EU FAILS TO ADOPT COMMON RULES AGAINST

UNCLAS SECTION 01 OF 02 BRUSSELS 002148

SIPDIS

DHS FOR IAO, BORDER PATROL
DOJ FOR CRM
ROME ALSO FOR INS

E.O. 12958: N/A
TAGS: PREL PHUM PTER CMGT CVIS KCRM EUN
SUBJECT: EU FAILS TO ADOPT COMMON RULES AGAINST
RACISM AND XENOPHOBIA


SUMMARY
--------------


1. EU Justice and Home Affairs (JHA) ministers on
June 2 failed to agree on a draft piece of EU
legislation intended to establish common rules
against racism and xenophobia within the Union.
Delegations did agree on the necessity for an EU-
wide instrument requiring operators to retain
telecom data to allow for the investigation,
detection and pursuit of criminal offences. But
work on this will only proceed on the basis of a
step-by-step approach and Member States remain split
on details. No decision was taken either on the
establishment of a European Evidence Warrant (EEW)
for obtaining objects, documents and data for use in
proceedings in criminal matters. Full text of
Council conclusions will be transmitted to EUR/ERA.
Schengen-related, migration and other issues
discussed by Interior Ministers will be reported
separately. END SUMMARY.

FIGHT AGAINST RACISM AND XENOPHOBIA
--------------


2. The EU Council of Justice and Home Affairs in
Luxembourg June 2 failed to make any decisive
progress on developing a common area of freedom,
security and justice. One illustration was the
failure to agree on the draft Framework Decision
aimed at setting common rules against racism and
xenophobia. Luxembourg Justice Minister/Council
chair Frieden said the draft, in spite of many
amendments and three and a half years of internal EU
consultations, definitely could not rally the
required consensus. Frieden put a brave face on the
failure, saying this "should not be misinterpreted.
We all agree that racism goes against the
fundamental values of the EU, but we have to take
account of our different attitudes toward freedom of
speech."


3. Frieden invoked "internal political discussions"
in some Member States, and the absence of consensus
regarding mutual legal assistance. Some delegations
were not prepared to accept EU-defined rules on the
limitation of speech (denial of the Holocaust, for
instance, is not a criminal offence in all Member
States). Another stumbling block was the clause
requiring Member States to provide each other with
legal assistance in investigating race-related
crimes. Frieden concluded: "I don't see this as
something very negative. It can be seen as Europe's
respect for the constitutional traditions of its
Member States." The upcoming British Presidency
immediately served notice it was not going to pursue
discussions on the proposal. Commission Vice-
President Frattini told a press conference he was
"seriously considering" withdrawing the piece, but
reserved the right to submit another proposal at the
beginning of 2006 under the Austrian Presidency.

RETENTION OF TELECOM DATA
--------------


4. Ministers were also split on a draft Framework
Decision, following up on the March 2004 EU
Declaration on combating terrorism, requiring
providers of electronic communications services or
networks to retain specified data to allow for the
investigation, detection and pursuit of criminal
offences. A proposal drafted by the U.K., France,
Ireland and Sweden would require operators to keep
for at least 12 months all data containing the
source, routing, destination, time, date and
duration of communications as well as the location
of the telecom device used in making the call. The
rules would apply to providers of fixed line
services, mobiles phones, SMS (short messaging
service) operators and Internet service providers,
including voice over Internet Protocol (VOIP)
providers. Germany, Finland and Austria resisted
the plan as too costly and pushed to limit the scope
of requirements on telecom firms to retain data.
They also sought to exclude unsuccessful phone-calls
(when the caller could not get through) from its
scope. The issue of whether the Commission has
competence in this area is still being hotly debated
both within the Commission and in private industry.
(NOTE: For this proposal, the European Parliament
is only being consulted, but for approval of a new
proposal soon to be unveiled by the Commission using
a different legal basis, the EP's assent would be
needed. END NOTE.)


5. Frieden told reporters that "despite the
problems," progress was made and that all Member
States agreed "on the necessity for a data retention
instrument to prevent and effectively control
certain types of organized crime." He said
agreement could be possible in the near future,
based on a "step-by-step" approach. In a first
stage, the obligation for retention would apply to
fixed telephone lines and mobile telephones. As for
the Internet and uncompleted calls, Member States
not in a position to collect data could be granted a
transitional period (still to be determined) for
implementing EU rules. Frieden said Member States
were willing to prevent providers from incurring
costs not in proportion with the purpose of the
legislation. The issue will be further discussed at
the informal meeting of JHA ministers to take place
in the UK in September 2005.

EUROPEAN EVIDENCE WARRANT
--------------


6. No decision was taken on the draft Framework
Decision establishing a European Evidence Warrant
(EEW) for obtaining objects, documents and data for
use in proceedings in criminal matters. The purpose
of this draft is to implement the principle of
mutual recognition for a list of 32 offences
(already agreed, based on a corresponding list
adopted for the European Arrest Warrant). Among
sticking points is the "territoriality clause,"
whereby a Member State could refuse to hand over
evidence if it was related to an act that took place
on its territory. The question is whether this
right of refusal should exist independently or
whether it can only be invoked if the executing
country does not consider the act in question as a
crime (principle of dual criminality). Member
States were split down the middle on this question.
Per request of EU leaders, this draft Framework
Decision is supposed to be adopted by the end of

2005.

EUROPEAN ARREST WARRANT
--------------


7. The Council noted an evaluation by the
Commission of the implementation of the European
Arrest Warrant (EAW),which has now entered into
force in all 25 Member States. The Council tasked
the Commission to prepare another report by June
2006 on measures taken by the individual Member
States to reinforce compliance of national
legislation with the EU Framework Decision. EU
sources said Italy - the last country to enact the
warrant just a few weeks ago - called for the
evaluation to be more statistical than political,
thus not going into an assessment of why it took
some Member States so long to implement the EAW.

MCKINLEY