Select Committee on European Union Thirty-Eighth Report


1. The events of 11 September 2001 elevated EU-US co-operation in combating terrorism to the top of the EU political agenda. Only nine days after the attack on the Twin Towers, the Justice and Home Affairs Council of 20 September called for the adoption of a series of measures aimed at enhancing co-operation in criminal matters. These included proposing to the United States that an agreement be negotiated between the EU and the US, on the basis of Article 38 TEU,[1] in the field of penal co-operation on terrorism (p 12, para. 7). The US expressed an interest in the proposal, and letters were exchanged between President Bush and Mr Verhofstadt, then President of the European Council.[2] The willingness of the Union to conclude such agreements was confirmed at the European Council of 19 October in Ghent. The Declaration by the Heads of State of the EU and the President of the Commission which followed stated that the Union is prepared to engage with the United States in reciprocal initiatives such as "facilitation of mutual judicial assistance between the competent authorities of the US and of the Member States, as well as extradition in connection with terrorism in accordance with the constitutional rules of the Member States".[3]

2. Following the conclusions of its informal meeting at Santiago de Compostella on 28 February 2002, the Justice and Home Affairs Council adopted on 26 April 2002 a negotiating mandate for an agreement on judicial co-operation in criminal matters on the basis of Articles 38 and 24 TEU. The mandate extended beyond terrorism to cover in particular "extradition, including the temporary surrender for trials and mutual legal assistance including the exchange of data, the setting up of joint investigation teams, the giving of evidence (via video conference) and the establishment of single contact points". Reflecting calls for not allowing extradition to take place if the defendant could be sentenced to death,[4] the Council conclusions expressly stated that "the Union will make any agreement on extradition conditional on the provision of guarantees on the non-imposition of capital punishment sentences, and the securing of existing levels of constitutional guarantees with regard to life sentences".[5]

3. Negotiations began in the summer of 2002. Despite calls for information on their themes and progress to be made public,[6] they were conducted in secrecy. The conclusions of the Justice and Home Affairs Council of 28 November 2002 indicate that the Council took note of the state of play and agreed on the strategy that the Presidency would have to follow for the further conduct of negotiations.[7] Negotiations continued until the end of February 2003, when the Justice and Home Affairs Council[8] decided to suspend them in order to allow time for delegations to examine all relevant aspects of the texts in view of concerns on specific points. The Council conclusions noted that if possible the Agreements should be concluded in May or June after having involved the parliaments in an appropriate manner.[9]

1   Article 38-in conjunction with Article 24 TEU-enables the conclusion of international agreements in third pillar matters by the Council on a recommendation by the Presidency, which may be authorised to open negotiations to that effect. Back

2   European Parliament, Committee on Citizens' Freedoms and Rights, Report containing a proposal for a European Parliament recommendation to the Council on the EU-USA agreements on judicial cooperation in criminal matters and extradition, A5-0172/2003, 22.5.03, p 8; see also W. Gilmore, The Twin Towers and the Third Pillar: Some Security Agenda Developments, European University Institute Working Paper Law 2003/7, p 10. Back

3   Point 4. Back

4   European Parliament Resolution of 13.12.2001 on EU judicial co-operation with the United States in combating terrorism (B5- 0813/2001). The Parliament also highlighted the need for any agreements to fully respect the ECHR with regard to fair trial rights and declared that no extradition could be allowed to the US for people who are to be tried before military tribunals. Back

5   p 13. Back

6   In its Recommendation B5-0540/2002 the European Parliament asked the Council to inform the European Parliament as well as national parliaments about the progress of negotiations. In a letter of 28 May 2002 to Romano Prodi, JUSTICE noted that a more informed contribution on specific areas under negotiation could be made "if the basic themes were in public". Statewatch, on the other hand, published on its website, in the summer of 2002, a (classified) version in the form of an early draft of the negotiating mandate. Back

7   p 15. Back

8   28 February 2003. Back

9   p 14. Back

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