2. Memorandum submitted by the Centre
for European Policy Studies (CEPS)
Further European integration in the field of
police and judicial cooperation in criminal matters is at the
crossroads. While its JHA siblingasylum and immigrationwas
able to emancipate itself from the "Third Pillar", police
and judicial cooperation in criminal matters was forced to stay
under the Union's wings. Since their separation enacted by the
Amsterdam treaty these two policy areas have experienced significantly
different developments. A comparison elucidates that police and
judicial cooperation in criminal matters has done considerably
worse and currently suffers from a high degree of inconsistencies.
Inconsistencies on various levels:
(a) Traditional inconsistencies among legal
systems of member states.
(b) New European inconsistencies emanating
from the fragmented participation in Schengen structures.
(c) Institutional inconsistencies resulting
from EU pillar structures.
(d) Conceptual inconsistencies by focusing
on security and failing to pay sufficient attention and priority
to the citizens, civil liberties and fundamental rights.
It is the principle of mutual recognition that
tries to address the first inconsistency. It was conceived as
a means to avoid harmonization and to conserve the difference
of different legal systems while at the same time allowing for
a certain degree of effective European cooperation. Experience
has shown, however, that it most probably has not delivered the
expected results. A reassessment of mutual recognition is currently
taking place. Its results might lead to a more open minded approach
towards the continuously defied instrument of approximation of
The Schengen inconsistencywith two Member
States voluntarily excluded and 10 kept out against their willmust
be ended as soon as possible. The two might not be convinced to
enter, but for the 10 that are more than willing, every possible
effort should be made. Only this guarantees, eg that a genuinely
European instrument like the European Arrest warrant is not dependent
on an unaccountable international tool like Interpol to be effectively
disseminated among EU Member States.
Attempts to avoid the institutional inconsistency
have only recently failed. This is regrettable as a majority of
actors, eg Member States, Parliament and Commission has been prepared
and willing to address the undisputed lack of democratic and judicial
control within the Third Pillar.
With regard to the conceptual inconsistency,
unfortunately there appears to be no sign of change. Judicial
and practical cooperation in criminal matters is still focusing
on "security". "Security" and "freedom"
are presented as antithetical values that supposedly require a
balancing procedure. Coercive security, however, cannot be divorced
from rule of law, civil liberties and fundamental rights. Instead,
security must be understood as a flanking measure to secure freedom
within the rule of law.
These conclusions will be elaborated in the
course of this paper. It presents a comprehensive set of answers
to the main questions raised by the Select Committee on Home Affairs
of the House of Commons.
1. The current state of progress in developing
practical co-operation between member states in the JHA field,
and future options in this area.
What benefits have accrued so
far from practical co-operation between law enforcement and judicial
1. Answer: To assess the "benefits
of practical cooperation between law enforcement and judicial
authorities" within the context of European JHA policies
is not an easy task. Statistics are not necessarily available
or may not provide the whole picture. This is particularly true
for statistics dealing with the question to which extent judicial
authorities of Member States use different possibilities provided
by European law.
Apart from this technical problem, the very concept of "benefit"
may vary from different points of view: what might be beneficial
from a law enforcement's perspective might be highly detrimental
to civil liberties and fundamental freedoms.
2. Attention must further be given to the
fact that European co-operation in police and criminal matters
is conceived of different elements: legislative instruments that
aim to facilitate immediate cooperation between competent authorities
of Member States on one hand and "European" judicial
and law enforcement bodies on the other hand. A prominent example
of the first is the framework decision on the European arrest
Examples of the latter are Eurojust, Europol and others.
3. Having regard of these preliminaries,
it is possible to conclude from available figures that law enforcement
and judicial authorities in Member States make more and more use
of European instruments. There is a tangible added-value of European
cooperation and coordination that is constantly increasing. However,
in order to ensure individual procedural rights we consider it
necessary that a parallel development allowingamong othersfor
an effective and coordinated cross-border defense must finally
4. The number of cases referred to Eurojust
by national authorities has risen from 202 in the year 2002 to
588 in 2005. The UK is among the top five users of Eurojust with
39 requests in 2005 after Germany (99), Italy (51) and Sweden
(40). In 2005 Eurojust organised 73 co-ordination meetings to
discuss with officials from national authorities the best way
to proceed in specific cases. In 2004 52 such meetings were held.
Taken from a non-representative Eurojust survey among national
authorities the quality and swiftness of Eurojust's assistance
appeared to be highly satisfactory.
These figures, however, merely reflect the law enforcement's perspective.
Seen from a more coherent angle it is a considerable setback that
there is hitherto no legal framework envisaged that would facilitate
effective cross-border cooperation and coordination for defense
lawyers. Existing structures are based on private initiatives
that are not institutionalized and do not guarantee that every
suspect who faces international investigations is able to enjoy
the benefits of international defense teams. To address this shortcoming
the Council of Bars and Law Societies of Europe (CCBE) has proposed
to establish a European Criminal Law Ombudsman whose task not
only would be to safeguard the rights of defense but also to provide
help assembling international defense teams.
While this proposal is still under discussion and may not be the
it illustrates, however, that there is need to create a European
legal framework and European structures that allow for equality
of arms in criminal procedures.
5. It is in particular with Eurojust's work
that the possible problem of "forum-shopping" must be
addressed. What does this indicate? One of Eurojust's tasks is
to suggest to national authorities which jurisdiction is "in
a better position" to undertake an investigation or to prosecute
In which sense "better position" is to be understood,
remains, however, open to interpretation. It might include that
a jurisdiction is "better" where legal obstacles like
admissibility of evidence or other procedural rights are lower.
Eurojust itself has addressed this issue quite early and has drawn
up "Guidelines for deciding which prosecution should prosecute".
These guidelines establish a presumption that prosecution should
take place "where the majority of the criminality occurred
or where the majority of the loss was sustained". It is also
explicitly foreseen that "prosecutors must not decide to
prosecute in one jurisdiction rather than another simply to avoid
complying with the legal obligations that apply in one jurisdiction
but not in another". Based on these guidelines, the fear
of "forum-shopping" seems to be banned. However, they
are no more than internal suggestions without binding legal force.
The Eurojust Council decision does not explicitly forbid the practice
of "forum-shopping". It cannot be excluded therefore
that under specific circumstances, eg political pressure to achieve
prestigious results, or in the course of day-to-day work, distinctions
between "law-enforcement friendly" and "defence-friendly"
jurisdictions might be drawn and national authorities accordingly
6. With regard to legislative measures it
is towards the application of the European arrest warrant that
some figures are available. Numbers for 2005 comprising 17 Member
States were discussed in this year's June JHA Council: from 1,526
people arrested, 1,295 were effectively surrendered within 30
to 40 days.
For the time up to September 2004comprising 20 Member States2,603
warrants had been issued with 653 persons arrested and 104 surrendered.
Concerning the effectiveness of EAWs the Commission's report indicates
that the average time to execute a warrant had fallen from more
than nine months to 43 days. It is important to note furthermore
that in those cases where the person consents to his surrender
the average time is only 13 days.
Consented surrender is frequent according to the Commission's
report. This illustrates in our view that benefits from practical
police and judicial cooperation are highest when a consented solution
together with the citizen under investigation is sought. When
measures are coerced, however, swiftness and effectiveness suffers
What are the lessons of practical
co-operation for European policy and legislation, and how effective
is Eurojust in spreading best practice?
7. Answer: In particular with
regard to new European institutions and bodies one quite obvious
lesson is that it is often not enough to simply establish such
bodies. In addition Member States' authorities must be able and
willing to cooperate and provide necessary information. The reluctance
of national authorities to pass information, eg to Europol is
a continuing problem that has often been mentioned and criticized.
8. National officials must furthermore be
aware of the possibilities, instruments and bodies that exist
to facilitate European co-operation. However, to promote such
knowledge cannot be the exclusive responsibility of these bodies
or EU themselves. It is first and foremost Member States' duty
to train and inform their officials. In spite of this, there is
done a lot at EU level to disseminate relevant knowledge, eg by
CEPOL, the European Police College in Bramshill, UK. In 2005 CEPOL
organized 56 courses training a total number of 1,087 officials.
Eurojust as well is active in training and knowledge dissemination.
In 2005 it organized seven strategic seminars on different issues
like terrorism, EAW implementation, Euro counterfeiting, drug
trafficking, trafficking in human beings and money laundering.
9. One lesson that could be learned from
the initial difficulties of CEPOL is that setting up European
bodies without providing them neither with legal personality nor
a budgetas the first Council decision of 22 December 2000
didmakes it rather unlikely that this body will be able
to deliver the envisaged effects.
10. Apart from these more practical lessons,
there are two observations that aim more directly at legislators.
Further developments of EU Justice and Home Affairs will be influenced
by the answers found to these observations:
11(a) European police and judicial co-operation
in criminal matters under the existing legal framework is dependent
on Member States' willingness to implement the necessary measures
on national level. It can be observed, however, that Member States'
implementing activities are generally rather slow and reluctant
in spite earlier agreements on binding deadlines or invigorated
declarations on the urge and necessity of certain measures. This
observation can be made in relation to nearly every single Third
Pillar action taken by the Council in the last years.
A very prominent and sad but by far not the only example is the
ratification of three protocols amending the 1995 Europol Convention.
These protocols date back to 2000, 2002 and 2003. Only very recently
all Member States succeeded in ratifying these provisions making
it possible, that they enter into force in 2007.
12(b) The most important lesson, however,
is the need to develop a coherent understanding of the issues
at stake. It is not without deeper meaning that the official label
of JHA policies on European level, the "Area of freedom,
security and justice" names "freedom" in the first
place and flanks "security" with both "freedom"
and "justice". Security cannot be achieved without securing
fundamental rights and guaranteeing true judicial control and
rule of law. The constitutional difficulties that became visible
in many Member States in connection with the European arrest warrant
made this very clear. Further progress must therefore strictly
adhere to the principles of democratic accountability, judicial
control and unconditional protection of civil liberties and fundamental
rights. As could be seen from the German ruling on the EAW,
national constitutional courts are observing European JHA developments
very closely and with a certain amount of scepticism. EU governments
are therefore well advised to resist the temptation of misusing
current intransparent and uncontrolled Third pillar Council structures
to realise security focused policies thatdue to national
constitutional limitationsthey wouldn't be able to realise
What should be the role of Europol,
Interpol and Eurojust in facilitating practical co-operation?
13. Answer: Answering this
question makes it necessary to recall that Europol, Interpol and
Eurojust are set up by different legal acts and consequently have
very distinct features. Interpol, the International Criminal Police
Organization, is an international organization founded in 1923
with currently 186 member countries. Europol was established in
1995 by an intergovernmental convention
and up till now stands outside genuine EU structures. Only Eurojust
isfrom its legal naturea distinct "EU child",
established by a Council decision in 2002.
But even Eurojust differs from other EU bodies and agencies as
powers and competences of Eurojust staff are unbalanced: national
members have different judicial powers according to their Member
States' national laws; their salary is also paid by Member States.
14. Despite their differing legal construction
Interpol and Europol have concluded agreements among each other
with the aim of increasing effectiveness and avoiding duplication
of work. This entails exchange of information and the exchange
of liaison officers. As far as could be seen, however, there are
no official links between Eurojust and Interpol. This seems us
to be a major disadvantage taking into account which considerable
practical role Interpol plays in realizing European judicial cooperation:
Interpol currently bridges the gap for fast and effective transmission
of EAWs via its system.
This is because not all Member States participate in the Schengen
Information System. Two of the Member States decided not to participate
but ten and from 2007 on twelve Member States are kept deliberately
out of the system, despite their wishes to join. That Interpolas
a consequencehas in effect become an intrinsic part of
the European system of judicial cooperation is unacceptable. To
remedy this we consider it necessary that new Member States must
be accepted to Schengen as soon as possible.
15. Various links including a cooperation
agreement exist between Eurojust and Europol. Their roles seem
to be clearly defined and distinct. While Europol's task is to
improve effectiveness and cooperation of national authorities
in "preventing and combating" certain criminal acts
where two or more Member States are concerned, Eurojust shall
stimulate and improve coordination and cooperation "in the
context of investigations and prosecutions" of criminal behaviour
where two or more Member States are concerned. The role of Europol
isso farcharacterized by information driven police
work, while Eurojust follows a more practical approach, assisting
Member States' authorities in overcoming obstacles in cross border
investigations and prosecutions, that arise from different legal
systems and language. In day-to-day work, however, the lines between
the bodies' fields of competences seem to be somewhat blurred.
It cannot be excluded that rivalries exist or arise between Europol
and Eurojust This might lead to a situation where information
is held back in order to secure visible successes for one of the
two actors. Published figures indicate that there is in fact much
more room for co-operation. Only once in the whole year of 2005
did Europol send a request to Eurojust. In the other directionfrom
Eurojust to Europolthere have been 64 requests in the same
year while only 52 have been answered by Europol.
16. Concerning the future role of Interpol,
Europol and Eurojust, we are in favour of a system that would
reflect the distinction between judicial tasks and police tasks
in Member States' legal system. Eurojust should therefore be empowered
to control police activities performed by Europol, including practical
cooperation between Europol and Interpol.
2. The current state of progress in mutual
recognition, including the development of minimum standards, across
the EU, and whether further steps in this direction are desirable.
In which areas is mutual recognition
currently employed (for example recognition of judicial judgements
in other member states)?
17. Answer: The principle of
mutual recognition traces back to the Cardiff European Council
on 15 and 16 June 1998. The Tampere European Council concluded
that mutual recognition should become the cornerstone of judicial
cooperation in both civil and criminal matters within the Union.
A program of measures to implement this principle was drawn up
by the Commission and agreed upon by the JHA Council held in Marseille
on 28 and 29 July 2000.
In criminal matters the principle of mutual recognition is the
foundation of enacted EU legislation in the following areas: arrest
orders freezing property or evidence,
mutual recognition of financial penalties,
exchange of information extracted from criminal records.
18. In October 2006 the JHA Council finally
adopted a framework decision on the application of the principle
of mutual recognition to confiscation orders.
It is furthermore foreseen that an agreement on the framework
decision on mutual recognition of judgments in criminal matters
will be reached in December 2006.
19. The framework decision on the European
is still in discussion in the Council working groups. Other areas
of mutual recognition that are already addressed ormost
likelywill be comprise: a European supervision order in
recognition of earlier convictions in the course of new criminal
recognitions of disqualifications arising from criminal convictions,
the ne bis in idem principle.
In a territorial scope, the principle of mutual recognition will
be "exported" to the Kingdom of Norway and Iceland:
an agreement on the surrender procedure between EU Member States
and these countries is currently finalized in the Council working
How has the principle, including
minimum standards and protocols, worked in these areas? Is it
an effective approach, including in terms of cost?
20. Answer: In order to avoid repetitions
we refer to the statistical data given in § 6. The figures
on the EAW particularly the decrease of lengthy procedures show
that the principle of mutual recognition can contribute to speed-up
proceduresespecially when there is consent of the individualand
can hereby reduce costs. However, there are a number of open questions
and limitations, that we address in §§ 23-26.
21. Additionally we like to mention that
cost efficiency is a particular aspect of the Commission's proposals
on the European supervision order. The aim of this proposal is
to avoid pre-trial detention of suspects that are arrested in
a Member State that is not their Member State of residence. In
this case a detention order is often issued because authorities
see a flight risk. The European supervision order aims at avoiding
such unnecessary pre-trial detentions by allowing the suspect
to return to his Member State of residence and oblige authorities
there to ensure that the suspect will appear and stay possible
court proceedings and/or further investigations. With an average
pre-trial detention time of 42.5 days in the UK and costs of 3,039
and person, this proposal could help to reduce expenditures and
save prison space.
22. A coherent and European wide application
of the principle of ne bis in idem, furthermore, is another
means that does not only serve the individual's right to be only
sentenced once for the same wrongdoing but also helps to reduce
costs: duplicate, cost intensive proceedings in different Member
States can be avoided.
What are the limitations of mutual
recognition as a cornerstone of co-operation, for example in cases
such as the European Arrest Warrant where there are controversies
over dual criminality? What have been the successes, and how might
these be built on?
23. Answer: The principle of
mutual recognition has always been a compromise solution to enhance
cooperation in criminal justice matters without the need to harmonise
different legal systems. As a "working compromise" it
might be characterized as a truly European product. However, as
it is often the case: solutions that might seem easy, turn out
to be more problematic. After several years of trying to make
the principle of mutual recognition work, it seems that itwhile
delivering some resultseventually has caused more difficulties
than benefits. This assessment is illustrated by a recent Presidency
proposal, named: "Follow-up to the mutual recognition programme:
difficulties in negotiating legislative instruments on the mutual
recognition of judicial decisions in criminal matters and possible
24. Major limitations of the principle are
less certain technical intricacies that might be solved. Instead
the most pressing constraint towards the principle of mutual recognition
is the context in which it stands and is applied. Apart from our
concerns formulated in § 12, we consider itparticularly
in the field of criminal substantive and procedural lawindispensable
that the development of a common judicial area built on the principle
of mutual recognition is accompanied by measures that guarantee
effective procedural rights of a suspect. The way Council is and
has been dealing with the respective Commission's proposal from
compromises the entire system with no signals in sight that there
will soon be an agreement. This despite the fact that in 2001
it was agreed upon that "mechanisms for safeguarding the
rights of third parties, victims and suspects" are an important
parameter which determines the principles' effectiveness.
25. Furthermorelike in the field
of practical police co-operationeffective democratic and
judicial control as well as accountable and transparent legislative
procedures are necessary preconditions to develop and maintain
mutual trust. Without mutual trust, the principle of mutual recognition
is doomed as the latter builds on the first. It is furthermore
not enough that mutual trust is gained between judicial authorities
and their officials. In order to realise the common area of freedom,
security and justice trust into each others legal systems that
guarantee civil liberties, fundamental freedoms and rule of law
must exist between the citizens of Europe.
26. The inherent link between mutual recognition,
mutual trust and the shared commitment to the principles of freedom,
democracy and the respect for human rights, fundamental freedoms
and the rule of law has been seen and established by the Council
and the Commission in an early phase.
It seems, however, that this coherent approach and understanding
has progressively been abandoned in the last five years. It is
these developments that, in our view, constitute major limitations
of mutual recognition.
3. The current state of progress in and appetite
for harmonising criminal justice systems across the EU, and whether
further steps in this direction are desirable.
How do proposals for harmonisation
of criminal law across member states substantially differ from
27. Answer: As far as can be
seen, there are no European efforts to harmonise entire "criminal
justice systems" as the heading of this set of questions
suggests. There are however certain European acts that approximate
some rules on criminal matters as it is foreseen in articles 29
and 31(e) TEU. Approximation of criminal matters aims to ensure
that certain procedural measures and/or certain substantive rules
exist in all Member States in order to give effective answers
to cross-border crime within the common judicial area by trying
to close existing gaps. It differs from mutual recognition in
so far as it aims at establishing a common set of rules. Mutual
recognition, however, tries to avoid exactly this, by recognizing
and accepting existing disparities among Member States' criminal
28. From a theoretical point of view, approximation
of laws seems to be more efficient and effective compared to mutual
recognition as disparities among legal systems might provide certain
obstacles to the practical application of mutual recognition.
However, approximation of laws has often proven to be difficult.
It has involved lengthy discussions and procedures. These discussions
have in some cases eventually lead to the setting of minimum standards,
which open possibilities of downgrading existing standards or
maintaining existing disparities.
29. In spite these difficulties, approximation
of laws has been the path that was chosen in establishing a common
asylum and immigration policy. Although certain setbacks in this
field of policy are undisputable, experience has shown that Member
States are eventually able to achieve results. While some approaches
to downgrade standards have been undertaken, we consider that
this should not be the reason to abandon the instrument of approximation
of laws as such. Several aspects have to be kept in mind: 1) Approximation
of lawsin contrast to mutual recognitionprovides
a clear and certain set of rules. 2) It prevents Member Stateseven
in case of minimum standardsto go below these minimum standards.
Such an effect could be observed lately in connection with the
directive on family reunification and certain plans of the Netherlands
to further restrict national laws on family reunification. 3)
As all Member States are members of the Council of Europe and
therefore bound by the Convention for the Protection of Human
Rights and Fundamental Freedoms, any European legislation is eventually
subject to the rulings of the European Court of Human Rights in
30. Concerning approximation of criminal
law a considerable amount of turmoil has been produced recently
by the European Court of Justice's (ECJ) involvement. In case
C-176/03 from 13 September 2005 the ECJ has annulled a Council
framework decision approximating environmental criminal law. The
ECJ was of the view that article 175 TEC provides the Community
and not the Union with the competence to adopt measures relating
to criminal law of Member States. The framework decision approximating
environmental criminal law therefore encroached on this Community
competence. A second case is currently pending with the Commission
seeking to get annulled another environmental crime framework
After the first ECJ judgment the Commission has released a communication
announcing that it revises a large number of existing approximation
acts and that considers that a solution must be found in order
to guarantee legal certainty.
Before the ECJ has not delivered its judgment it is unlikely that
the Council will press forward with further approximation measures.
Until now approximation of laws has been enacted in the following
areas: fraud and counterfeiting of non-cash means of payment,
confiscation of crime-related proceeds, instrumentalities and
counterfeiting in connection with the introduction of the euro,
unauthorised entry, transit and residence,
attacks on information systems,
A legislative proposal has been tabled dealing with ensuring the
enforcement of intellectual property rights.
Would particular areas benefit
from harmonisation on issues such as migration, serious crime
cases and terrorism, rather than practical co-operation or mutual
31. Answer: As preliminaries
we would like to recall that "migration" is not a crime
and that we are astounded about grouping migration in a row with
"serious crime cases" and "terrorism". We
furthermore like to recall that the term "benefit" does
depend on the spectator's view, see § 1.
32. We think that a common understanding
and common definitions of certain crimes would benefit the whole
system. Legal certainty and clarity would be gained. The existing
legal instruments on mutual recognition mainly imply a list of
32 crime descriptions to which certain legal consequences are
attached, eg no double criminality check. The lack of common definitions
of these crimes, eg "computer related crime" or "racism
and xenophobia" is seen by many as a considerable flaw. We
concur with this assessment. However, defining criminal acts,
implies defining which human behaviour is deemed punishable. This,
however, is not for governments to decide behind closed Council
doors, void from parliamentary scrutiny and control. Under the
existing Third Pillar rules and procedures we therefore consider
it not beneficial to approximate substantive criminal law in a
4. The process of decision-making on JHA
issues at EU level: in particular, the extent to which current
difficulties in reaching agreement derive from "third pillar"
voting procedure and might be remedied by implementation of the
passerelle clauses in previous treaties.
What implications might use of
the passerelle have for the UK's legal and judicial systems? What
alternative action might improve decision-making? How can transparency
and accountability at European level best be extended?
33. Answer: With the Constitutional
Treaty being unlikely to come into force within foreseeable time
and acknowledging that European police and penal co-operation
has positive effects for the safety of European citizens we seeunder
the existing legal possibilities provided for by TEU and TECno
alternative to reach acceptable levels of transparency, accountability
as well as democratic and judicial control other than to make
use of article 42 TEU. This view is shared not only by the Commission,
the European Parliament and nearly all NGO's working in the field,
but also by a considerable number of Member States, not least
the current Finnish presidency.
We consider it therefore regrettable that attempts to make use
of article 42 TEU were recently blocked, namely by Germany.
However, we like to highlight that our main concern in this context
is not about efficiency in terms of speed, but about true accountability,
legitimacy and control.
5. How significant is the recent trend towards
internal agreements between groups of member states outside the
framework of the EU, for instance the Schengen countries, or the
Prüm convention? To what extent is this due to unanimity
or difficulties in decision making? What are the implications
for the UK and for EU fragmentation?
34. Answer: The trend towards
internal agreements between groups of Member States in the field
of JHA policies is significant in so far as it avoids full force
of the European Union/Community cooperation. As the JHA unit of
CEPS has stated earlier in relation to the Prüm treaty but
applicable to other comparable activities, like the G6 meetings
in Heilgendamm and Stratford-upon-Avon: "The Treaty of Prüm
undermines the EU's ability to become an efficient policy-making
body in the field of security. To start with, by setting up exclusive
and competitive measures that seek to address threats that affect
the EU as a whole, it blurs the coherence of EU action in these
fields. Second, by developing new mechanisms of security that
operate above and below the EU level, it dismantles trust among
Member States. Finally, by establishing a framework whose rules
are not subject to Parliamentary oversight, the Convention impacts
on the EU principle of transparency. These three principlestrust,
coherency and transparencyare yardsticks agains which Pru[lcodot]m
should be assessed".
35. Difficulties in decision making or unanimity
do not appear to us as being the underlying motivation of these
or similar initiatives. If this were the case, it would not make
any sense why Prüm signatory states have been divided over
the implementation of the passarelle in September 2006. While
France, Spain and Luxembourg apparently backed the passarelle
proposal, Germanya leading actor in nearly all small JHA
circlesfiercely opposed it.
It should be noted that all informal JHA activities tend to emphasise
that they are in line with EU JHA activities and that they aim
to strengthen it, however, one gets the impression that the true
objective is to pre-design JHA co-operation in a smaller extent
with the aim of importing it later into the European structure.
In the light of EU Treaty provisions that allow for enhanced cooperation
even in the JHA field (articles 40, 43-45 TEU) one might question
not only the political wisdom of separate JHA circles but their
legality as well.
6. What are the current developments in the
area of common border controls and visa arrangements? Will the
proposed changes to the short-stay visa arrangements in relation
to the eastern neighbours of the EU open up new channels for illegal
migration further westward in the EU? What are the implications
of enlargement for JHA issues, including the impact of labour
migration and confidence in new member states' justice systems?
36. Answer: Recent years have
seen efforts to Europeanize and to strengthen EU external borders
management and visa rules as well as efforts to ease some effects
of EU enlargement for neighbouring countries. Common rules for
the movement of persons across borders, the Schengen Borders Code
have been enacted and an agency for the management of operational
cooperation at external borders, Frontex, established.
Standards for security features and biometrics in passports and
travel documents have been agreed upon
as well as a tool to provide exchange of Visa data, the Visa Information
Proposals have been tabled to establish a Community Code on Visas
and a mechanism for the creation of so called "Rapid Border
Visible actions are currently performed on Europe's southern maritime
borders while their effectiveness and legality, especially with
regard to "interceptions at sea" aiming at preventing
migrants to reach Europe's shores allow for some questions.
37. Concerning envisaged visa facilitations
for citizens from Russia and Ukraine, we do not see any imminent
threat that these measures will "open up new channels for
illegal migration". Instead we conceive such measures as
being part of very sensible developments that aim at strengthening
economic, humanitarian, cultural and scientific ties with neighboring
countries that will positively influence trade, stability and
38. Regarding EU enlargement and JHA issues
it is possible to observe a common more skeptical and less enthusiastic
trend. While by 2006 nearly all Member States have opened up their
labour markets for EU citizens from the ten new Member States,
only some Member States will allow for unrestricted inner-EU-migration
with regard to Bulgaria and Romania. We like to recall, however,
that free movement within the EU is a fundamental right and essential
part of the whole European project. Therefore: limitations to
this fundamental right in the form of transitional safeguarding
measures are only allowed in exceptional circumstances. We welcome
that the EU 15 had opened up towards EU 10 much faster than initially
expected and hope that a similar development will be possible
towards EU citizens from Bulgaria and Romania.
39. Safeguarding clauses, however, are not
only foreseen for the movement of people but may also apply in
relation to mutual recognition and other principles of JHA policies.
In its monitoring report on the state of preparedness for EU membership
of Bulgaria and Romania the Commission has formulated some criticism
with regard to their respective justice systems.
Safeguarding JHA measures from the date of accession, however,
have not been proposed by the Commission. Instead a reporting
system was instigated with a first report due by 31 March 2007.
In some Member States, however, eg in Germany, there were parliamentary
discussions dealing with the question if the Government should
be officially asked to implement and notify JHA safeguarding measures
from the date of accession.
Such developments highlight again that mutual trust cannot be
imposed. It must grow, instead, relying on tangible facts and
shared fundamental principles and values. It is furthermore a
strong argument for agreeing on common binding principles in JHA
issues within the EU instead of trying to cover existing disparities
by relying on the principle of mutual recognition.
15 November 2006
4 A recent Commission communication deals with the
lack of data and seeks to develop a coherent framwork on crime
and criminal justice, cf. COM (2006) 437 final, 7.8.2006: "Developing
a comprehensive and coherent EU strategy to measure crime and
criminal justice: An EU Action Plan 2006-10". Back
Official Journal of the European Union (OJ) L 190, 18.7.2002,
p 1. Back
Note however that Eurojust and Europol are based on different
legal acts, cf 13. Back
All figures: Eurojust, Annual Report 2005, p 30 ff. Back
Proposal by the CCBE for the establishment of a European Criminal
Law Ombudsman, December 2004. Back
Cf Han Jahae, The European Criminal Law Ombudsman, speech delivered
at the ERA Seminar held 7 April 2006 in Trier, www.ecba.org/cms. Back
rticles 6(a)(ii) and 7(a)(ii) Eurojust Council decision, OJ L
63, 6.3.2002, p 1. Back
Annex to Eurojust Annual Report 2003. Back
Press Release 9409/06 (Presse 144), 2,732nd Council Meeting, Justice
and Home Affairs, Luxembourg, 1-2 June 2006, p 24. Back
COM (2006) 8 final, 24.1.2006: "Report from the Commission
based on Article 34 of the Council Framework Decision of 13 June
2002 on the European arrest warrant and the surrender procedure
between Member States", p 4. Back
Ibid, p 5. Back
Cf Commission communication COM (2004) 376 final, 18.5.2004: "Enhancing
police and customs co-operation in the European Union",
p 15. Back
CEPOL, Annual Report 2005, p 19. Back
Eurojust, Annual Report 2005, pp 36-47. Back
OJ L 336, 30.12. 2006, p 1. Back
Commission communication COM (2004) 376 final, 18.5.2004: "Enhancing
police and customs co-operation in the European Union",
p 22. Back
Cf eg Council document 9589/06 ADD 1, 19.5.2006: "Implementation
of the Action Plan to combat terrorism", providing lists
with the implementation state of play for several legislative
instruments considered urgent. Back
Cf. Speech delivered by the Europol Director, Max-Peter Ratzel,
on the Joint Parliamentary Meeting held in Brussels, 2-3 October
Bundesverfassungsgericht, judgment of 18.7.2005, 2 BvR 2236/04. Back
OJ C 316, 27.11.1995, p 1. Back
OJ L 63, 6.3.2002, p 1. Back
Articles 9 and 33 Eurojust decision. Back
Cf. Council document 7702/05, 1.4.2005. Back
Eurojust, Annual Report 2005, p 19. Back
Programme of measures to implement the principle of mutual recognition
of decisions in criminal matters, OJ C 12, 15.1.2001, p 10. Back
OJ L 190, 18.7.2002, p 1. Back
OJ L 196, 2.8.2003, p 45. Back
OJ L 76, 22.3.2005, p 16. Back
OJ L 322, 9.12.2005, p 33. Back
Press Release 13068/06 (Presse 258), 2,752nd Council Meeting,
Justice and Home Affairs, Luxembourg, 5-6 October 2006, p 30. Back
Press Release 13068/06 (Presse 258), 2,752nd Council Meeting,
Justice and Home Affairs, Luxembourg, 5-6 October 2006, p 21. Back
Press Release 9409/06 (Presse 144), 2,732nd Council Meeting, Justice
and Home Affairs, Luxembourg, 1-2 June 2006, p 9. Back
Commission proposal, COM (2006) 468 final, 29.8.2006. Back
Commission proposal, COM (2005) 91 final, 17.3.2005; see also
Press Release 13068/06 (Presse 258), 2,752nd Council Meeting,
Justice and Home Affairs, Luxembourg, 5-6 October 2006, p 24. Back
Commission communication COM (2006) 73 final, 21.2.2006: "Disqualifications
arising from criminal convictions in the European Union". Back
Commission Green Paper COM (2005) 696 final, 23.12.2005: "On
conflicts of jurisdiction and the principle of ne bis in idem
in criminal proceedings. " Back
Council document 5653/4/06 REV 4, 29.6.2006. Back
Commission staff working document SEC (2006) 1079, 29.8.2006,
pp 11 and 13 based on official UK information. Back
Press release, Finnish Presidency, 4.9.2006. Back
Commission proposal, COM (2004) 328 final, 28.4.2004. Back
Cf p 11 of the programme of measures to implement the principle
of mutual recognition of decisions in criminal matters, OJ C 12,
15.1.2001, p 10. Back
Cf p 10 of the programme of measures to implement the principle
of mutual recognition of decisions in criminal matters, OJ C 12,
15.1.2001, p 10. Back
Case C-440/05, OJ C 22, 28.1.2006, p 10. Back
Commission communication, COM (2005) 583 final/2, 24.11.2005. Back
Press Release 13068/06 (Presse 258), 2,752nd Council Meeting,
Justice and Home Affairs, Luxembourg, 5-6 October 2006, p 23. Back
OJ L 149, 2.6.2001, p 1. Back
OJ L 182, 5.7.2001, p 1 and OJ L 68, 15.3.2005, p 49. Back
OJ L 329, 14.12.2001, p 3. Back
OJ L 164, 22.6.2002, p 3. Back
OJ L 328, 5.12.2002, p 17. Back
OJ L 192, 31.7.2003, p 54. Back
OJ L 69, 16.3.2005, p 67. Back
OJ L 255, 30.9.2005, p 164. Please note: the validity of this
framework decision is challenged by the Commission in the European
Court of Justice, case C-440/05, OJ C 22, 28.1.2006, p 10. Back
Commission proposal, COM (2006), 168 final, 26.4.2006. Back
Press Release, Finnish Presidency, 22.9.2006: "EU's operating
conditions in matters of justice and home affairs must be guaranteed";
see also Commission Communication, COM (2006) 331 final,
28.6.2006: "Implementing The Hague Programme: the way
forward", p 13 seq. Back
Cf Euractiv. 25.9.2006: "Justice veto left standing post-Tampere". Back
T Balzacq, D Bigo, S Carrera and E Guild, Security and the
Two-Level Game: The Treaty of Prum, the EU and the Management
of Threats, CEPS Working Document, No 134, January 2006, p
ADNKI.com, 22.9.2006: "EU: Ministers deadlocked over immigration
and terrorism". Back
OJ L 105, 13.4.2006, p 1. Back
OJ L 349, 25.11.2004, p 1. Back
OJ L 385, 29.12.2004, p 1. Back
OJ L 213, 15.6.2004, p 5. Back
Commission proposal COM (2006) 403 final, 19.7.2006. Back
Commission proposal COM (2006) 401 final, 19.7.2006. Back
Article 38 Act concerning the conditions of accession of the Republic
of Bulgaria and Romania and the adjustments to the treaties on
which the European Union is founded, OJ L 157, 21.6.2005, p 203. Back
Commission communication, COM (2006) 549 final, 26.9.2006, p 9. Back
Deutscher Bundestag, Antrag der Fraktionen der CDU/CSU, SPD, FDP
und Buendnis90/DIE GRUENEN "EU-Beitritt Bulgariens und
Rumaeniens zum Erfolg fuehren", Drucksache 16/3090, 25.10.2006;
Deutscher Bundestag-16. Wahlperiode-60. Sitzung, Berlin, Donnerstag,
den 26. Oktober 2006. Plenarprotokoll 16/60, p 5850-5867. Back