II - Background
5. In 1997, the Treaty of Amsterdam created a new
objective for the European Community: "to provide citizens
with a high level of security in an area of freedom, security
and justice". The Treaty on the European Union (the EU Treaty)
and the Treaty establishing the European Community (the EC Treaty)
were amended to give effect to this objective. The provisions
came into effect in May 1999.
6. Title VI (Articles 29 to 42) of the EU Treaty
provides for police and judicial cooperation in criminal matters.[1]
Article 34 empowers the Council to adopt common positions, framework
decisions, other decisions and conventions. These measures may
be proposed on the initiative of any Member State or the Commission.
With one exception,[2]
the Article requires the Council to act unanimously in adopting
measures.
7. Title IV (Articles 61 to 69) of the EC Treaty
contains provisions on visas, asylum, immigration and other policies
relating to the free movement of people, including measures on
judicial cooperation in civil matters having cross-border implications.
Articles 61 to 63 require the Council, by 1 May 2004, to adopt
measures on the following: visas and residence permits; illegal
immigration and residence; determining which Member State is responsible
for considering applications for asylum; and minimum standards
"on the reception of asylum seekers", for the qualification
of third country nationals as refugees, for the procedures for
granting or withdrawing refugee status, and for temporary protection
for displaced persons who need international protection. Article
67(1) provides that, until 1 May 2004, any Member State or the
Commission may initiate a proposal for a measure under Article
63, and the Council's unanimous agreement is required for the
adoption of such measures. Article 67(2) requires the Council,
after 1 May 2004, to decide that action under all or part of
Title IV should be subject to co-decision with the European Parliament
and qualified majority voting (QMV). The Council has not so far
reached such a decision.
8. Article 69 of the EC Treaty provides that measures
adopted under Title IV are not to apply to the United Kingdom
unless it expressly opts into them.
9. In October 1999, the Tampere European Council
approved a programme of action on:
- A common asylum and migration
policy (including partnership with countries of origin; a common
European asylum system; fair treatment of third country nationals;
and management of migration flows).
- A European area of justice (including better
access to justice; mutual recognition of judicial decisions; and
greater convergence in civil law).
- A Union-wide fight against crime (including crime
prevention; increased cooperation against crime; and special
action against money laundering).
- Stronger external action, such as agreements
with third countries.
10. The Commission has provided the European Council
with regular six-monthly scoreboards on progress in implementing
the Tampere programme.
11. The draft Constitutional Treaty would change
the above arrangements by specifying co-decision and QMV as the
procedure for the adoption of legislation on border checks, asylum
and immigration; judicial cooperation in civil matters (other
than family law, for which consultation and unanimity is the required
procedure); most aspects of judicial cooperation in criminal matters,
including the harmonisation of criminal law and procedure; and
police cooperation (other than operational cooperation and measures
concerning the conditions and limitations under which one Member
State may operate in the territory of another Member State).
1 Article 42EU provides that the Council, acting unanimously
on the initiative of the Commission or a Member State and after
consulting the European Parliament, may decide that action on
police and judicial cooperation on criminal matters is to "fall
under" Title IV of the EC Treaty. So far, the provision has
not been used. Back
2
The exception is contained in Article 34(2)(c), which permits
qualified majority voting (QMV) for the adoption of decisions
which do not approximate the laws of Member States; so far, this
provision for QMV has never been used. Back
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