest.
The French government objected to the management of the Eurodac Central Unit being given to the Commission as it viewed the initiative as a police cooperation measure which did not properly belong to the Commission's remit (now or under the Amsterdam Treaty). The compromise is to be a declaration that giving the Commission the Eurodac system will be without prejudice to the management of the Schengen Information System (SIS).
Most of the discussion however centred on the Protocol to be added to the draft Eurodac Convention. The EU governments' rationale for setting up Eurodac is ostensibly to help them enforce the Dublin Convention that came into effect on 1 September 1997 and which by general consensus is not working as intended. Specifically it is intended, by the comparison of the fingerprints of asylum seekers, to "facilitate the determination of the [Member] State responsible for examining an asylum application". In short, to find out if the asylum seeker had previously tried to enter another EU Member State.
The first extension to this objective was the inclusion of the fingerprints of:
"every alien of at least fourteen years of age who is apprehended by the competent authorities in connection with the irregular crossing by land, sea or air of the border of that Member State having come from a third country and who is not turned back" (Article 3.1).
This provision would effect EU states differently. For example, people entering Germany by land from Poland (a third country) would be covered as would people landing at the UK's Heathrow airport but not people coming by boat, plane or sea from France, Netherlands etc. The draft does not define "land" borders therefore it is unclear whether this simply refers to the actual border line or to the "zones" behi