Luxembourg, 02/06/2006 (Agence Europe) - On Thursday, following intense discussions, the Austrian Presidency managed to persuade Member States to adopt at unanimity, its compromise on the European evidence warrant (EUROPE 9203), which focuses on two specific areas: the possibility of refusing the warrant for reasons linked to territoriality and the definition of offences. Diplomatic sources informed EUROPE that, “this is not the high point in European legal cooperation but we have, all the same, managed to get a fairly solid compromise”. The scope of the territoriality clause called for by the Netherlands was considerably reduced, insofar as it will apply when an infringement is committed on all or part of its territory. Ministers said that applying such a clause will, however, have to be taken in “exceptional” circumstances and on a “case by case” basis. A diplomatic source indicated that, “Basically, the attitude at The Hague reflects the fear of having to transmit proof for infringements that are subject to less incrimination in the Netherlands (drug trafficking)”. All Member States will be able to make a declaration on how they will be able to utilise this clause. At the time of transposition, countries that want to use the territorial clause, will be able to (if they want to) follow the example of the Netherlands. The French Minister of Justice Pascal Clément indicated, however, that this was a “European advance”. He thought this method preferable to the derogation applying to everyone. The competent legal authority will also be able to decide on how this clause is used, the obligations will be based on having to consult Eurojust, which will have to give a recommendation on the matter. Mr Frattini noted to this effect that involving Eurojust sent out an “important political message” in the area of cooperation on criminal law. If the legal authority then decides by a reasoned opinion to not follow this recommendation, then the Council will have to be informed about it. With regard to the definition of offences, Germany also obtained an important concession from other Member States because of the constitutional problems it is experiencing (EUROPE 9183).
The general agreement provides that, for a list of 32 offences, double criminality may not be invoked when the offence concerned is punishable with at least three years imprisonment in the State issuing the warrant. However, Germany may, by a declaration, be granted a dispensation from this principle, subject to verification of double criminality in cases relating to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling. Germany had “a real problem” with its Constitution, said Mr Frattini, adding that it had to be given time to consider its position. The territoriality clause and the opt-out possibility could be reviewed in five years' time, thanks to a review clause incorporated in the compromise text. “We'll see what happens over the next five years, the aim is to have joint legislation,” said Austrian Interior Minister Liese Prokop at a press conference. The Commission proposal followed the same line with regard to mutual recognition as with the framework decision on the European Arrest Warrant. “Now that we have the European Arrest Warrant, we are completing the European area to combat organised crime,” said Mr Frattini. The agreement on the text, after three years of discussions in the Council, indicates nonetheless the huge difficulties the EU faces in taking forward cooperation in criminal justice. Hence, to prevent matters being blocked, the desire to move from unanimity in decision making on criminal justice to qualified majority, as provided for in the bridging clause proposed by the Commission on 10 May (see EUROPE 9189). On this text, the European Parliament will merely be consulted, whereas, if the bridging clause, provided for in Article 42 of the Treaty of Nice was applicable, the Parliament would be involved in the co-decision process.