EU: Justice & Home Affairs Council
01 May 1995
(Luxembourg) The meeting of the Council of Justice and Home Affairs Ministers on 20-21 June failed yet again to agree on the text of the draft Europol Convention. However it did manage to resolve all the outstanding disagreements except that concerning the role of the European Court of Justice (ECJ). At the Cannes Summit of EU Prime Ministers it was agreed on 26 June to send the Convention to the 15 EU national parliaments for ratification minus the Article on "Jurisdiction" of the ECJ. With 14 EU states in favour of a role for the ECJ and one against, the UK, it was agreed to return to the question of the ECJ at the end of the Italian Presidency in June 1996 (after the UK general election).
Netherlands, Belgium and Luxembourg- have already said they would not ask their parliaments to ratify the Convention until the role of the ECJ had been resolved. The same view may well also be taken by the EU Committee of the German Bundestag.
The Convention as agreed by the Cannes meeting allows for a period of 11 months in order to implement it after the 15 EU parliaments have ratified it - a process which may well take two to three years. The Dublin Convention agreed in 1990 still awaits full ratification.
On the Council's agenda on 20 June were three draft Conventions - Europol, the Customs Information System (CIS), and one of the protection of the EC's financial interests - linked by the central issue of disagreement, whether or not there should be any role for the European Court of Justice (ECJ), based in Luxembourg. In all the draft Europol Conventions in circulation between November 1993 and November 1994 (of which there were some seven versions) the ECJ was included as the final court of appeal for disputes involving Europol staff and disagreements between two or more EU states, Article 37.
The key protagonists were the UK which adamantly maintains its opposition to the involvement of European Community institutions - the ECJ and the Court of Auditors - in any of the inter-governmental Conventions under consideration (see below). On the other side, equally adamant, were the Benelux countries - Belgium, Netherlands and Luxembourg - supported by Germany who argued that the creation of a EU-wide police institution requires legal recourse to the only court with the necessary powers and jurisdiction, the ECJ. The meeting on the main agenda, which started at 2.30pm and unusually lasted late into the evening (10pm) without any resolution to the problem.
The UK Ministers - Home Secretary Michael Howard and Minister of State Mr Fraser - tried to introduce a number of ploys to exclude the ECJ. First they argued that if a court was needed to decide on disputes it should be the European Court of Human Rights in Strasbourg. This was rejected because it jurisdiction was limited to individual cases while the ECJ could embrace the whole body of law in coming to a judgement directly related to the European Community. Second they put forward the idea that Article 182 of the 1957 Treaty of Rome (which created the European Community) could be used to resolve disputes between two EU members. This idea produced a hiatus - for about an hour - while the legal advisers dug up the clause. This too was rejected partly because it did not cover the individual's right of appeal to a court and it only referred to "matters related to this Treaty" not intergovernmental cooperation which is outside the Community structure. Nor has the EU agreed to adopt the European Convention on Human Rights. The French Presidency then proposed a "compromise", to deal with disputes for Europol staff and between EU states. After a "cooling off" period of six months a two-thirds majority could agree to send a dispute to the ECJ. The "compromise" immediately encountered not just the UK government's opposition to the ECJ but equally its opposition to any idea of majority voting. Mr Howard told the meeting that: “if countries want to include the ECJ for individual right