EN
COUNCIL OF
THE EUROPEAN UNION
1 JANUARY 2005
ST
GENERAL SECRETARIAT
DG F - COMMUNICATION
Living in an Area
of Freedom, Security
and Justice
COUNCIL OF THE EUROPEAN UNION
Living in an Area
of Freedom, Security
and Justice
Table of contents
1. Introduction
1.1
1.2
1.3
1.4
1.5
Why build an area of freedom, security and justice?
The European area of freedom and of free movement of persons
The European area of security
The European area of justice
The external dimension of JHA
2. The main stages of development of JHA
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2
13
The European Council
The Council of the European Union
The Presidency
The General Secretariat of the Council
The Member States
The European Commission
The European Parliament
The European Economic and Social Committee
The Committee of the Regions
The Court of Justice of the European Communities
4. The legal instruments of the area of freedom, security and justice
4.1
7
The early stages of police cooperation: the TREVI Group
The Schengen area, a laboratory for intergovernmental cooperation
The Treaty of Maastricht and the third pillar of the European Union
Decision-making under the third pillar
Assessment and limits of the third pillar
The advances of the Treaty of Amsterdam
The Tampere programme
The Treaty of Nice and the Charter of Fundamental Rights
The contribution of the draft European Constitution
3. The key players in European JHA policy
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
4
“Third pillar” instruments
4.1.1 Conventions
4.1.2 Framework decisions
4.1.3 Decisions
4.1.4 Common positions
Living in an Area of Freedom, Security and Justice
17
4.2
Community instruments
4.2.1 Regulations
4.2.2 European directives
4.2.3 Decisions
4.2.4 Recommendations and opinions
4.2.5 Resolutions, declarations and conclusions
5. The acquis of the area of freedom, security and justice
5.1
The European area of freedom and of free movement of persons
5.1.1 Schengen, an area of variable geometry
5.1.2 Union citizenship
5.1.3 The Union, a rampart of democracy and freedoms in the Member States
5.1.4 The fight against discrimination
5.1.5 The European Union common visa policy
5.1.6 The European Union asylum and immigration policy
5.2
The European area of security
5.2.1 European police cooperation and Europol
5.2.2 The European Police College
5.2.3 The Schengen Information System (SIS)
5.2.4 Combating illegal immigration and trafficking in human beings
5.2.5 Integrated management of EU external borders
5.2.6 External relations in the field of JHA
5.3
The European area of justice
5.3.1 Judicial cooperation in civil matters
5.3.2 Judicial cooperation in criminal matters
5.3.3 Mutual recognition of judicial decisions in criminal matters
and the European arrest warrant
5.3.4 Respect for procedural safeguards
5.3.5 The approximation of the criminal laws of the Member States
5.3.6 The emergence of integrated judicial cooperation:
the European Judicial Network and Eurojust
6. An ongoing endeavour
6.1
6.2
20
37
Assessment and prospects of the Tampere programme
Priorities for the coming years: The Hague programme
Justice and Home Affairs in the European Union
3
European citizens may move freely
in the Schengen area.
1. Introduction
Freedom of movement in an area without internal borders, the admission of foreigners
under fitting and fair conditions, a safe environment in which to live, access to justice
under equal conditions for all: these are just a few of the practical benefits of European
integration. The European Union has developed policies to achieve these aims, policies
affecting the lives of both European citizens and third country nationals residing in the
Union.
Cooperation in the field of Justice and Home Affairs, better known under its abbreviation
“JHA”, was officially written into the Treaty on European Union (TEU), which entered into
force in 1993. In the context of completion of the Single Market and preparation of the
European Union's single biggest enlargement in 2004, JHA policy has made huge strides
forward over the past decade. It forms part of a complex institutional architecture and rests
on a variety of legal instruments.
The Tampere European Council in 1999 offered the occasion to link the creation of an area
of freedom, security and justice - announced in the Treaty of Amsterdam – to an ambitious
five-year work programme.
On freedom, the aim is to extend free movement of persons but also to promote Union citizenship,
protect fundamental rights and facilitate the integration of third country nationals.
The area of security covers the fight against all forms of organised crime, such as illegal
immigration, trafficking in human beings, drug trafficking and international terrorism.
With the area of justice, the Union's aim is to guarantee European citizens equal access
to justice and to facilitate cooperation between Member States' judicial authorities.
Today, the development of JHA seems as important as making Europe the world's most
competitive economy by 2010. The creation of an area of freedom, security and justice
responds to the practical concerns of European citizens.
1.1 Why build an area of freedom, security and justice?
The creation of an area of freedom, security and justice is closely tied to completion of
the Single Market and its four “freedoms”. The free movement of persons, one of the four
fundamental freedoms, resulted in the abolition of controls at internal borders of the
countries belonging to the Schengen Area1. This raises issues for the internal security of each
Member State and of its residents. The corollary to the abolition of internal borders is the
strengthening of the Union's external borders and the definition of a common visa, asylum
and immigration policy.
1 On 1 May 2004, 13 Member States, plus Norway and Iceland, were full members of this Area. Controls were still in place at the border
between members of the Schengen Area and the 10 new Member States. Ireland and the United Kingdom apply special provisions.
4
Living in an Area of Freedom, Security and Justice
Combating organised crime is a priority
for the European Union.
1.2 The European area of freedom and of free movement of persons
The European Union defines itself first and foremost as a community of values, founded on
the principles of freedom, democracy, respect for human rights and fundamental freedoms,
as well as the rule of law. These principles are shared by all the Member States.
The Union respects fundamental rights as guaranteed by the 1950 European Convention on
Human Rights and as laid down in the Charter of Fundamental Rights proclaimed in Nice on
7 December 2000. The “freedom” dimension of the area of freedom, security and justice
concerns both European citizens and nationals of third countries residing temporarily or
permanently in the Union: tourists, students, foreign workers, refugees, asylum seekers
or illegal immigrants awaiting a decision on their final destination.
Better known under the name of “Schengen Area”, free movement of persons constituted an
indisputable advance in European integration, one gradually to be extended to the entire
Union, not only to EU citizens, but also to third country nationals residing in the Union.
1.3 The European area of security
Europe's internal security is threatened by different forms of organised crime: terrorism,
trafficking in human beings and drug trafficking, illegal immigration, cybercrime and so on.
Criminals must not be allowed to take advantage of the territorial restrictions of criminal law to
commit offences in one Member State and take refuge in another. This is why the European
Union has decided to strengthen operational cooperation between police forces in the Member
States, while creating central institutions (Schengen Information System and Europol) charged
with collecting and exchanging data on criminal activities. Following the terrorist attacks of
11 September 2001 in the United States and of 11 March 2004 in Madrid, the Union gave priority
to coordinating counter-terrorism activities.
Justice and Home Affairs in the European Union
5
The equality of European citizens before the law is an essential aspect
of the European judicial area.
1.4 The European area of justice
Increasing interaction between European citizens – whether tourists, students, businessmen
or employees – results in a growing number of cross-border cases going to court, which must
be settled fairly irrespective of the nationality of the parties and the place of trial. Better than
the approximation of national laws, mutual recognition of judicial decisions has become the
cornerstone of the European area of justice being built. Its aim is equal access to justice for
all. The European Union has also created instruments like the European arrest warrant to
facilitate the transfer of alleged offenders from one Member State to another.
1.5 The external dimension of JHA
The creation of an area of freedom, security and justice would be incomplete if it failed to
take account of the impact of European policies on third countries and their nationals.
In recent years, the external dimension of cooperation in matters of Justice and Home Affairs
has taken on particular importance.
In the wake of the biggest enlargement of the Union, JHA is still an ongoing endeavour,
equal to the myriad challenges Europe will have to meet in the coming years.
6
Living in an Area of Freedom, Security and Justice
The town of Schengen, in Luxembourg, is famous throughout Europe:
it was here that the Schengen Agreement was signed in 1985.
2. The main stages of development of JHA
Cooperation in the area of Justice and Home Affairs is a recent European Union policy.
It was not explicitly written into the founding Treaty of Rome of 25 March 1957, which
gave European integration essentially economic objectives: the gradual creation of
a customs union and a common market. Mentioned for the first time in the Treaty
of Maastricht, JHA policy has reached its most advanced form in the draft European
Constitution.
2.1 The early stages of police cooperation: the TREVI Group
From the 1970s, the Member States of the European Community started experiencing the
need to strengthen their cooperation in the face of the threat of terrorism (the action of the
“Red Brigades” in Italy and of the “Red Army Fraction” in Germany). Created under the impetus
of the Rome European Council on 1 December 1975, the TREVI Group2 met for the first time on
29 June 1976 at ministerial level3 to address the question of combating terrorism. It gave itself
the objective of exchanging information on the terrorist threat and working out complementary
strategies between Member States.
The following years, the group regularly brought together the Home Affairs and/or Justice
Ministers, senior officials and experts outside the framework of the European treaties.
In 1985, the TREVI Group's remit was extended to illegal immigration and the fight against
organised crime. The TREVI Group laid the foundations for JHA policy, particularly in matters
of counter-terrorism (TREVI I), police cooperation (TREVI II), the fight against international
crime (TREVI III) and the abolition of borders (TREVI 1992).
2.2 The Schengen area,
a laboratory for intergovernmental cooperation
The aim of gradually doing away with controls on persons at internal borders in the
European Community emerged during the 1980s at the initiative of Germany and France.
The first Schengen Agreement was symbolically signed on 14 June 1985 in Schengen
(Luxembourg) by Germany, Belgium, France, Luxembourg and the Netherlands. This text,
which entered into force on 2 March 1986, lays down the principle of abolishing controls
at common borders and postpones implementation of this principle to a subsequent
convention, subject to implementation of “compensatory measures”.
The Convention implementing the Schengen Agreement (better known as the “Schengen
Convention”) was signed on 19 June 1990 by the same five Member States. It constitutes
the heart of the system for doing away with border controls on persons. Indeed, it establishes
implementing conditions leading to the abolition of internal border checks.
2 Referring to the fountain in Rome of the same name and to the acronym: Terrorism, Radicalism, Extremism and International Violence.
3 Member State Home Affairs and/or Justice Ministers in charge of countering terrorism.
Justice and Home Affairs in the European Union
7
Cooperation in justice and home affairs represents
the third pillar of the Treaty of Maastricht.
The Schengen area became a reality on 26 March 1995, first of all for Germany, Benelux,
France, Spain and Portugal. Other States subsequently joined their ranks (see page 20).
Given the participation of a limited number of Member States, the Schengen area is the first
example of “enhanced cooperation” in the European Union, governed by a specific decisionmaking process (see page 10).
2.3 The Treaty of Maastricht and the third pillar of the European Union
The Treaty of Maastricht created the European Union. Signed on 7 February 1992, it entered
into force on 1 November 1993. This new entity has a single institutional framework
(European Council, Council of Ministers, Commission and European Parliament) and three
“pillars”: the European Communities, the Common Foreign and Security Policy (CFSP) and
cooperation in the fields of justice and home affairs (JHA policy). For JHA, the Treaty on
European Union led to the creation of a Coordination Committee in the Council.
JHA incorporates and organises the intergovernmental cooperation that has been developing
since the 1970s. It is laid down in Title VI of the Treaty of Maastricht.
This cooperation is based on nine matters of common interest:
•
•
•
•
•
•
•
•
•
asylum,
crossing of external borders,
immigration,
policy relating to nationals of third countries,
the fight against drugs and drug addiction,
the fight against fraud on an international scale,
judicial cooperation in civil matters,
judicial cooperation in criminal matters,
customs and police cooperation, including the creation of Europol.
What is more, the common provisions of the new Treaty mention the creation of a citizenship
of the European Union matched with specific rights (see page 22).
8
Living in an Area of Freedom, Security and Justice
Monika Lamperth,
Minister of Home Affairs, Hungary in 2004
2.4 Decision-making under the third pillar
In contrast with the European Communities, the second (CFSP) and third (JHA policy) pillars
of the European Union are intergovernmental cooperation mechanisms with specific decisionmaking procedures. For these two pillars, the Council of Ministers is the decision-making
body and has exclusive power to define common positions and adopt joint actions. It acts
unanimously but has the option to decide (unanimously) that implementing measures shall
be decided by qualified majority. For third pillar matters, the Council of Ministers, known as
the “Justice and Home Affairs Council”, brings together Member States' Justice and/or Home
Affairs Ministers.
INTERGOVERNMENTAL MODEL
AND COMMUNITY METHOD
The intergovernmental model is based on a
decision-making process based primarily on
diplomatic negotiations between States. It
safeguards State sovereignty in politically
sensitive areas. It also offers the possibility
of using flexible forms of cooperation and
combining the protection of national interests
with the development of coordinated initiatives.
Use of the intergovernmental model rather
than the “classic” Community method can be
put down to the initial reluctance of Member
States to accept major transfers of sovereignty
in areas coming under their inherent powers
(internal security, defence, foreign policy, etc).
The requirement of unanimity is nonetheless
proving problematic in a Union of 25 Member
States.
2.5 Assessment and limits of the third pillar
In five years, the Council has adopted more than 300 JHA decisions of various types. Particular
emphasis was placed during this period on the law enforcement aspect of internal security,
especially police cooperation and judicial cooperation in criminal matters, where political will
existed between the Member States. The Europol Convention (signed in 1995, it entered into
force on 1 July 1999) was the major achievement under the third pillar. It led to the creation of
a European Police Office (see page 28). In addition, cooperation in the fields of justice and home
affairs initiated a culture of working side-by-side and sharing information among the police,
justice and customs administrations of the Member States. The third pillar has nonetheless been
severely criticised for the slowness, lack of transparency and complexity of the legislative procedure4.
The Community method refers to a decisionmaking process where the European
Commission, which has exclusive power
of initiative, presents legislative proposals
that are adopted jointly by the Council of
Ministers and the European Parliament under
the so-called “co-decision” procedure. Their
acts are monitored by the Court of Justice of
the European Communities. In the Community
pillar, Council decisions are adopted either
unanimously or by qualified majority
(taking account of Member States' respective
demographic weight). Compared to the
intergovernmental model, this decisionmaking procedure offers the advantage of
being more effective, and also guarantees
transparency along with democratic and
judicial scrutiny.
The partial “communitisation” of the third pillar, namely the transfer of certain matters to
the Community pillar and application in full of the Community method has been proposed as
a solution for the many shortcomings of the third pillar.
2.6 The advances of the Treaty of Amsterdam.
The term “communitisation” refers to the
transfer of certain matters originally under
the third pillar to the “Community” or first
pillar of the European Union. These matters
are henceforth subject to the Community
decision-making method.
The area of JHA was one of the major issues of the Intergovernmental Conference of 19961997. The idea was to abolish certain obstacles to the free movement of persons while
making internal security a fully-fledged objective of the European Union. When all is said and
done, the signature of the Treaty of Amsterdam on 2 October 1997 made the legislative
procedure for JHA matters more effective and democratic, and clarified the legal basis of
decisions in the field of justice and home affairs.
Under the new Treaty, a large part of cooperation in the field of JHA comes under the
Community method: participation of all the institutions, control of legality by the Court of
Justice of the European Communities and use of legal instruments best adapted to the
Monika Lamperth,
Minister of Home Affairs, Hungary in 2004
“The issue of sovereignty was very
important during the accession negotiations.
When a country loses part of its sovereignty,
it has to know why.”
4 At the time the Amsterdam Treaty entered into force, only the texts on Europol (and the Dublin Convention concluded before the Treaty of
Maastricht) had entered into force out of the nine international conventions and 10 protocols related to it, concluded during the six years
following adoption of the Treaty of Maastricht (1993-1999). The Dublin Convention signed in June 1990 between 11 Member States, which
entered into force in 1997, sets up a legally binding mechanism to determine the Member State responsible for reviewing an asylum application.
Justice and Home Affairs in the European Union
9
objectives sought. “Communitisation” concerns visa policy, conditions for issuing residence
permits to immigrants, asylum procedures and rules for judicial cooperation in civil matters.
The third pillar now covers only police and judicial cooperation in criminal matters.
WHAT IS “ENHANCED COOPERATION”?
The Member States that so wish may decide
to engage in enhanced cooperation that is
open to participation by all the Member
States. Such cooperation has recourse to the
institutions, procedures and mechanisms laid
down by the Treaty on European Union and
the Treaty establishing the European
Community. Initially foreseen only under the
Community framework and the third pillar,
enhanced cooperation is now possible under
the second pillar, following the entry into
force of the Treaty of Nice. At least eight
Member States must be involved to launch
enhanced cooperation. In terms of procedure,
the Council acts by qualified majority on all
enhanced cooperation proposals. In the
Community framework, the European
Parliament's assent must be obtained when
enhanced cooperation concerns a field subject to codecision. The right of each Member
State to block enhanced cooperation through
the right of veto has been abolished and
replaced by the possibility of referring the
matter to the European Council.
Although the principle of unanimity has been maintained, this pillar includes certain
elements of the Community method. Instruments are in large part aligned to those of
Community law, for example: decisions and framework decisions have a great deal in
common with first pillar regulations and directives, though without having direct effect.
Furthermore, agreements may enter into force in the countries that have ratified them once
at least half the Member States have proceeded with ratification. The Commission shares the
right of initiative with the Member States. The European Parliament is consulted on all third
pillar measures with the exception of common positions. The role of the Court of Justice of
the European Communities is strengthened and the approximation of criminal law is being
taken into consideration for the first time.
The Amsterdam Treaty also introduced the Schengen Convention into the Union's single
institutional framework, putting an end to the contradictions resulting from the existence of
two separate systems. The JHA Executive Committee is replaced by the Council of Ministers
and the Schengen Secretariat is integrated into the General Secretariat of the Council, even
though not all EU Member States are members of the Schengen area (see page 21).
By agreeing to this exception, the European Union put into practice for the first time the
“enhanced cooperation” mechanism written into the Amsterdam Treaty. The 13 States involved
(the 15 pre-2004 Member States, less the United Kingdom and Ireland) are now pursuing
their cooperation according to the legal logic of the new Treaty. A special system has been
established for Denmark.
2.7 The Tampere programme
With a view to the gradual creation of an area of freedom, security and justice, the Treaty of
Amsterdam established a period of five years from its entry into force (May 1999) during
which the Council would continue to act unanimously when adopting common measures in
the fields of asylum, immigration and controls at the Union's external borders.
Due to the growing importance of JHA in Union policies, a special European Council was held
in Tampere in October 1999 under the Finnish Presidency to focus on this policy area. In
Tampere, the Heads of State or Government launched an ambitious five-year programme for
the implementation of the area of freedom, security and justice. The European Council
Conclusions confirmed that internal security is henceforth a priority for the Union and that
European citizens are at the heart of the AFSJ. As with completion of the internal market,
a follow-up mechanism was introduced in the form of a “scoreboard” updated every six months
by the European Commission to give an overview of progress to date and the measures
still needed.
10
Living in an Area of Freedom, Security and Justice
The Tampere European Council laid down the bases of an ambitious
European policy in Justice and Home Affairs.
The priorities of the JHA programme have in essence remained unchanged since the
Tampere European Council:
•
•
•
•
implementation of a European asylum and immigration policy,
creation of a European area of justice,
combating crime at Union level,
stronger external action.
On asylum and immigration, the aim is to develop a common European policy based on
a partnership with migrants' countries of origin, a common European asylum system,
fair treatment for nationals of third countries residing legally in the Union, and the fight
against illegal immigration.
In the European judicial area, emphasis is placed on giving citizens effective access to justice
and on developing the principle of mutual recognition of judicial decisions, the “cornerstone”
of judicial cooperation in criminal and civil matters in the Union, as a complement to the
approximation of criminal law. The European Council Conclusions also mention the creation
of a new judicial cooperation unit, Eurojust.
Finally, three guidelines steer the fight against organised and cross-border crime: a prevention
policy at Union level, closer cooperation between Member State police and judicial administrations,
and specific action by the Union to combat money laundering.
2.8 The Treaty of Nice and the Charter of Fundamental Rights
The Treaty of Nice, signed in 2001, did not appreciably modify the provisions of the
Amsterdam Treaty in matters of JHA: certain first pillar decisions (visas, asylum, immigration
and judicial cooperation in civil matters) were switched to qualified majority and Eurojust was
explicitly mentioned.
More so than the Treaty of Nice, the major contribution of the French Presidency to JHA was
the solemn proclamation of the Charter of Fundamental Rights in December 2000 (see page 23).
The Charter brings together into a single easy-to-read text all the personal, civil and political,
economic and social rights guaranteed to European citizens. Its legal value depends upon the
final adoption and ratification of the draft Constitutional Treaty.
Justice and Home Affairs in the European Union
11
Logo of the European Constitution
2.9 The contribution of the future European Constitution
The proposed European Constitution drafted by the Convention on the Future of Europe
introduces important changes in Justice and Home Affairs. Because it is written into the
Treaty, the Charter of Fundamental Rights acquires constitutional value. The Union thus
introduces a bill of rights on which judgements by the Court of Justice of the European
Communities can be based.
CHRONOLOGY
June 1976: first meeting of TREVI Group
June 1985: signature of first Schengen
Agreement by five Member States
June 1990: signature of the Schengen
Convention
The draft Constitution also does away with the “pillars”. All JHA policy will thus be
“communitised” if the draft Constitution is ratified by all the Member States. This policy is
defined in the third part of the new text under the name “Area of Freedom, Security and
Justice”, which covers border controls, asylum, immigration and police and judicial cooperation.
February 1992: signature of the Treaty on
European Union (Treaty of Maastricht)
November 1993: entry into force of the
Treaty of Maastricht
March 1995: entry into force of the Schengen
Convention in six Member States
Like other Community policies, the new JHA policy will not be subject to the rule of unanimity,
with the exception of a limited number of matters in the field of judicial cooperation (civil and
criminal) and operational cooperation between police authorities.
October 1997: signature of the Treaty
of Amsterdam
May 1999: entry into force of the Treaty
of Amsterdam
The other important contribution of the Constitution concerns the objectives of JHA policy,
which in several areas replaces the concept of “common system” with the idea of “minimum
standards”. The Union is thus set to develop a common policy on asylum and temporary
protection, including uniform status. The Union is also invited to develop a common
immigration policy. These actions are based on a principle of solidarity and fair sharing of
responsibility between the Member States, including the financial implications.
October 1999: Tampere European Council
December 2000: solemn proclamation
of the Charter of Fundamental Rights
February 2001: signature of the Treaty
of Nice
February 2003: entry into force of the Treaty
of Nice
The most sensitive questions concern judicial cooperation in criminal matters and police
cooperation, two areas where the Commission does not have an exclusive right of initiative,
but shares it with one quarter of the Member States. The biggest advance in criminal
matters, however, is that the principle of mutual recognition of judgements and judicial
decisions is written into the treaty.
July 2003: conclusion of the Convention
on the Future of Europe, which drew up
a European Constitution
October 2003: launch of the
Intergovernmental Conference on the draft
Constitution
June 2004: adoption of the European
Constitution by the Heads of State or
Government
To this end, a framework law may establish “minimum rules” concerning: mutual admissibility
of evidence, the rights of individuals in criminal procedures, victims' rights and the definition
of sanctions for particularly serious crimes (from terrorism to organised crime), the list of
which may only be extended by the Council acting unanimously.
October 2004: signature of the European
Constitution
The draft European Constitution was adopted in June 2004 by the Heads of State or
Government. It includes most of the proposals adopted by the Convention on the Future of
Europe. Its provisions will only be valid once the new treaty enters into force following
ratification by the Member States.
Extract from the Preamble to the European
Constitution
“The peoples of Europe, in creating an ever
closer union among them, are resolved to
share a peaceful future based on common
values.”
12
Living in an Area of Freedom, Security and Justice
The Justice and Home Affairs Council is the central
decision-making body in JHA matters.
3. The key players in European JHA policy
Decision-making in matters of justice and home affairs fits into a complex institutional
framework. Historically, the Member States have been the driving force behind the
development of JHA policy. With the entry into force of the Amsterdam Treaty,
the powers of the Commission, the European Parliament and the Court of Justice of the
European Communities have been strengthened. Given the difficulty of coming to
unanimous agreement in a Union of 25 Member States, the Community method is used
more and more often.
3.1 The European Council
The European Council brings together at regular intervals (at least once every six months) the
Heads of State or Government of the Member States and the President of the European
Commission. It defines priorities and objectives and gives such impetus as necessary for the
development of the Union, including in matters of justice and home affairs. The first European
Council focusing exclusively on JHA was held in Tampere (Finland) on 15 and 16 October 1999.
The Heads of State or Government now hold regular exchanges of views on justice and home
affairs. The development of a common asylum and immigration policy, for example, was defined
as a priority by the Heads of State or Government at the Seville European Council on 21 and
22 June 2002.
3.2 The Council of the European Union
The Council of the European Union is composed of representatives of each Member State at
ministerial level. The field of JHA is generally addressed in the “Justice and Home Affairs
Council” by the Member States' Justice and/or Home Affairs Ministers.
The Council's deliberations are prepared by the Committee of Permanent Representatives
(Coreper), composed of Member States' representatives to the European Union and their
assistants. The work of this Committee is in turn prepared by committees and working groups
composed of Member States' representatives.
Among these, certain committees play a specific role of providing coordination and expertise,
for example the Committee for the Coordination of police and judicial cooperation in criminal
matters.
The Council constitutes an essential decision-making body in justice and home affairs. With
the European Parliament in some cases, the Council has the power to adopt or reject the
legislative texts proposed by the Commission or the Member States. The Commission attends
Council meetings to present and defend its proposals.
Justice and Home Affairs in the European Union
13
Javier Solana,
Secretary-General of the Council
Cooperation between the Member States is vital
to ensure effective JHA policies.
Many Council decisions in the field of justice and home affairs form an integral part of the
Union's “common policies”, with the exception of police and judicial cooperation in criminal
matters, which still comes under the intergovernmental sphere. Provisions exist in the Treaty
for a gradual transition to qualified majority in a growing number of “communitised”
matters, particularly visas, asylum, immigration and controls at EU external borders.
3.3 The Presidency
The Presidency of the European Union rotates among each of the Member States, by turns,
every six months. The Member State in question chairs the European Council, the Council of
the European Union and the committees and working groups charged with preparing deliberations.
The Presidency plays a role of providing momentum in deliberations and decisions by the
Council, including in JHA.
3.4 The General Secretariat of the Council
The General Secretariat of the Council assists the Presidency in carrying out its tasks, under
the supervision of the Secretary General. The individuals who work at the Council are highly
qualified civil servants. The Secretariat provides general coordination of the Council's activities.
Directorate-General H of the Council handles the following matters: asylum and immigration;
police and customs cooperation; judicial cooperation; the Schengen Information System;
the Schengen area and the protection of personal data. The General Secretariat can chair certain
working groups in exceptional cases, when matters being debated are technical in nature,
and when the Committee of Permanent Representatives (Coreper) adopts a decision to that effect.
3.5 The Member States
The Member States of the European Union stay informed and consult one another in the
Council to coordinate their action and to develop cooperation between the ministries and
administrations concerned. They defend common positions in international bodies. They
may also make individual proposals to the Council for the adoption of common positions,
decisions or framework decisions, or for the drafting of justice and home affairs conventions
under the third pillar (police and judicial cooperation in criminal matters). Above all, they
react to the Commission's proposals and exercise their right of vote.
Javier Solana, Secretary-General of the
Council
“Cooperation between the Member States
in justice and home affairs is crucial to
ensuring stability, security and prosperity,
not only within our borders, but also for
our closest neighbours.”
14
Living in an Area of Freedom, Security and Justice
Antonio Vitorino,
European Commissioner in charge of Justice
and Home Affairs 1999-2004
The European Parliament is the democratic
body that debates JHA policies.
3.6 The European Commission
Since 1 May 2004, the European Commission has an exclusive right of initiative in matters of
justice and home affairs under the Community pillar. It shares this right with the Member
States for police and judicial cooperation in criminal matters (third pillar). The President of
the European Commission takes part in European Councils alongside the Heads of State or
Government. The Commission also participates in Council meetings at the Ministerial,
Coreper, committee and working group levels. One Member of the Commission is specifically
charged with Justice and Home Affairs. He has the support of a Directorate-General for Justice
and Home Affairs.
3.7 The European Parliament
The European Parliament's role in the field of JHA was strengthened by the Treaty of
Amsterdam. Since 1 May 2004, the European Parliament is co-legislator with the Council for
visa, asylum and immigration policy. The European Parliament and the Council are also
co-legislators in many areas of judicial cooperation in civil matters. The reports submitted to
the European Parliament plenary session are initially debated in EP committees, particularly
the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs.
The Presidency consults Parliament on all decisions with legal value under police and judicial
cooperation in criminal matters. The Presidency and the Commission also regularly update
the European Parliament on work in progress. Finally, the European Parliament holds an
annual debate on progress achieved in this field.
3.8 The European Economic and Social Committee
As an advisory assembly representing organised civil society, the Economic and Social
Committee provides expertise for the European Parliament, the Council of the European
Union and the Commission. The Committee issues opinions in the cases provided for by
the Treaties, and in all cases where the institutions consider it advisable. It may also be referred
to on an exploratory basis by one institution or another, or may itself take the initiative
of issuing opinions.
Antonio Vitorino, European Commissioner
in charge of Justice and Home Affairs
1999-2004
“The area of freedom, security and justice
was created to facilitate the daily life of
citizens, whether in the exercise of their
individual and collective rights or if they
find themselves obliged to turn to the
courts to assert their rights fully.”
Justice and Home Affairs in the European Union
15
3.9 The Committee of the Regions
The Committee of the Regions is the political assembly where the views of regional authorities
are brought to the heart of the European Union. It issues opinions in the cases provided for
by the Treaties. The Commission, the Council and the European Parliament can consult the
Committee on proposals they consider will have a major impact at local and regional level,
particularly in matters of justice and home affairs. The Committee of the Regions can also
issue opinions on its own initiative.
3.10 The Court of Justice of the European Communities
The Treaty of Amsterdam gave the Court of Justice the power to issue preliminary rulings on
the validity and interpretation of framework decisions and conventions in certain cases
(third pillar), and of regulations and directives (Community pillar). Above all, the Court has
jurisdiction to rule on all disputes between Member States over the interpretation or application
of measures adopted in the field of justice and home affairs. If the European Constitution is
adopted, the Court will certainly have the opportunity to issue a judgement on the basis of
the Charter of Fundamental Rights which is written into the new Treaty.
16
Living in an Area of Freedom, Security and Justice
4. The legal instruments of the area of freedom,
security and justice
The European Union is first and foremost based on the rule of law. Decisions in the field
of justice and home affairs take the form of legal instruments adopted by the Council.
The legal instruments of the area of freedom, security and justice differ between the
Community (first) pillar and the third pillar (police and judicial cooperation in criminal
matters).
The Treaty of Amsterdam helped clarify and simplify instruments. This does not however
bring into question the validity of conventions adopted by Member States under international
public law, such as the European Convention on Human Rights of 4 November 1950 or the
1951 Geneva Convention on Refugees.
4.1 “Third pillar” instruments
The legal instruments of the third pillar were originally based on the model of the second
pillar (common foreign and security policy). Before the adoption of the Treaty of Amsterdam,
the Council's most important JHA legal instruments were classic international conventions.
Implementing conventions is slow and difficult however, so the Treaty of Amsterdam created
two new instruments: decisions and framework decisions.
4.1.1 Conventions
Conventions are a traditional instrument of international law. The Council of the European
Union may draw up conventions and recommend their adoption by the Member States.
Unlike common positions and other decisions, conventions had to be ratified by the national
parliaments of all the Member States until the time the Treaty of Amsterdam entered into
force. Since then, conventions apply, with certain exceptions, as soon as at least half the
Member States have ratified them.
On 26 July 1995, for example the Council adopted a convention establishing a European
Police Office (Europol).
Justice and Home Affairs in the European Union
17
4.1.2 Framework decisions
Framework decisions, like Community directives, are binding on the Member States in terms
of the result to be achieved while leaving the choice of form and methods to the national
authorities. Unlike directives, however, framework decisions have no direct effect (and
therefore cannot be used as grounds in judicial proceedings by individuals). They are used
to approximate the laws and regulations of Member States.
For example, on 22 December 2003 the Council adopted the Framework Decision on the fight
against the sexual exploitation of children and child pornography.
4.1.3 Decisions
Decisions are compulsory but do not have direct effect. They are consequently accompanied
by implementing measures. A decision – in the legal sense – may be taken for any purpose
other than the approximation of Member States' laws and regulations. Decisions have been
adopted, for example, in matters of judicial cooperation (creation of Eurojust) and police
cooperation (creation of the European Police College).
The Council acts unanimously when adopting framework decisions and decisions.
Implementing measures may be taken by qualified majority in certain cases.
4.1.4 Common positions
Common positions define the Union's approach to a given issue which Member States must
defend in international organisations and at international conferences.
Prior to the entry into force of the Treaty of Amsterdam, the Council adopted a Common
position on the exact definition of the term “refugee” for questions related to asylum.
18
Living in an Area of Freedom, Security and Justice
4.2 Community instruments
Community instruments are increasingly used to implement JHA policies. This tendency
reflects the growing political weight of the Commission, European Parliament and Court of
Justice of the European Communities in relation to the Council.
4.2.1 Regulations
Regulations are compulsory in all their elements and directly applicable in all the Member
States. No national measure is required to implement them. They are general in scope and
compulsory for all.
On 18 February 2003, for example, the Council adopted the Regulation establishing
the criteria and mechanisms used to determine the State with responsibility for examining
an asylum request.
4.2.2 European directives
Directives set objectives or results that Member States must achieve by means of national
legislation or other appropriate measures. Example: on 29 April 2004, the Council adopted
the Directive laying down the conditions for recognition of refugee status and defining the
rights it entails.
4.2.3 Decisions
Decisions are compulsory and can be addressed to one or more Member States in particular
or to all the Member States, to enterprises or to individuals.
4.2.4 Recommendations and opinions
These instruments are not legally binding and do not constitute legislative instruments proper.
They are frequently addressed to the Member States and state a general objective or define
a set of measures recommended by the Council.
4.2.5 Resolutions, declarations and conclusions
These instruments give the Council's point of view and are not binding. They may nevertheless
have an important political impact.
Justice and Home Affairs in the European Union
19
5. The acquis of the area of freedom, security and justice
The creation of an area of freedom, security and justice constitutes a priority for the
European Union, particularly since the Tampere European Council of 1999. This area
represents a coherent and integrated concept. Indeed, the concepts of freedom,
security and justice are best not brought into conflict with one another because they
are necessarily complementary in an entity governed by the rule of law.
Freedom, for example, means more than simply free movement in the European Union:
it also encompasses living in a safe environment, where all citizens can enjoy peace and
prosperity. Security is not limited to punishing crime: it is a means of attaining freedom.
Security and freedom are inseparable.
The role of justice is to protect freedom and to guarantee security in an area where natural
persons and legal entities can cross Member States' national borders with increasing ease.
Legal systems must be capable of responding to the difficulties that will inevitably arise
in this context.
5.1 The European area of freedom and of free movement of persons
The possibility for all European Union citizens to travel freely in the Union, and the civil and
political rights resulting from Union citizenship, are tangible signs of Europe's unity. In addition,
the creation of an area of free movement of persons implies that specific provisions are
needed for nationals of third countries, whether tourists, students, researchers, workers,
asylum seekers or illegal immigrants.
5.1.1 Schengen, an area of variable geometry
In time, the idea is to create an area without any controls on persons at the European Union's
internal borders, regardless of the individual's nationality. This of course implies mutual
trust between Member States, regular exchanges of information to combat organised and
cross-border crime, and effective controls at the Union's external borders. The Schengen
area prefigures the area without borders under construction.
What is distinctive about Schengen is that it developed under a purely intergovernmental
form, outside the framework of the founding Treaties of the European Union, up until the
time the Schengen Agreements were written into a Protocol to the Treaty of Amsterdam
(1997). This made it possible to introduce parliamentary and judicial scrutiny of provisions
adopted in the context of the Schengen area, even though the borders of the Schengen area
do not match those of the European Union.
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Living in an Area of Freedom, Security and Justice
Indeed, internal borders in the Schengen area were abolished in March 1995 between
Germany, France, Benelux, Spain and Portugal. Over the years, Italy (1990), Spain, Portugal
(1991), Greece (1992), Austria (1995), Denmark, Finland, Sweden (1996) and the 10 new
Member States (2004) have subscribed to the Schengen Agreements. Without being members
of the European Union, Iceland and Norway did the same in 1996. Switzerland has also
submitted an application to join the Schengen area. Inversely, Ireland and the United
Kingdom are members of the European Union but not of the Schengen area.
FREE MOVEMENT OF PERSONS AND FREE
MOVEMENT OF WORKERS: TWO CONCEPTS
NOT TO BE CONFUSED
The free movement of persons is not to be
confused with free movement of workers.
The former refers to the principle under
which all European Union citizens have the
right to travel freely to another European
Union country provided they have a valid
travel document (identity card or valid
passport). The concept of free movement
of workers refers to the right of all European
citizens to reside in another Union country
for the purpose of exercising a paid professional activity. This right is not yet a reality
throughout the Union. Indeed, the 15
Member States obtained the possibility of
restricting access to their labour markets
and social security systems for a transitional
period of at least two years following the
enlargement of 2004. These restrictions
apply to workers from eight new Member
States6. Sweden, Ireland and the United
Kingdom have decided not to apply these
transitional measures. Inversely, Poland
and Hungary plan to limit access to their
labour market for nationals from countries
imposing restrictions on Polish and
Hungarian nationals.
The Schengen acquis and its subsequent development had to be fully accepted by
applicants. Controls at the borders with the 10 new Member States will not be abolished
before the end of 2006, to give these countries time to join the second-generation Schengen
Information System (SIS II, see page 28), and to guarantee controls at the Union's external
borders (see page 30).
Since 1 May 2004, citizens of the EU need nothing more than their identity card or valid
passport to travel within the Union. Visas for stays of more than 90 days by nationals of
the 10 new Member States have also been abolished.
Non-EU Countries in Schengen
EU Member States in Schengen
EU Member States not in Schengen
Countries outside the EU
5 Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Czech Republic, Slovakia and Slovenia.
6 Estonia, Hungary, Latvia, Lithuania, Poland, Czech Republic, Slovakia and Slovenia.
Justice and Home Affairs in the European Union
21
Thanks to the Treaty of Maastricht, European citizens have the right
to vote in European and local elections in their country of residence.
5.1.2 Union citizenship
The creation of Union citizenship is an outstanding achievement of European integration.
The concept was originally written into the Treaty of Maastricht. With reference to citizenship
of a State, Union citizenship is characterised by rights and duties regarding participation
in political life.
Any person with the nationality of a Member State is automatically a Union citizen.
Citizenship of the Union complements national citizenship but does not replace it. It is composed
of a set of rights and duties that come on top of those deriving from citizenship of a Member
State.
Union citizenship gives each and every Union citizen:
• the right to move and reside freely in Member State territories;
• the right to vote and stand as a candidate in local and European elections in the
Member State of residence under the same conditions as nationals of that State;
• the right to diplomatic and consular protection by the authorities of another Member
State if one's own country is not represented, under the same conditions as nationals of
the Member State concerned;
• the right to petition the European Parliament and the right to lodge complaints with
the European Ombudsman in cases of maladministration by Community institutions or
bodies, with the exception of judicial authorities.
With the entry into force of the Treaty of Amsterdam, Union citizenship also means:
• the right to contact the European institutions in any of the official languages and
to receive a response in the same language;
• the right to consult documents of the European Parliament, Council and Commission
under certain conditions.
European citizenship aims in essence to bring citizens closer to Europe by promoting
the development of a European political identity.
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Living in an Area of Freedom, Security and Justice
5.1.3 The Union, a rampart of democracy and freedoms in the Member States
The common provisions of the Treaty of Amsterdam state that the Union is founded on the
principles of freedom, democracy, respect for human rights and fundamental freedoms,
and the rule of law. All the Member States adhere to these principles.
THE CHARTER OF FUNDAMENTAL RIGHTS
Any person who resides in the European
Union enjoys the rights laid down in the
Charter of Fundamental Rights. While this
document contains no new rights per se,
it is innovative because it is the first document
presenting a clear, concise and complete
catalogue of fundamental rights. The content
of the Charter stresses the indivisible and
universal nature of these rights. It groups
them into six categories: dignity, freedoms,
equality, solidarity, citizens' rights and justice.
The Charter also takes account of contemporary
ethical issues, mentioning the protection of
personal data, bioethics and rights related to
environmental and consumer protection.
The Treaty of Amsterdam also provides the possibility for the European Council to determine
that a Member State is in serious and persistent breach of these principles, using a specific
procedure7. Where such determination has been made, the Council may decide by qualified
majority to suspend certain rights conferred by the Treaty on the State in question,
in particular voting rights in Council. This provision is an important safety net to prevent any
drift into excessive authoritarianism.
5.1.4 The fight against discrimination
By establishing the right of access to administrative documents and the right to good administration, the Charter responds to a demand
for transparency and impartiality in the working of the public powers. The Charter also
reiterates certain principles aiming to ban
discrimination based on sex, race or colour.
It introduces positive measures to safeguard
cultural, religious and language diversity and
to protect the most vulnerable categories of
the population.
The fight against all forms of discrimination has been a constituent element of European integration. Combating discrimination based on nationality is written into the Treaty establishing
the European Community. The Treaty of Amsterdam built on this principle by giving the
European Union the power to legislate to combat discrimination based on sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation. Specific measures have also
been taken in matters of gender equality and combating racism and xenophobia. In 2000,
the Council adopted the Directive implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin, and the Directive creating a general framework
for equal treatment in employment.
Chapter IV on solidarity reasserts the social
rights applicable individually or collectively
in undertakings, among which workers' right
to information, the right of collective bargaining
and the right to strike.
The creation of an area of free movement of persons implies that the Union must establish
consistent provisions in regard to third country nationals in a number of areas, namely:
• access to Union territory (visa policy);
• residence, access to the labour market and integration of third country nationals
(immigration and integration policy);
• the reception of refugees and asylum seekers (asylum policy).
Since 1 May 2004, European visa, asylum and immigration policy is decided by qualified
majority under the Community pillar.
7 The European Council must act unanimously on a proposal from one third of the Member States or the Commission, and after obtaining
the assent of the European Parliament.
Justice and Home Affairs in the European Union
23
European visa policy aims to simplify formalities for third
country nationals who wish to travel between States in
the Schengen area.
5.1.5 The European Union common visa policy
Nationals of third countries may enter EU territory for tourism, study or employment and
cross its internal borders provided they have suitable documentation. Nationals of certain
third countries must obtain a visa to enter the Schengen area, whereas others are exempt
from this requirement. The Council Regulation of 15 March 2001 sets out the list of third
countries whose nationals must have a visa to cross Member States' external borders.
The Treaty of Amsterdam created a genuine common visa policy. A distinction is generally
made between short-term and long-term visas. The Schengen Convention introduces a uniform
visa that can be used to travel freely in all Member States that belong to the area, for a stay
of no more than three months. The common visa is issued by the visa service of the
diplomatic and consular representation of the Member State of entry or of final destination.
For stays of over three months, the person holding the visa must leave the Schengen area or
have undertaken the formalities required to obtain a long-term visa. Provisions exist to facilitate
the free movement of nationals of third countries in possession of a long-term visa within the
Schengen area.
5.1.6 The European Union asylum and immigration policy
All the European Union Member States are affected by migration flows. Currently, more than
19 million persons reside in an EU State without having its nationality, of whom 6 million
citizens are from other Member States. The Union is today faced with the pressing issue of
how to react in an area without internal borders to a high number of immigrants, while
respecting European humanitarian traditions of taking in foreigners and offering asylum to
those who are threatened and persecuted in their own country. In Tampere, the Heads of
State or Government agreed to develop a common asylum and immigration policy at
European level.
24
Living in an Area of Freedom, Security and Justice
Javier Solana,
Secretary-General of the Council
Effective management of migration flows must be based
on partnership with third countries.
• The guiding principles
The common asylum and immigration policy is based on the following principles:
•
•
•
•
partnership with the countries of origin,
a common European asylum system,
fair treatment for nationals of third countries,
more effective management of migration flows.
Implementation of the European asylum and immigration policy has sometimes come up
against the obstacle of Member States' reluctance to give up certain national prerogatives
in this field.
• Policy on immigration and integration of third country nationals
The balance of migration has become the main component of European demographic growth
over the past decade. Given the ageing of the European population, legal immigration is
expected to experience an upsurge in the coming decades. The success of legal immigration
is closely linked to an active policy on employment and integration of third country nationals,
a responsibility of the Member States. Good practices are being developed at European level.
They could serve as a basis for further initiatives in this area.
The year 2003 saw the adoption of the Directives on the status of third country nationals who
are long-term residents and on family reunification. In 2004, the Directive on the entry and
residence of students and trainees from third countries was approved. A draft directive
establishing a specific procedure for the admission of researchers from third countries was
also examined. Agreement on this text is expected to be reached shortly.
The question of the entry and residence of third country nationals for the purpose of paid
employment or self-employed economic activities has been examined several times at
Community level. The Commission has announced its intention to present a proposal for
a directive on this matter, on which the Council will have to give a decision.
Seville European Council,
6th February 2002
“It is crucial for the European Union and its
Member States that migration flows should
be managed in accordance with the law, in
cooperation with the countries of origin and
transit of such flows.”
The European Union is working to develop a common policy on the integration of legal immigrants.
It is also pursuing a tough policy on illegal immigration and the organised gangs that profit
from it (see page 29).
Javier Solana,
Secretary-General of the Council
“We must respect European values.
People who come to work in the Union
must be treated fairly. Their rights must
be recognised.”
Justice and Home Affairs in the European Union
25
Up and running since 15 January 2003, Eurodac successfully processed more than
240,000 fingerprints of asylum seekers in its first year of activity. In 7% of cases,
an individual had already submitted at least one other asylum application in
another Member State.
• European Union asylum policy
The right of asylum is formally written into the Charter of Fundamental Rights. The European
Union's asylum policy forms part of its overall policy in favour of democracy and human
rights. It is founded in particular on the 1951 Geneva Convention. The Tampere European
Council issued a clear call for the drawing up and implementation of a common European
asylum system. In time, the Union will thus have a common asylum procedure and a uniform
status, valid throughout the Union, for persons granted asylum.
In September 2000, the Council created the European Refugee Fund. The Fund supports
the Member States in their shared efforts to admit asylum seekers, refugees and displaced
persons. It offers practical assistance to those seeking information on the possibility of
returning to their country of origin, and financial support for the promotion of the social and
economic integration of refugees. The Fund can also help finance emergency measures
providing temporary protection for displaced persons.
To facilitate the identification of asylum seekers and the exchange of information between
Member States, the Council adopted in December 2000 the so-called Eurodac Regulation
creating a European data base of fingerprints of asylum seekers and of illegal immigrants
apprehended in the European Union. In the context of a common asylum system, the comparison
of fingerprints enables Member States to determine whether an asylum seeker or a foreign
national illegally present in the EU has already submitted an asylum application in another
Member State. The Eurodac system also makes it possible to check whether the asylum
seeker has already been apprehended while illegally crossing a Member State's external border.
The Council also adopted in April 2004 the Directive defining the conditions for recognition
of refugee status and establishing the rights attached to it. This proposal will be submitted
to the European Parliament. The Member States also agreed on the principle of a list of “safe
transit countries” and “safe countries of origin” to which asylum seekers may be returned
pending examination of their application.
Defending freedoms is a daily task in the European Union. Europe must apply these same
principles to all Union citizens and at the same time must treat nationals of third countries
fairly. This freedom could not be safeguarded, however, without complementary measures in
matters of security.
26
Living in an Area of Freedom, Security and Justice
In the face of organised crime that knows no borders,
Europe is planning its counterattack.
5.2 The European area of security
The internal security of the European Union is affected by organised and cross-border crime:
trafficking in human beings, illegal immigration, drug trafficking, money laundering, smuggling
of illegal products, international terrorism, etc. In a globalised world, the States cannot
tackle these evils alone. That is why a coordinated approach is needed at European and
international level.
EUROPOL COMBATS CHILD PORNOGRAPHY
NETWORKS
In a joint police operation, Europol coordinated
the dismantling of an international child
pornography network on 26 February 2004
and offered crucial logistical support to the
participating countries. Police raids were
held simultaneously in six Member States
(Belgium, Germany, Netherlands, Spain,
Sweden and the United Kingdom) and four
third countries (Australia, Canada, Norway
and Peru) against organised child pornography
networks that communicated by means of
the internet. During the operation known as
“Odysseus”, Europol provided valuable
intelligence and assisted national judicial
authorities with identifying suspects and
establishing the criminal ties that led to
arrests and the seizure of evidence.
Organised crime has increased appreciably over the past decade, coinciding with the growth
of its cross-border dimension. In some cases, the proceeds of crime directly finance
certain terrorist groups, perpetrators of deadly attacks in the European Union and in the rest
of the world.
Mass terrorism and organised crime are among the threats explicitly mentioned in the first
European Union Security Strategy adopted in December 2003.
Europe is striving to safeguard its internal security based on a comprehensive approach that
includes:
• closer police cooperation at European level,
• centralised collection of data by means of the Schengen Information System,
• a transversal policy to combat drugs,
• a global policy against trafficking in human beings and illegal immigration,
• integrated management of EU external borders,
• a strong fight against international terrorism,
• close cooperation with third countries.
5.2.1 European police cooperation and Europol
With the gradual abolition of controls at the Union's internal borders, police cooperation is
crucial at European level. It covers both administrative and operational cooperation between
police forces and concerted actions to counter organised crime and protect law and order.
The Task Force of Member State Police Chiefs is more specifically charged with coordinating
operational activities of the national police authorities.
Jürgen Storbeck, Director of Europol
“Organised criminal gangs do not recognise
borders. Organised crime represents a threat
to the structure and values of our democratic
system, which affects the security and
freedom of European citizens.”
Justice and Home Affairs in the European Union
27
The Schengen Information System facilitates the exchange of sensitive
information between police authorities.
Based in The Hague, the European Police Office (Europol) aims to help Member States
cooperate more closely and effectively to prevent and combat organised international crime,
including:
COMBATING DRUGS, A TRANSVERSAL
EUROPEAN POLICY
•
•
•
•
•
•
•
Europe got involved in the fight against
drugs at the end of the 1980s, tackling both
prevention and law enforcement. It is believed
that more than 40 million people in Europe
have already consumed cannabis and 3 to
5 million have already tried heroin at least
once. The European Union is thought to
have more than a million drug addicts.
In 1993, the Council created the European
Monitoring Centre for Drugs and Drug
Addiction. Its role is to collect, analyse and
disseminate objective, reliable and comparable
information on the phenomenon of drugs
and drug addiction. The Europol Drug Unit
is charged with providing information and
analytical assistance for investigations into
drug trafficking operations. This has led to
the arrest of a number of traffickers and
the dismantling of certain networks.
drug trafficking,
illegal immigration,
trafficking in stolen cars,
trafficking in human beings, especially child pornography,
counterfeiting of money and other payment means,
trafficking in radioactive and nuclear material,
terrorism.
Europol became operational in 1999. In essence, it is a centre of police coordination charged
with collecting, analysing and disseminating information. Its staff is composed of agents from
national law enforcement services (police, customs, immigration, etc).
5.2.2 The European Police College
In 2000, the Council decided to create a European police training institute. Its aim is to develop
a joint approach to the main problems encountered in preventing and combating crime.
The European Police College is not a European police institute as such, but a network of
national training institutes meant to improve training and the mutual knowledge of Member
State police staff.
European policy has taken the form of fiveyear plans (programmes on public health,
research, prevention of drug abuse and so
on) and legislation. This policy fits into the
framework of the European Union Drugs
Strategy (2000-2004), as approved at
the Helsinki Summit in December 1999.
European drug policy encompasses three
dimensions:
5.2.3 The Schengen Information System (SIS)
• the fight against drug trafficking,
• the fight against the production of drugs,
• the fight against drug addiction.
At the heart of the Schengen system lies an automated network enabling all police stations
and consular agents of the Schengen signatory states to obtain data on individuals or lost or
stolen goods: the Schengen Information System (SIS). The SIS aims to enhance police and
judicial cooperation related to criminal matters, visa policy, immigration and free movement
of persons.
The European Union also cooperates with
third countries working to combat drugs and
drug trafficking as well as drug addiction.
The SIS is currently operational in 13 Member States, Norway and Iceland. The system was
not designed to work with 25 Member States. This is why a second-generation Schengen
Information System (SIS II) is now in the development phase. The second-generation SIS
must be up and running before the new Member States can participate in an area of security
without internal borders.
28
Living in an Area of Freedom, Security and Justice
Organised criminal gangs reap huge profits from illegal
immigration and trafficking in human beings.
5.2.4 Combating illegal immigration and trafficking in human beings
Given the scope of illegal immigration, European immigration policy is obliged to include
a law-enforcement dimension8. All the Member States are now feeling the impact of this
phenomenon. The European Union cannot allow individuals to enter its territory illegally nor
can it tolerate organised networks that profit from trafficking in human beings for economic
or sexual exploitation.
As part of the fight against illegal immigration, the European Union must strike a balance
between respect for the dignity of immigrants whose presence is illegal, the obligation to
grant asylum to persons who are truly in danger, and measures to suppress organised crime.
Only a policy coordinated at European level is capable of meeting this challenge.
The European Union has taken measures to that end.
In 2002, the Council of Ministers adopted a comprehensive plan to combat illegal immigration
and trafficking in human beings in the European Union, along with an action programme for
the return of illegal immigrants.
Since then, the European Union has developed an integrated approach that includes several
complementary aspects:
• a common visa policy,
• the pooling and exchange of information (SIS, Eurodac, European visa identification
system),
• measures related to the crossing and management of external borders,
• penalties for “facilitators” and the employers of illegal immigrants,
• measures on carriers' liability,
• a policy on the readmission and repatriation of foreigners present in the EU illegally,
• a policy of partnership with third countries,
• a specific policy against trafficking in human beings.
Foreigners whose presence is illegal, women and children are particularly vulnerable to
sexual or economic exploitation by organised networks. This is why the Council adopted in
July 2002 a Framework Decision on combating trafficking in human beings, with the aim
of developing a joint approach and aligning the laws and regulations of Member States.
8 In addition to 680,000 legal immigrants, it is estimated that some half million people cross the European Union's borders illegally every
year, most of them with the aid of organised criminal networks.
Justice and Home Affairs in the European Union
29
Gijs De Vries,
the EU’s anti-terrorism coordinator
5.2.5 Integrated management of EU external borders
The Union has different types of external borders: on land, at sea and at airports (flights
to and from third countries). The security of external borders concerns the fight against
illegal immigration, but also crime, terrorism, crimes against women and children, arms
trafficking, and corruption and fraud, but not military defence. In preparation for the EU’s
latest enlargement, the European Union invested heavily in equipment and in training for
border guards from the 10 new Member States, and in the coordination of joint operations
aimed at guaranteeing an equal level of border control. Since 1 May 2004, some of these
countries are responsible for protecting the Union's external borders. This task has considerable
financial implications. Discussions were therefore begun to determine how this financial
burden could be shared within the Union. In November 2003, the Council decided to create
an external borders agency charged with helping Member States to implement on a harmonised
basis European legislation on the control and surveillance of external borders, and with
coordinating operational cooperation between the competent national authorities.
The agency will become operational in 2005. In time, the Union could also set up a European
corps of border guards and a European training institute for border guards.
EUROPE AND THE FIGHT AGAINST
INTERNATIONAL TERRORISM
The tragic events of 11 September 2001 in
New York gave prominence to the vulnerability
of States in the face of terrorist attacks, and
the need for closer cooperation to combat
international terrorism. In the application of
the Action Plan adopted by the extraordinary
European Council of 21 September 2001,
the Union expressed its determination to
combat terrorism.
The global struggle against terrorism was integrated into all aspects of EU external relations
and policies. Transport security was stepped
up and police and judicial cooperation intensified. Economic and financial measures were
introduced against terrorists and terrorist
groups, consigned to a list in December 2001.
In June 2002, the Council adopted a
Framework Decision on the fight against
terrorism. This text introduces the first common
definition of a terrorist group. Inciting, aiding
or abetting, and attempting to commit
a terrorist act are now punishable offences.
5.2.6 External relations in the field of JHA
Dialogue and cooperation with third countries are essential in the drive to counter terrorism.
The same is true for a great many Union policies in the fields of Justice and Home Affairs.
Indeed, it is increasingly difficult to make a distinction between internal security and
external security.
Following the attacks in Madrid on
11 March 2004, the Heads of State or
Government expressed their solidarity with
Spain on 25 March 2004, and announced that
a terrorist attack against any one Member
State would henceforth be considered as an
attack against all the Member States.
A European counter-terrorism coordinator
was also appointed. The European Council
made an undertaking to implement no later
than 30 June 2004 the measures agreed in
the Action Plan of September 2001, in particular
the European arrest warrant (see page 28),
joint investigation teams and provisions on
money laundering. Comprehensive debate
was also begun regarding the means of
tackling the roots of terrorism at international
level.
The field of JHA has systematically been incorporated into the Union's external relations,
both geographically and thematically. External relations in matters of JHA cover a wide range
of subjects: the fight against illegal immigration, organised crime, terrorism, financial crime,
drug trafficking, counterfeiting and so on.
The JHA acquis was included in the accession negotiations with the 10 new Member States,
and forms part of dialogue with the current applicants (Romania, Bulgaria, Turkey and
Croatia). A special expert group charged with follow-up has been set up in the Council.
The 10 new Member States also received pre-accession financial aid to reach EU level in this area.
With its strong civil and military presence, the European Union helped stabilise the Western
Balkans both politically and economically. The stabilisation and association process aims
primarily at restoring the rule of law in countries affected by the war in former Yugoslavia.
This region is home to large numbers of illegal immigrants and criminal organisations.
Gijs De Vries,
the EU’s anti-terrorism coordinator
“The European Union's role is to support
Member States in their fight against terrorism
as the necessary instruments lie in the hands
of the individual countries.”
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Living in an Area of Freedom, Security and Justice
The European Union is contributing to the stability of
the Balkans, particularly by means of its police presence in Bosnia
and Herzegovina.
The European Union's common strategies towards Russia, Ukraine and the Mediterranean
region also include a JHA dimension. They provide for the negotiation of readmission agreements,
exchanges of legal or operational information, and frequent meetings at political or technical
level.
In its external policy, the Union seeks to tackle the roots of immigration, including poverty,
social inequalities, armed conflict, human rights violations, political persecution and environmental damage.
With a view to facilitating the return of illegal immigrants, the Conclusions of the Tampere
European Council and others have stressed the importance of readmission agreements with
a number of third countries – particularly in view of the positive results registered by Member
States with bilateral agreements of this type. The Council therefore gave the Commission
briefs to negotiate a number of readmission agreements. Two such agreements (with Hong
Kong and Macao) have already been concluded and another two (with Sri Lanka and Albania)
are expected to be concluded shortly. Negotiations are also under way for this type of agreement with another seven countries (Morocco, Pakistan, Russia, Ukraine, Algeria, China and
Turkey.) Under the Transatlantic Dialogue, the European Union maintains regular and structured external relations in JHA with the United States and Canada, particularly on the fight
against terrorism. Following the attacks of 11 September 2001, the European Union negotiated two agreements on extradition and mutual legal assistance with the United States, which
were signed in June 2003. It also concluded mutual assistance agreements with Iceland and
Norway. Consideration is also being given to extending the European arrest warrant to these
two countries (see page 34).
On judicial cooperation, the European Union has become an important player in the leading
international organisations (United Nations, Council of Europe, Financial Action Task Force on
money laundering, etc), where it reiterates its values, particularly regarding the protection of
fundamental rights.
Justice and Home Affairs in the European Union
31
Europe has adopted measures to simplify citizens' lives
in matters of divorce and parental rights.
5.3 The European area of justice
The term “European judicial area” is based on the idea that judicial decisions must be able
to “move” freely within the Union, like persons or goods. The mutual recognition of judicial
decisions in civil and criminal matters has become the cornerstone of the developing
European area of justice. Application of this principle nonetheless implies that Member
States have a high level of confidence in each others' judicial systems.
5.3.1 Judicial cooperation in civil matters
Judicial cooperation in civil matters aims to create an area where judicial decisions with
a cross-border impact can move between Member States as freely as possible. Such movement
is based on the principle of mutual recognition of decisions handed down in the Member
States.
In this context, Community instruments lay down rules on the jurisdiction of courts. In other
words, these instruments determine the court or courts to which specific types of cases can
be referred. For example, the Brussels II Regulation establishes rules for determining which
court has jurisdiction for a divorce case when an Italian man living in Belgium wishes to
divorce a Hungarian woman who resides in Germany.
Sometimes, though this is not the general rule, Community instruments can determine
which law is applicable in a given case. The fact that the court with jurisdiction is in Brussels,
for instance, does not imply in every case that the law applicable to a case with a cross-border
impact is Belgian law. That is the case, for instance, with insolvency proceedings.
Community instruments also seek to simplify and sometimes to abolish obstacles to justice
that still exist between Member States in terms of recognition and enforcement of decisions
issued by the courts of one of the Member States. For example, the Council has adopted
a Regulation establishing that the return of a child abducted in his/her habitual residence
following a court judgement should be carried out without any type of control.
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Living in an Area of Freedom, Security and Justice
Judicial cooperation in civil matters also concerns the possibility of heightening cooperation
between the courts of different Member States. Indeed, since it is often necessary to conduct
inquiries in another Member State in the course of judicial proceedings, the transmission and
processing of such requests between the different courts must be direct and based on the
fastest means available.
The Council has also set rules for the rapid service of judicial or extrajudicial documents in
another Member State, for example the document that institutes proceedings.
A judicial network has also been created. Its aim is to improve judicial cooperation between
the Member States and to make practical information available to the public to ensure the
public are well informed in case of proceedings with a cross-border dimension.
The Council has turned its attention to improving access to justice in cross-border cases.
This means that all individuals involved in proceedings in a civil or commercial matter who
meet the requisite conditions must be able to defend their rights before the courts even if
their personal finances cannot cover legal expenses.
The following instruments have been adopted in the area of judicial cooperation:
• the Brussels I Regulation on jurisdiction, recognition and enforcement of judgements
in civil and commercial matters;
• the Brussels II Regulation on jurisdiction, recognition and enforcement of judgements
in matrimonial matters and matters of parental responsibility;
• the Regulation on insolvency proceedings;
• the Regulation on the service in the Member States of judicial and extrajudicial
documents in civil and commercial matters;
• the Regulation on cooperation between the courts of the Member States in the taking
of evidence in civil and commercial matters;
• the Decision creating a European Judicial Network;
• the Regulation aimed at improving access to justice in cross-border cases through the
establishment of minimum common rules on legal aid granted in such cases;
• the Regulation creating a European enforcement order for uncontested claims;
• the Rome Convention on the laws applicable to contractual obligations9.
9 This convention, which forms part of the Community acquis, has been adopted by the Member States.
Justice and Home Affairs in the European Union
33
The European arrest warrant is an essential tool
for combating cross-border crime.
5.3.2 Judicial cooperation in criminal matters
On judicial cooperation in criminal matters, the Tampere European Council laid down three
fundamental objectives:
• the principle of mutual recognition of judicial decisions,
• the creation of a platform of European criminal law on which a “European criminal law”
may be erected,
• the introduction of a European prosecuting authority, as a prelude to the possible
creation of a European public prosecutor's office.
5.3.3 Mutual recognition of judicial decisions in criminal matters and
the European arrest warrant
The principle of mutual recognition means that judicial decisions may be enforced throughout
the Union, with minimum procedural requirements. The Member States thus trust one
another and recognise the decisions adopted by the national authorities of the other
Member States.
The Framework Decision of 13 June 2002 on the European arrest warrant constitutes the key
instrument of mutual recognition in criminal matters. The European arrest warrant is a judicial
decision by a Member State ordering the arrest of an individual in another Member State and
his/her surrender for the purpose of either carrying out a sentence or conducting a criminal
prosecution.
The warrant replaces the current extradition system and does away with the whole political
and administrative phase of the procedure, creating a purely judicial procedure. It covers
32 of the most serious offences: terrorism, trafficking in human beings, corruption, participation in a criminal organisation, counterfeiting currency, homicide, racism and xenophobia,
rape, trafficking in stolen goods, fraud and so on.
In contrast with what is currently widespread practice, countries will no longer have the right
to refuse to surrender their own nationals to another country. On the other hand, every State
will be entitled to demand that persons surrendered and subsequently convicted in another
country be returned to their home country to serve their sentence.
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Living in an Area of Freedom, Security and Justice
The right of defence must be protected by
certain procedural safeguards.
5.3.4 Respect for procedural safeguards
The right of defence must be protected by certain procedural safeguards. Accordingly,
on 28 April 2004, the Commission presented a proposal for a framework decision on the
rights of suspects and defendants in criminal proceedings.
The framework decision concerns the following areas:
• the right to be assisted by a lawyer, both before and during the trial,
• the right to the services of an interpreter and translator for non-native defendants,
• the protection of persons incapable of understanding or following the proceedings,
particularly minors,
• the right to consular assistance for foreign detainees,
• the obligation of issuing a standard document (“letter of rights”) explaining the
suspect's fundamental rights in a language he or she understands.
The idea is to achieve equivalence between Member States, initially through the adoption of
“common minimum standards”.
These proposals are still being debated in Council. Other instruments laying emphasis on the
right of defence will be adopted in the coming years, particularly in matters of release on bail
and the presumption of innocence.
5.3.5 The approximation of the criminal laws of the Member States
The approximation of the criminal laws of the Member States seems particularly necessary
in matters of organised crime. Indeed, it is vital to prevent serious crimes from going
unpunished solely as a result of differences between national legal systems. The process
consists of working out a common definition of crimes and aligning sanctions. The approximation
of the criminal laws of the Member States concerns more particularly: trafficking in human
beings and illegal immigration, the sexual exploitation of children and child pornography,
terrorism, financial crimes, cybercrime, damage to the environment, racism and xenophobia.
In 2002, for instance, the European Union adopted a common definition of terrorist groups
and of terrorist acts (see page 30).
Justice and Home Affairs in the European Union
35
Michael Kennedy,
President of Eurojust
5.3.6 The emergence of integrated judicial cooperation: the European Judicial
Network and Eurojust
Due to the cross-border nature of many crimes, greater coordination at European level
appears increasingly necessary. To meet this need, the Council decided in 2001 to set up
a European Judicial Network (EJN) charged with facilitating judicial cooperation between
Member States. The EJN plays the role of providing central coordination between EU lawyers
and judges working on criminal cases. It helps the Member States exchange information
quickly and effectively.
Created in 2002, Eurojust coordinates the activities of the national authorities charged with
prosecuting serious crimes, particularly drug trafficking and trafficking in human beings.
It also facilitates implementation of international judicial cooperation, and the execution of
extradition requests. Eurojust is a team of experienced lawyers, prosecutors and/or judges
from the different Member States who are experts in the judicial system of their home
country. Eurojust works closely with Europol. The European Judicial Network and Eurojust are
based in The Hague in joint headquarters. The idea of creating a European prosecutor's
office, of which Eurojust is the embryonic form, is making headway.
Michael Kennedy, President of Eurojust
“Eurojust is involved in assisting national
authorities with the collection of evidence
in different jurisdictions and organising
meetings to coordinate initiatives for
simultaneous arrests and searches in
different countries.”
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Living in an Area of Freedom, Security and Justice
6. An ongoing endeavour
The Tampere programme, assessed in June 2004, proved to be meeting its targets in large
measure. Substantial progress has been made in most areas of justice and home affairs.
6.1 Assessment and prospects of the Tampere programme
• The rights of citizens and their families to freedom of movement and establishment in
the Union have been strengthened.
• The foundations of a common immigration and asylum policy have been laid. They offer
the guarantee of fair treatment for nationals of third countries residing legally in the Union.
For asylum, they aim to ensure a minimum level of protection and procedural safeguards
in all the Member States for those truly in need of international protection.
• The integrated management of external borders is being put into practice. An agency is
now responsible for coordinating and supporting Member States' operations in this area.
• Citizens and businesses now have better access to justice, thanks in particular to the
implementation of the principle of mutual recognition in civil and commercial matters.
• Advances in criminal matters include the entry into force of the European arrest warrant
and the creation of Eurojust. The Commission has proposed procedural safeguards to
guarantee fair trials.
• The approximation of legislation in matters of cross-border crime and terrorism has
contributed to a more effective fight against organised crime. The idea now is to firm up
at a national level the instruments adopted at European level. On police cooperation,
important structures such as Europol have already been put in place.
Justice and Home Affairs in the European Union
37
6.2 Priorities for the coming years: The Hague programme
For the future, the objectives set by Tampere will have to be finalised and greater focus
placed on effective implementation of its different instruments at the Member State level.
On 5 November 2004, the Brussels European Council adopted a new five-year Action Plan which
follows on from the Tampere programme.
The three strands of “The Hague programme” are:
• asylum and immigration,
• police cooperation,
• judicial cooperation.
The main orientations of The Hague programme are as follows:
• the switchover to a qualified majority for the adoption of European legislation on the fight
against illegal immigration and control of the Union's external borders (unanimity is
maintained for legal immigration up to the entry into force of the European Constitution);
• the introduction of a common European asylum system by 2010, which includes a common
procedure for granting and withdrawing asylum status (the definition of asylum status
also has to be harmonised at a European level);
• the definition of measures enabling third-country nationals to work legally in the EU,
in relation to the needs of the European labour market;
• the establishment of a European framework aimed at guaranteeing the successful
integration of immigrants in European societies;
• the strengthening of partnerships with third countries, particularly in matters of combating
illegal immigration;
• the setting into place of a policy facilitating the deportation of illegal immigrants and their
return to their country of origin;
• the gradual setting up of an integrated system for the management of external borders;
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Living in an Area of Freedom, Security and Justice
• the use of biometric data and electronic information systems as the general rule;
• ultimately, the creation of common offices charged with issuing visas;
• more systematic exchanges of information on law enforcement matters, based on
the “availability” principle;
• greater recourse to Europol and Eurojust, particularly in combating terrorism and
organised crime;
• the establishment of a coordinated and integrated EU crisis management system;
• stepped-up judicial cooperation in criminal and civil matters;
• mutual recognition of the decisions of courts.
Justice and Home Affairs in the European Union
39
Council of the European Union
Living in an Area of Freedom, Security and Justice
2005 - 39 p - 21,0 x 29,7 cm
ISBN 92-894-3094-X
1 JANUARY 2005
ST