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  • Europol and the European Court of Justice

    Bert Swart

    Standing Committee of Experts, Utrecht

    1. Should the Europol Convention assign a role to the European Court of Justice (ECJ)? This question divides Member States to such an extent that it was not possible for the Convention to be signed at the European Council in Cannes on 26 and 27 June 1995. Furthermore, ECJ jurisdiction is an issue which also affects other conventions, such as the draft Convention on the use of information technology for customs purposes, the draft Convention on the European Information System and the draft Convention for the protection of the Communities’ financial interests. The outcome of the debate on the Europol Convention will therefore have a decisive impact on the structure of conventions to be concluded within the context of the European Union.

    2. In autumn 1994, under the German Presidency, a draft of the Europol Convention was completed in which proposed that a role be assigned to the ECJ. Article 37 of the draft distinguished between four types of disputes:

    – those between Member States or between Member States and Europol;

    – those between individuals and Europol concerning the storage, use and provision of data;

    – those between Europol and its staff;

    – those concerning the appearance of Europol representatives as witnesses in civil or criminal proceedings.

    The ECJ was to be assigned a role in three of these four types of disputes, either as the court to which matters would be referred for a preliminary ruling, or, in the case of disputes between Europol and its staff, as the court of first instance. Only in disputes between Member States or between Member States and Europol was the court not to have any jurisdiction.
    The draft of 25 October 1994, reproduced by the House of Lords in its 1995 report on Europol, primarily reflected the views of the German Presidency. Not all Member States shared those views, this being particularly true of the UK.

    3. The Member States remained divided during the French Presidency. A compromise proposed by France on 20 June 1995 provided for disputes between Member States to be considered by the European Council in the first instance. If no agreement could be reached, the Member States involved were to agree amongst themselves as to how the dispute was to be resolved, and Member States could agree to refer disputes systematically to the ECJ. The key element of the French proposal is that individual Member States should be free to choose whether or not to refer disputes to the ECJ for settlement.

    4. During the Cannes Summit, 14 of the 15 Member States were in favour of assigning a role to the ECJ in the settlement of all four types of disputes between which the German draft had distinguished. The UK, however, was opposed to this idea and also opposed the French compromise, which made it possible for each Member State to go its own way. The UK Government argued against such compromises claiming that ECJ case law would in all probability indeed be followed by British courts.
    The failure to settle these differences of opinion meant that the Europol Convention could not be signed in Cannes. It is therefore all the more remarkable to read in the Conclusions of the Presidency that agreement exists between the Member States on the establishment of Europol. It is even odder that Member States are recommended to submit the convention to their national parliaments for ratification now in order that it can be adopted and applied as soon as possible. This would appear to imply that Member States are prepared to sign the Convention in order to set in motion parliamentary procedures for its approval, even though the Convention is not yet ready. As far as I am aware, this is a first in the history of international law. The success, in legal and political terms, of such a plan of action depends primarily on Member States’ constitutional laws and the positions adopted by their parliaments. Most governments are now reportedly going to sign the incomplete Convention soon. It was decided in the end that the question of the ECJ’s ‘possible jurisdiction’ should be resolved by the end of June 1996 at the latest.

    5. After the Cannes Summit, what are the prospects for the ECJ being given a full-fledged role in applying the Europol Convention? I am inclined to think that such prospects are limited.
    Only the UK is opposed on principle to the ECJ having a role. In all probability, the UK will not change its position as long as a Conservative government is in power, and probably will not do so even if a Labour government comes to power. Fourteen Member States support the idea of the ECJ having a say. There are, however, considerable differences between their positions. The majority of them do not view the issue as a matter of life or death. They favour a convention in which the ECJ’s role is to shape legislation but would also be happy with a European police service which was not under ECJ supervision. It would appear that ECJ jurisdiction is a sine qua non only for the Benelux countries. They made it known that they would not accept the Europol Convention without ECJ jurisdiction. The question is, therefore, how long van they maintain this position? First and foremost, it is difficult for smaller Member States to say ‘no’ to a convention which the majority of Member States want. In the case of the Netherlands, rejection would probably also result in Europol’s departure from The Hague. The Benelux countries have since signalled that they will in fact sign the incomplete Convention and submit it to their parliaments for approval.
    In the near future, much will depend on the positions which the national parliaments adopt. By procedurally separating the issue of ECJ jurisdiction from the rest of the substance of the Europol Convention, however, the governments have not made it easier for the national parliaments to refuse to approve the Convention.

    6. Anyone who is familiar with the rights of European citizens, will probably be clear on one thing: if Europol wishes to acquire a sufficient degree of legitimacy, it will have to supervised by a European court. The Convention introduces new forms of police co-operation and a new European body whose work is likely to have an enormous impact on the lives and rights of individual citizens. In the field of police co-operation, mistakes, errors and the abuse of powers could even destroy citizens’ lives. Furthermore, many of the Convention’s provisions are expressed in general and vague terms which could very easily give rise to differences in interpretation. In such circumstances, it is not sufficient for national courts to have the responsibility for resolving disputes between individuals and Europol. An international court which possesses authority and has a good reputation as regards the protection of human rights is indispensable. The ECJ possesses such authority and has such a reputation
    Why, then, is there so much opposition to or indifference towards ECJ jurisdiction? Is it the fear of a federal Europe, and is such fear justified? I do not believe that such fear is justified. Article K.3 of the Treaty on European Union clearly states that conventions may assign roles to the ECJ. The assignment of such roles cannot, in legal terms, be viewed as a step towards extending the Community’s powers. Furthermore, there are other examples of international courts being made responsible for interpreting conventions without there being a federal structure. The fact that the European Court of Human Rights is responsible for monitoring compliance with the European Convention for the Protection of Human Rights does not, for example, make the Council of Europe a federation of states. Finally, I am inclined to think that the willingness of 14 Member States to assign a role to the ECJ is not in most cases in any way the result of their desire to see a federal Europe. It is politically quite possible to be in favour of the ECJ and yet oppose the extension of Community powers to the third pillar. The British fear of a federal Europe is without foundation in this respect.

    7. After Cannes, we might ask where we go from here. There are three options: unconditional recognition of the ECJ as the court responsible for settling disputes concerning the application of the Europol Convention, exclusion of the ECJ, and freedom for individual Member States to go their own way.
    In view of the British position, the first option is not realistic. This leaves the second and third options. The second option is inevitable if uniformity and consensus within the European Union is paramount. Like earlier conventions concluded within the context of European Political Co-operation, the Europol Convention is a convention to which no reservations may be attached and which will take effect only when it has been ratified by all Member States. If this option is chosen, the price to be paid is that of leaving individual citizens’ rights totally without adequate protection. This therefore leaves the third option, under which only those Member States which so wish would accept ECJ jurisdiction. Something similar happened in the case of the European Court of Human Rights. In this case, the legal protection of Europe’s citizens is only partly sacrificed to accommodate political concerns, albeit with the loss of consensus. I take the view that the protection of Europe’s citizens must, however, be given priority.

    Bert Swart is professor criminoligy at the University of Utrecht