Select Committee on Home Affairs First Report

2  Context

The Challenges Posed by Crime and Migration

Crime across the EU

10. At present, statistics about crime within Europe are collected almost entirely by individual Member States. Because categories of crime and methods of recording crime differ between countries, it is difficult to assemble Union-wide data which can be used with any confidence.

11. One exception to this generalisation is the European Crime and Safety Survey (EU ICS), carried out in 2005 in the 15 'old' EU countries plus three of the recently acceded states (Poland, Estonia and Hungary). The results were published in 2007.[1] The survey looked at victimisation rates, and built on earlier surveys which had been conducted in four main rounds since 1987.[2] The fieldwork was undertaken by a consortium of research institutes led by Gallup Europe.

12. The survey found that levels of common crimes such as burglaries, thefts, robberies and assaults had decreased significantly over the past 10 years everywhere in the Union, with the possible exceptions of Belgium and Ireland. Its authors noted that "in line with developments observed in North America and Australia, most EU countries are now recovering from a 'crime epidemic' that has lasted for three or even four decades".[3]

13. The survey found that almost 15% of the population of the 18 EU countries had been a victim of a crime in 2004. Levels of crime were highest in Denmark, Estonia, Ireland, the Netherlands and the UK, and were lowest in Finland, Hungary, Portugal and Spain. Factors associated with high levels of crime included urbanisation and the proportion of young people in the population. Risks of being assaulted were highest in Belgium, Denmark, Ireland, the Netherlands, Sweden and the UK, and lowest in France, Hungary, Italy, Spain and Portugal. Rates of violent crime were found to be associated with the levels of consumption of alcohol per population. The survey asked respondents whether they had been requested to pay bribes to public officials over the past 12 months. On the basis of the responses, bribe-seeking appeared to be most common in Estonia, Greece, Hungary and Poland, and least common in Finland, the Netherlands, Ireland, Sweden and the UK.[4]

14. Table 1 below shows the percentage of people per country victimised once or more in 2004 by any of the ten common crimes—the overall one-year victimisation prevalence rate. This result is a simple measure for the overall risk of crime in 18 countries of the EU. Figure 1 below illustrates levels of crime across Europe, as indicated by the survey.Table 1: Prevalence victimisation rates for 10 common crimes in 2004 and results from earlier ICVS surveys

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Data source: Jan van Dijk et al., 'The Burden of Crime in the EU', p. 19 (see full details at footnote 1)Figure 1: Levels of crime across the Member States of the European Union, 2004

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Data source: Jan van Dijk et al., 'The Burden of Crime in the EU', p. 20 (see full details at footnote 1)

15. The survey contained profiles of individual countries. That for the UK stated that:

Levels of crime have been declining in the United Kingdom since 1995 but not to the extent as in some other EU countries. The UK remains a high crime country in the EU context. Levels of crime, including violent crime were lower in Scotland and Northern Ireland than in the UK as a whole. The UK shows higher than average scores on all five crime indicators as well as on the three responses to crime indicators. The UK stands out with the highest percentage of the public favouring imprisonment for burglars.[5]

16. It should be pointed out that the UK Government was severely critical of the conclusions drawn from this survey. Tony McNulty MP, Minister of State at the Home Office, argued that the study took no account of recent crime reduction measures in the UK. He stated that "The European Crime and Safety Survey echoes the results of our own British Crime Survey, which shows that crime and violent crime have fallen by over a third in the last 10 years. But the European survey is three years out of date and we have concerns about its quality and the comparisons." He also commented that the report failed to recognise that burglary had fallen by 55% since 1997 in England and Wales.[6]

17. In a domestic UK context, data from the national survey of victimisation, the British Crime Survey, is supplemented by statistics for recorded crime. In the context of the EU, however, there is no equivalent body of EU-wide data on recorded crime recorded in a standardised way. The Home Office publishes an occasional digest of international crime statistics which makes use of national data from some EU countries. However, this is of limited usefulness because it appears only at long intervals (the most recent edition dates from 2003, covering the period 1997-2001), and because, as the Home Office itself cautions, its data is "the outcome of different legal and administrative systems and may also be derived from different statistical data collection processes".[7]


18. The type of crime where concerted action at EU level is most likely to be beneficial is organised crime operating on a cross-border basis. However, as in other areas of crime within the EU, hard statistical information is lacking. In December 2006, the European Parliament's rapporteur on a proposed framework decision on the "fight against organised crime" posed the question, "How big is organised crime in Europe?", and answered it as follows:

Nobody knows. There are no statistics. Each of the 25 European Union member states collects statistics about crime in its own different way. Their statistics are incompatible with each other so there is no overall picture.[8]

19. There is widespread recognition that a major effort to acquire relevant statistics on an EU-wide basis is needed. In 2003 the European Commission organised in Dublin what was described as "the first European Congress on 'Tackling Organised Crime in Partnership'". The 'Dublin Declaration' produced by this congress called for the development of common "European crime statistics to help in the assessment of crime trends, benchmarking of policy effectiveness and to facilitate valid comparisons".[9]

20. The European Commission has now put forward proposals along these lines, stating that :

The future EU crime statistics system should collect information from law enforcement agencies and also quantitative information based on citizen and business surveys, as well as measuring crime and victimisation in specific groups to aid decision-making in different policy areas. This crime statistics system will be developed in collaboration with Member States, using, as needed, the Community Statistical Programme. Further development, testing and dissemination of a methodology for studies of economic sectors' vulnerability to organised crime are also needed. On this basis the Commission intends to produce an annual or biennial EU crime report in the future.[10]

21. Although not based on systematic data collection, the annual reports of Europol give the best available indications of trends in cross-border organised crime. With effect from 2006, Europol's annual Organised Crime Report was replaced by an Organised Crime Threat Assessment (OCTA), intended to be a more "forward-looking document [which] will help decision-makers identify strategic priority areas in the fight against serious and organised crime".[11]

22. OCTA provides a qualitative analysis of the threat to EU countries from organised crime (OC). It argues that "the main threatening aspects of OC groups are, first, the overwhelming obstacles in dismantling them because of their international dimension or influence, and second, their level of infiltration in society and economy".[12]

23. The report identifies four main categories of organised crime groups:

—  principally territorially based, indigenous OC groups, with extensive transnational activities; especially such with possibilities to shield their leadership and assets even inside the EU;

—  mainly ethnically homogeneous groups with their leadership and main assets abroad;

—  dynamic networks of perpetrators, whose organisational setup is less viable to attack from a law enforcement perspective than their communications and finances; and

—  OC groups based on strictly defined organisational principles without an ethnic component, coupled with a large international presence.[13]

24. OCTA observes that there are particular regional patterns of cross-border crime:

—  South West Europe: illegal immigration, cocaine and cannabis trafficking for further distribution in the EU

—  South East Europe: heroin trafficking, illegal immigration and trafficking in human beings, aimed at the whole of the EU;

—  North East Europe: highly taxed products aimed at the Nordic countries and beyond;

—  particular transportation hubs, such as harbours and airports in the 'Atlantic region': movement of various commodities to and from the EU, especially drugs; and

—  the UK and Ireland are "linked to the criminal hub which seems to have developed in the Netherlands, Belgium, western Germany, Luxembourg and northern France".[14]

25. With regard to types of crime, OCTA notes that "the criminal situation within the EU is constantly evolving" but that in recent years there have been no "sudden and unexpected changes". Methods used by organised crime groups to achieve their ends include violence, corruption, falsified documents, and exploitation of the opportunities provided by decreased border controls. Drug trafficking is the most frequent principal activity of such groups, followed by trafficking in human beings, primarily for sexual exploitation, and facilitation of illegal immigration (both of which require complex organisation, and are linked to crimes such as document counterfeiting). Fraud comprises a vast array of activities, including credit-card and internet fraud. Money laundering plays a pivotal role in organised crime, while counterfeiting of commodities and currency is increasing.[15]

26. In addition to OCTA, Europol also produces an annual EU Terrorism Situation and Trend Report. The 2007 report, published in March 2007, stated that 498 terrorist attacks had been carried out in the EU in 2006. The vast majority of these resulted in limited material damage and were not intended to kill. About nine-tenths of the attacks were carried out by separatist terrorists, particularly in the Basque regions and Corsica. However, the report observed that "the failed attack in Germany and the foiled London plot demonstrate that Islamist terrorists … aim at mass casualties". A total of 706 individuals suspected of terrorism offences were arrested in 15 Member States in 2006; about half of these were related to Islamist terrorism. France, Spain and the UK were the countries most severely affected by terrorism, on the basis of number of terrorist attacks and arrested suspects, as well as the average penalties handed out by the courts.[16]


27. There has been a steep increase in the number of migrants coming into the EU in recent years. Figure 2 below shows that net migration in the EU-25 increased from 590,000 persons in 1994 to 1.85 million in 2004.[17] These figures are under-estimates of the true extent of migration flows between countries, as they do not include clandestine migration (such as illegal immigrants or human trafficking).

Figure 2: Net migration into EU-25

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Data source: Eurostat Yearbook 2006-07, p. 75

28. The most important migration flows from third countries into the EU in 2004 (the most recent year for which figures are available) came from Romania,[18] Morocco, Bulgaria,[19] Turkey, Ukraine and the Russian Federation. Inflows have become more diversified, with increasing numbers of immigrants from new sources in Central and Eastern Europe, Asia (especially China) and Central and Latin America (especially Ecuador).[20]

29. As shown in Figure 3 overleaf, almost all EU states faced net inward migration in 2004, with Spain and Italy experiencing the highest levels, with 610,100 and 558,300 respectively.[21] Together these two countries account for almost two-thirds of the EU-25 total. The UK had the third highest level of net inward migration, with 202,000, followed by other western European states: France, Germany, Austria, Ireland and Portugal. The only EU states which recorded net outward migration in 2004 were the Baltic states, Poland and the Netherlands.Figure 3: Net Migration into the EU-25, 2004

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Data source: Eurostat Yearbook 2006-07, p. 77

30. The percentage of non-UK nationals living in the UK is lower than the EU average. The total number of non-nationals living in the EU in 2004 was around 25 million. The EU average percentage of non-nationals was 7.3%. The equivalent figure in the UK was 4.7%. The citizenship of the largest non-national group in the UK was Irish. Thirteen countries had a higher percentage of non-national residents than the UK, and 11 had a lower percentage. The majority of non-nationals, EU-wide, are from non-EU countries. In 2004, Luxembourg had the greatest proportion of non-nationals (38.6%), followed by Latvia (22.2%) and Estonia (20.0%). In no other Member State was the proportion of non-nationals more than 10%. In twelve Member States non-nationals amounted to less than 5% of the population.[22]


31. Illegal immigration is a major phenomenon across a range of EU countries, although for obvious reasons there is little reliable data on the numbers of illegal migrants. The term "illegal immigration" itself encompasses several different categories of person:

a)  third-country nationals who enter the territory of a Member State illegally by land, sea and air, including airport transit zones, often with the aid of forged documents, or with the help of organised criminal networks

b)  persons who enter legally with a valid visa or under a visa-free regime, but who 'overstay' or change the purpose of stay without the approval of the authorities

c)  'failed' asylum seekers who are not removed after a final negative decision.

32. The European Commission stated in 2006 that:

Estimates of illegal migration flows can only be derived from relevant indicators, such as the numbers of refused entries, of illegal immigrants apprehended at the border or in a Member State, of applications for national regularisation procedures and of removals. A further useful indicator is given by the considerable number of those who enter legally and then "overstay". From these indicators, estimates of annual inflows of illegal immigration into the EU-25 are thought to reach over six figures.[23]

33. The original Commission study from which this estimate was taken, published in 2004, added that "more precise figures cannot be considered reliable. Moreover, such estimates do not add to the understanding of the complexities of illegal migration and are open to misinterpretation. The scale of illegal migration is nevertheless considered to be significant, and the reduction of illegal migration flows is a political priority at both national and EU level."[24]

34. The Commission has commented that "devising a proper European Union asylum and immigration policy requires having reliable data on the scale of migration flows, their origins and the patterns of migration in and out of the European Union". Under the Hague Programme, an Action Plan for the collection and analysis of EU statistics in the field of migration and asylum is in process of implementation. In September 2005 the Commission proposed a Regulation on statistics on migration which would specify "the data to be collected, the timetables to be applied, the definitions and the quality standards". The data in question would include those on "prevention of illegal entry and stay (apprehensions and refusals at the border)".[25]

35. The Commission has begun to produce annual data on enforcement measures against illegal migration: refusals at the frontier, apprehensions of illegally present non-EU citizens, and returns. The statistics are collected on a monthly basis from Ministries of Interior and Justice and related national agencies. However, the Commission notes that "an ongoing concern is the poor supply of these data by some Member States that reduces the usefulness of the statistics and restricts the extent to which comparisons can be made between countries and over time; the Commission will continue to raise this issue with data suppliers".[26]

36. The International Organisation for Migration (IoM) in its 2005 World Migration Report stated that, according to the highest estimates, there were about three million irregular migrants in Europe in 1998, compared with under two million in 1991. More than half of these appeared to be living in France, Italy and Spain, these 'Latin' European countries being the preferred gateway for irregular migrants from the Maghreb, as well as from Sub-Saharan Africa and Asia.[27]

37. Frontex, the European Borders Agency, states that the EU Member States and Schengen-associated countries noted a decreasing trend of illegal entries at their external EU/Schengen borders in 2006. Based on operational experience, Frontex suggests there is significant regional variation in the nature and scale of illegal immigration into EU states:

●  Contrary to the general decreasing trend, in 2006 detections and apprehensions increased at the Spanish external borders and in Greece, mainly at the Turkish land border.

●  As in previous years, detection figures at the external Schengen land borders (mainly Austrian and German external Schengen land borders) were significantly higher than those at the EU external land borders.

●  The main nationalities detected at the eastern external land borders in 2006 were Ukrainians, Romanians, Bulgarians, Serbians, Albanians, Moldovans and Indians.[28]

●  The main border sections in regards to detection, apprehension and refusal of entry of illegal migrants are: the land border between Slovakia and Ukraine, between Slovenia and Croatia, between Greece and Albania as well as between Greece and Turkey. The Austrian external Schengen borders, the Spanish towns of Ceuta and Melilla, the Canary Islands, Sicily and the island of Lampedusa, the United Kingdom air and sea borders and the Greek-Turkish sea border are also sites of significant illegal immigration.

●  Frontex noticed an increase of illegal entries/refusals at the air borders; the airports of Paris Charles de Gaulle, London Heathrow, Frankfurt, Amsterdam, Madrid and Milan remain the focal points of illegal immigration via air. The main nationalities detected at the air borders are South and Central Americans, Chinese and Nigerians.

●  France and other Member States reported being indirectly affected by illegal immigration transiting from Africa to Spain and Italy. Due to the current legislation in place in some Member States, a significant number of migrants are released from detention after 30/40 days and then some of them continue their journey in the area of free movement of persons.

●  The top nationality of detected illegal immigrants at the southern EU maritime borders were Moroccans (circa 70% of all detections at the Italian sea borders) followed by Sub Saharan nationals (mainly to Canary Islands), Eritrean nationals and Egyptians (mainly to Italy and Malta). [29]

JHA Issues in the EU—The Institutional Landscape

The European Union institutions

38. Under European Community law (the so-called 'first pillar'—see paragraphs 41 and 44-45 below for an explanation of the pillar structure), the Council of Ministers (which meets in 'sectoral' policy formations—e.g. the Justice and Home Affairs Council, the Economic and Financial Affairs Council, etc.) is the voice of Member States, which are represented by the competent Ministers. European Community law is in principle adopted by the Council of Ministers and the European Parliament as co-legislators. In the majority of first pillar matters the Council decides by qualified majority voting, whereby each country is allocated a number of votes in accordance with its population. The European Parliament consists of directly elected representatives from each Member State (the MEPs). It is the only democratically elected EU institution, and its co-decision role means that it may ultimately veto legislation endorsed by the Council. Proposals for Community law are tabled by the European Commission. The Commission has in principle the sole right of initiative as regards tabling EC law proposals, and is the 'guardian of the Treaties', as it has the task to monitor and enforce the application and implementation of Community law. The Commission has the power to institute in this context infringement proceedings before the Court of Justice in Luxembourg, in cases where it considers that a Member State has not implemented or has not implemented properly Community law. The Court also has jurisdiction to rule on the validity and legality of Community law, as well as to give preliminary rulings on questions of interpretation of Community law sent in by national courts. Finally, an important impetus to the adoption of EC law is provided by the European Council, which consists of the heads of state or government of Member States. The European Council's main role is to adopt political guidelines as to the future direction of EC and EU law—which can then be transformed into legislation by the other institutions (the Tampere Conclusions and the Hague Programme are prime examples of European Council action in Justice and Home Affairs).


39. Systematic co-operation at a European level in the field of Justice and Home Affairs was introduced by the provisions of the Treaty on European Union (the Maastricht Treaty) of 1992.

40. The key decisions as to how JHA issues would be treated arose from the process of negotiating that treaty. Some Member States proposed that the competence of the European Community (as it then was) be extended into the areas of foreign policy, security and defence policy, asylum and immigration policy, criminal co-operation, and judicial co-operation. However, other Member States opposed this proposal on the grounds that it would be an unacceptable encroachment upon national sovereignty and that such sensitive matters were better handled inter-governmentally. The eventual compromise, which is still in force in modified form, was that the additional matters would be dealt with at European level, not by the traditional European Community method involving qualified majority voting, but by a new 'European Union method' whereby unanimous agreement of all Member States would be required.

41. The ensuing situation was summed up using an architectural metaphor. The European Union as established by the Maastricht Treaty was represented as the pediment of a temple resting on three pillars. The first pillar consisted of matters subject to the traditional 'Community method' set out in the original Treaty of Rome. The second and third pillars dealt with matters to be decided inter-governmentally: the second pillar consisting of foreign policy, security and defence issues, and the third pillar of Justice and Home Affairs.

42. The handling of JHA at EU level has subsequently been developed through the provisions of the Treaties of Amsterdam (signed in 1997, came into force 1999) and Nice (signed 2001, came into force 2003). Most important among these changes has been the transfer of policy on asylum, migration and borders, and judicial co-operation in civil matters to the first pillar, effected by the Amsterdam Treaty. As a consequence, the third pillar has been renamed Police and Judicial Co-operation in Criminal Matters (PJCC). The term Justice and Home Affairs is still used to encompass both the third pillar and the areas transferred to the first pillar.

43. As the situation currently stands,[30]

a)  illegal migration, asylum and borders (including the relevant part of the Schengen acquis) and judicial co-operation in civil matters are subject to the first-pillar, 'Community' method of decision-making (in Title IV of the EC Treaty) using qualified majority voting in the Council of Ministers, and involving co-decision with the European Parliament;

b)  Policing and judicial co-operation in criminal matters, including drugs, trafficking, terrorism, and serious and organised crime, are subject to the third-pillar, 'Union' or 'inter-governmental' method requiring unanimity of Member States in the Council of Ministers, and with the European Parliament having a consultative role only; and

c)  something of an anomaly: economic migration, though in the first pillar under Title IV, remains subject to the requirement for unanimity, with mere consultation of the European Parliament.


44. As we have seen, under the first pillar legislation is decided by qualified majority voting (QMV). Each Member State has a fixed number of votes. The number allocated to each country is roughly determined by its population, but progressively weighted in favour of smaller countries. To pass a vote by QMV the proposal must be supported by about 74% of the votes, it must be backed by a majority of Member States, and the countries supporting the proposal must represent at least 62% of the total EU population. The European Parliament has a co-decision role, meaning that it passes legislation jointly with the Council of the European Union. Both institutions must agree on an identical text before it can be adopted. The European Court of Justice (ECJ) has jurisdiction over Title IV measures, but not all national courts can send requests for preliminary rulings to Luxembourg (where the court meets)—it is only the highest courts of the land which have the power to do so. The European Commission also has formal powers to bring infringement proceedings against any Member State which fails to implement a Council Directive.

45. Under the third pillar legislation is decided by unanimity. Every Member State must agree to the proposal, and if one does not it effectively vetoes the proposal and it cannot be agreed. The European Parliament is afforded a consultative role—the Council of the European Union is obliged to consult the Parliament, but is not bound by its opinion. Member States have the power, along with the European Commission, to table proposals for legislation in the third pillar. The European Court of Justice has limited jurisdiction, and the Commission no powers to tackle non-implementation. This last means that in practice Member States can sign up to measures and then fail to transpose them into national legislation, without facing the threat of sanctions by the Court of Justice.


46. The UK has a special position regarding its participation in first-pillar JHA measures, in particular those related to migration and border controls. As noted above, the Amsterdam Treaty 'communitarised' these matters and incorporated the Schengen acquis in the EC/EU framework. However, the UK does not participate fully in Schengen—it does take part in the majority of measures on police co-operation, but not in the measures on border controls. Concerns regarding loss of sovereignty have led to the UK not abolishing its border controls with the other EU Member States, and being sceptical about the move of these matters to the 'Community method'.

47. The UK's special position was embodied in two Protocols attached to the Amsterdam Treaty. According to Protocol 4, the UK is exempted from measures adopted under Title IV of the EC Treaty, but has a right to 'opt in' to such measures. (Sometimes, rather confusingly, this is referred to as a right to 'opt out'). The UK has three months from the Commission's tabling of a proposal to notify other Member States of its intention to take part (which would in practice mean that the UK would participate in the negotiations of the measure). Even if the UK decides not to participate at this stage, it does have the option of joining in at a later stage (though in practice this means that it would have to comply with a fait accompli, and having done so it would have no further right to be exempted from the measures). Ireland has a similar right of exemption and 'opt in'.

48. The particular situation of the UK with regard to Schengen is addressed by Protocol 2. According to that Protocol, full Schengen members may implement the Schengen acquis via Community/Union law. The UK may request to be bound by parts of the Schengen acquis in which it does not participate—however, such participation must be approved unanimously by the full Schengen members. This position has generated a degree of controversy with regard to the ability of the UK to participate in subsequent 'Schengen-building' measures, such as the Regulation establishing Frontex, the European Borders Agency (for which, see paragraphs 247 to 262 below).


49. It has been argued that the split of Justice and Home Affairs between two different pillars throws up the following difficulties:

a)  lack of efficiency (the difficulty of taking decisions requiring the unanimous agreement of 27 countries);

b)  poor quality of proposals (which are arguably watered down to accommodate individual Member States' requirements, resulting in the setting of very low common standards);

c)  the democratic deficit (with the directly elected European Parliament having a very limited say in sensitive matters impacting upon fundamental rights);

d)  limited judicial protection (with limits imposed by the Treaties on the jurisdiction of the Court of Justice);

e)  the creation of a Europe 'à la carte' (with countries picking and choosing which parts of EU law they will participate in); and

f)  an artificial divide between closely interconnected subjects, such as borders and policing. It is claimed that this can cause operational difficulties, such as police and border guards who conduct joint operations but have different mandates and powers.

50. A key question for our inquiry has been whether these alleged difficulties with the current arrangements are significantly affecting the ability of the UK and the EU to tackle crime and manage migration. A subsidiary question is whether failure to tackle these difficulties is driving, and will drive, some EU Member States to make their own arrangements for co-operation outside the formal structures of the Union. These questions will be addressed more fully under section 4 of this report.

51. Whilst there are undoubtedly difficulties with the current pillar arrangements, there are also strong arguments for retaining a high degree of national control over Justice and Home Affairs. JHA issues are very closely tied up with national sovereignty, and each state's ability to determine its own laws and manage its justice system. Quite different justice systems have grown organically out of national cultures and their specific conditions. Perhaps the most obvious example is the contrast between the common-law and adversarial system in England, Wales and Ireland compared to the constitutional and inquisitorial systems in most of Continental Europe.

52. This issue of national sovereignty continues to be at the heart of discussions about moving the entirety of Justice and Home Affairs from the third pillar to the first, which would be likely to involve relinquishing some national control over these sensitive areas. However, advocates of such a transfer would argue that the cross-border challenges facing Europe are increasing and the response to these challenges must be reappraised on a regular basis.


53. The Constitutional Treaty was signed by all the Member States in 2004, and was due to enter into force on 1 November 2006. The Treaty would have replaced the existing overlapping treaty arrangements governing the EU, with the aim of streamlining decision-making. It would also have included in its second part the EU Charter of Fundamental Rights. Ratification of the Treaty was halted by 'no' verdicts in referenda in France and the Netherlands in 2005. As at May 2007, 16 out of 27 Member States had ratified the Treaty, and a further two had completed parliamentary procedures necessary for ratification.

54. The Treaty proposed a number of significant changes to Justice and Home Affairs. Most importantly, it would have abolished the pillar structure and granted the European Union legal personality (currently the European Community under the first pillar has legal personality, but not the Union under the second and third pillars). The main changes resulting from abolition of the pillar structure under the Constitutional Treaty relating to Justice and Home Affairs would have been:

a)  Direct effect of EU legislation. Under the principle of direct effect of Community law, individuals can evoke rights conferred on them by Community law directly in national courts if certain conditions are met. Currently this happens under the first pillar, but not under the third pillar. Under the latter the absence of direct effect means that individuals affected by Framework Decisions which have not been properly implemented (or not implemented at all) by Member States cannot seek redress in the national courts of their Member State. With abolition of the pillars, individuals could invoke direct effect of third pillar Framework Decisions in national laws.

b)  Compliance with EU law. Under the third pillar the Commission does not have the power to bring infringement proceedings against Member States which have signed up to Framework Decisions but have failed to implement them. Abolishing the pillar structure would give the Commission power to bring infringement proceedings in the European Court of Justice, as is currently the case under the first pillar.

c)  Role of the European Court of Justice. The Court would gain (with few exceptions) full jurisdiction over third pillar matters. National courts would be able to send requests for a preliminary reference to Luxembourg, without any restrictions by Member States.

d)  Decision-making. Under the Treaty decision-making would be primarily by the 'Community method' currently governing only the first pillar. This would include qualified majority voting, and co-decision between the Council and the European Parliament. For legislation relating to criminal law and procedure the move to QMV would be offset by an 'emergency brake' provision: if a Member State considered that a proposal for EU law in this context would affect fundamental principles of its criminal justice system, it could request the draft legislation to be referred to the European Council (Heads of State). Negotiations would be suspended and after discussion, the European Council could either refer the draft back to the Council (and negotiations would begin again) or request the Commission (or the Member States tabling the proposal) to submit a new draft.

e)  The right of initiative. Currently any Member States can table proposals in the third pillar. Under the Treaty, the Commission would have sole right of initiative in all areas except policing and judicial co-operation. In this area Member States would retain some right of initiative, but a quarter of Member States (7 out of 27) would be required.

The current picture

Justice and Home Affairs spans national borders

55. Terrorism, crime and migration are trans-national challenges requiring trans-national responses. Our summary of trends in cross-border crime in paragraphs 18 to 26 above indicates that, though hard statistical data is lacking, such crime is undoubtedly a major problem for Member States. Increased movement of people, goods and money, the abolition of internal borders between the majority of EU Member States, the creation of an internal market without internal frontiers and rapid developments in technology mean that co-operation between EU countries is necessary to fight terrorism and crime, manage migration and improve access to and equality of justice.


56. The first comprehensive agenda for Justice and Home Affairs at EU level was set by the Tampere Summit in 1999. The summit set the goal of constructing an 'Area of Freedom, Security and Justice' across the Union, and generated the 'Tampere Programme' for Justice and Home Affairs, a five-year agenda which came to an end in 2004.

57. Following discussions in 2004 the European Council, during the Dutch Presidency, adopted a new programme for the years 2005-10, known as the 'Hague Programme'. This set out a number of measures in the fields of asylum, migration and borders, and policing and judicial co-operation. The programme placed a particular emphasis on immigration and asylum, counter-terrorism, the sharing of police information, and making greater use of Europol, the EU police office, and Eurojust, the EU judicial co-operation body.

58. The Hague Programme and its provisions anticipated the coming into force of the Constitutional Treaty in 2006, and many of its measures were linked to the Treaty provisions. The failure of the Treaty has posed some difficulties for the Programme's implementation. In July 2006, as part of its mid-term review of the Hague Programme, the Commission responded to this situation by producing a Communication entitled 'Implementing the Hague Programme—the way forward'.[31] This summarised progress so far against the programme, and laid out key priority areas for the next few years. There is agreement amongst Member States that the implications for the Hague Programme of the failure of the Treaty mean that a reprioritisation of Justice and Home Affairs priorities for the next few years is needed. Such reprioritisation is likely to focus on a few key objectives.


59. In the last decade there has been a lively debate over the right principle on which to base JHA co-operation. Three possible approaches emerged: harmonisation, mutual recognition and practical co-operation. The relatively pragmatic Hague Programme draws heavily on both practical co-operation and mutual recognition, both of which are supported by the UK Government as the basis for future co-operation.


60. During most of the 1990s the dominant thinking with regard to European integration in criminal matters centred on the issue of harmonisation of criminal offences and sanctions. A number of offences were harmonised, including trans-national and organised forms of criminality (money laundering, organised crime, corruption, drug trafficking).

Mutual recognition

61. 'Mutual recognition' provides a possible alternative to the formal harmonisation of standards across the EU. The principle provides that the courts of one Member State will recognise and execute judgements of a court in another Member State, with the minimum of formality and on the basis of mutual trust. A number of Member States, including the UK, have welcomed the principle of mutual recognition. However, its practical application—in light of the very different criminal justice systems existing across the EU—has raised a number of concerns. For instance, in relation to a mutual recognition instrument such as the European Arrest Warrant, objections have been voiced regarding the abolition of dual criminality (that is, the requirement that a crime be recognised as such in both countries concerned) and the protection of the rights of the defendant once surrendered.

Practical co-operation

62. Although there is no formal definition of the approach, practical co-operation has become a key concept in the JHA field. It places an emphasis on working together at operational level, often through informal or bilateral arrangements, as opposed to seeking common policies or legislation across the EU.


63. The current German Presidency has made clear its intention to open up debate about the future of the European Union. It promulgated a statement, the so-called 'Berlin Declaration', reaffirming the core principles of the Union. This was signed by EU leaders on 27 March 2007. It called for institutional changes—in effect, adoption of the Constitutional Treaty either in its original or a modified form—to be in place before the European Parliament elections in mid-2009. Recent press reports have emphasised that the agenda for the forthcoming Justice and Home Affairs Council, to be held on 12-13 June 2007, is more than likely to be dominated by negotiations on institutional changes, including big questions about changes to third pillar Justice and Home Affairs procedures.[32]

64. The Hague Programme comes to an end in 2010 and discussion about its successor programme will intensify over the coming months. At the Justice and Home Affairs Council, in February 2007, ministers agreed to set up a small informal working group comprising representatives of the Commission and of Member States which will hold the presidency in the near future. This will be charged with considering ideas for the development of justice and home affairs from 2010 onwards. The working group will report to the Council in 2008. The UK Government has told us that informal discussions are already taking place at senior levels.[33]

A timely inquiry

65. The EU Justice and Home Affairs agenda is arguably at the most difficult juncture since its inception in 1999. The Hague Programme faces uncertainty thrown up by the failure of the Constitutional Treaty and a mid-term review, enlargement beyond the current 27 Member States will require a change in voting arrangements (the current Nice Treaty only provides for voting arrangements for up to 27 Member States), increasing disquiet is being expressed with the current institutional arrangements in the third pillar and a wider debate is opening up over the future of the European Union.

66. The nature of the forthcoming agenda for Justice and Home Affairs will necessarily be influenced by the outcome of the wider debate on the future of the European Union's institutional arrangements. However, the nature of some of the key challenges over the next decade is already clear. They will include:

a)  Structural challenges resulting from the current institutional arrangements. Pressures resulting from the current decision-making structures look set to continue, with frustration among some Members States about the continuing requirement (in the absence of the Constitutional Treaty) of unanimity on 'third pillar' issues. If they are not addressed in a structured way, it looks increasingly likely that those states which are keen to increase third pillar co-operation will employ methods outside the formal EU structure.

b)  Philosophical approaches to co-operation. The Tampere Summit in 1999 introduced the principle of mutual recognition as a cornerstone of police and judicial co-operation in criminal matters and an alternative to harmonisation of substantive criminal law. A number of European policy-makers have expressed the opinion that mutual recognition is reaching its limits as a fundamental principle of co-operation. Some would like to see more harmonisation between the law and policy of Member States. Others would advocate practical co-operation measures alone.

c)  Practical challenges of crime, migration and terrorism. Undoubtedly terrorists and organised criminals will continue to become ever more sophisticated, and illegal migrants continue to find new ways of crossing borders. The Union must find new ways to respond to these fluid challenges, bearing always in mind the principles of proportionality and respecting rights as well as enforcing security.

d)  Tensions between the state and the individual. A rise in the threat from terrorism and organised crime has highlighted the difficulty in ensuring adequate security provisions at the European and national levels whilst preserving fundamental rights and freedoms of individuals. The Union must aim to strike a balance which places weight on both sides of the argument.

1   Jan van Dijk et al., The Burden of Crime in the EU: Research Report: A Comparative Analysis of the European Crime and Safety Survey (EU ICS) 2005 (2007) Back

2   These were the International Crime Victimisation Surveys (ICVS). Back

3   EU ICS (2005), Highlights and Policy Implications, p 2 Back

4   The Burden of Crime in the EU, p 2 Back

5   Ibid. p 92 Back

6, 5 February 2007; The Guardian, 6 February 2007 Back

7   Gordon Barclay and Cynthia Tavares, International comparisons of criminal justice statistics 2001 (Home Office, 2003), para 2 Back

8   Bill Newton Dunn MEP, Create a European FBI? A Police Force to Fight Cross-Border International Crime, European Movement Policy Paper No. 6 (December 2006), p 4 Back

9 Back

10   Commission Communication, 2 June 2005, Developing a strategic concept on tackling organised crime (COM (2005) 232 final), para 8. We are not aware that any such report has yet been published. Back

11   Europol, EU Organised Crime Threat Assessment 2006, p 4 Back

12   Ibid., p 5 Back

13   Ibid., p 5 Back

14   Ibid., pp 6, 7-8 Back

15   Ibid., pp 8-9 Back

16   Europol, EU Terrorism Situation and Trend Report 2007 (March 2007), pp 3-4 Back

17   Source: Eurostat Yearbook 2006-07, p 73 Back

18   On 1 January 2007, Romania and Bulgaria acceded to EU membership and are thus no longer third countries. Back

19   See previous footnote Back

20   European Commission Communication, The Global Approach to Migration One Year On: Towards a Comprehensive European Migration Policy, p 2 Back

21   Eurostat Yearbook 2006-07, p 77 Back

22   Based on data in Eurostat, Statistics in Focus: Population and Social Conditions (Issue 8, 2006) p2 Back

23   European Commission, Memo/06/296, EU policy to fight illegal immigration (July 2006), para 5 Back

24   Commission Communication, Study on the links between legal and illegal migration (COM (2004) 412 final), p 11 Back

25   European Commission website: Back

26   Commission Staff Working Paper, Annual report on the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders, and the return of illegal residents (SEC (2004) 239) (October 2004), p 17 Back

27   IoM World Migration Report 2005, p 78 Back

28   See footnote 18 above Back

29   Frontex Annual Report 2006, p7 Back

30   Following the move in the Amsterdam Treaty of migration, asylum and border issues from the third to the first pillar (in Title IV of the EC Treaty), the integration of the Schengen acquis into EC/EU law and subsequent changes in Title IV decision-making. Back

31   COM (2006) 331 final Back

32   For example: Guardian leader article, 10 May 2007; Guardian article Brussels braced for change as new reformist joining the EU dream team, 7 May 2007 Back

33   Q 292 Back

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