US embassy cable - 05BRUSSELS2148

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