Select Committee on Home Affairs Written Evidence

12.  Memorandum submitted by Baroness Sarah Ludford MEP


  1.  This submission is to the House of Commons Home Affairs Select committee enquiry into European Union justice and home affairs issues with particular reference to the Commission's mid-term review of the Hague programme and proposals to implement the bridging ("passerelle") clauses of the EU treaties to allow qualified majority voting and co-decision on more JHA matters.[98] * This submission concentrate on the benefits of transforming the handling of policing, judicial cooperation and criminal law "third pillar" measures from the present inter-governmental to a Community decision-making procedure. In the view of the author as a practising European legislator this would give some chance of moving forward in this field compared to the current ineffective, undemocratic and dysfunctional state of affairs, although not as much as the adoption of the Constitutional Treaty for which the passerelle is no substitute.


  2.  As opinion polls regularly show, European Union citizens, soon to be half a billion of us, expect European action to deliver a real enhancement in security through practical measures in tackling the challenges of crime, terrorism and immigration. For the last seven years since the step-change in capacity in justice and home affairs policy instituted by the Treaty of Amsterdam was put into effect through most of the asylum, immigration and borders matters being brought within Community competence ("Title 1V" of the EC treaty), the development of an "area of freedom, security and justice" has been guided by two main programmes, the Tampere programme of 1999 and the Hague programme of 2004. Both set ambitious goals towards strong common action in JHA (a mixture of integration and cooperation) but the fact that the Hague programme is partly repeating the injunctions to progress of 1999 shows that productivity is fairly modest.

  3.  In regard to criminal (third pillar) matters, some progress has certainly been achieved in harmonisation of several crimes and accompanying penalties at EU level, gains in mutual recognition, the creation of the European Judicial Network and (especially) the setting up of Eurojust. But legal, political and institutional shortcomings are prejudicing the accomplishment of the real achievements that ought to be within our grasp. At present, criminals are more likely than police and prosecutors to enjoy the fruits of a united Europe.

  4.  The third pillar is characterised by shared right of initiative between the European Commission and individual member States, adoption of measures only by unanimous vote, consultative rather than co-decision role for the European Parliament, limited role of the European Court of Justice and lack of infringement powers for the Commission. The national veto leads frequently to deadlock or even paralysis, often to lowest common denominator outcomes and overall to failure to deliver results essential to the security and freedom goals member states' leaders have themselves set. It also means that decision-making is secretive, lacking in full democratic legitimacy and not adequately under judicial conntrol. Unless member states are disciplined in their use of the right of initiative, this can be abused to provide no more than a string of headlines during a Presidency. And the absence of Commission enforcement powers means a failure to implement fully even the modest harvest of agreed measures. It seems clear that there is an increasing need for reform of the institutional and procedural aspects of JHA policy, principally in the third pillar.


  5.  Recognition of the problems of JHA decision-making is hardly new; indeed that is why there has been continuous tinkering with the original intergovernmental/national veto model. The EU today faces the same old debate as 20 years ago between national sovereignty and member states' desire to have meaningful common EU action in tackling security and immigration challenges and promoting fundamental rights and access to justice. The passerelle clauses were included in the 1992 Maastricht treaty and the partial transfer of JHA to Community competence was effected in the 1997 Amsterdam treaty, while the 2001 Nice Treaty provided for semi-automatic transition to qualified majority voting (QMV) and co-decision with the European Parliament (which happened in 2005) for most Title 1V matters. The passerelle provision in Article 42 TEU would allow third pillar matters to be transferred to Community competence while completing the activation of Article 67(2) second indent TEC would mean passing legal migration and family law to QMV and co-decision as asylum, visas and illegal immigration matters have been.

  6.  In 2003 the new EU Constitutional Treaty was agreed, with JHA policy one of the principal objects of substantial reform, but the set-backs in national approval mean the Constitution stays on the shelf and the third pillar has to carry on under its present difficulties. It also leaves Title 1V TEC with the complexity (or advantages) of the opt-out/opt-in provisions for the UK and Ireland and opt-out for Denmark. The European Court of Justice judgement in September 2005 in case C-176/03 found some limited competence for substantive though not procedural criminal law under the TEC when that is necessary to ensure the full effectiveness of other Community policies such as environmental policy. But "mainstream" third pillar matters were unaffected by the judgement, and the principal live issue in the absence of the new Constitution remains the urgent need to improve the decision-making process in that area.

  7.  In its 2004 assessment of the Tampere programme the Commission rightly stated that "the constraints of the decision-making process and of the current institutional context preclude the effective, rapid and transparent attainment of certain political commitments". Two years later in June 2006 it adopted a politically and legally ambitious package of four important communications which again highlight the disadvantages of the decision-making procedure for criminal matters and offer practical solutions for improving the current situation. These communications were discussed by Justice and Home Affairs ministers meeting informally in Tampere on 21-22 September. Member states' positions are divided, with Finland in the Presidency known to be keen, France supportive and Germany reserved. It was encouraging that the position of the United Kingdom as expressed to the House of Commons Foreign Affairs committee in June by the Foreign Secretary was, while noncommittal, relatively and open-minded. It could be said though that member states have few arguments of principle for declining to activate the passerelle clauses since they agreed on even more far-reaching changes in the Constitutional Treaty.


  8.  EU citizens are being both misled and let down by current arrangements. Member state make declaratory statements but in their actions they fail to deliver and commitments made at the highest political levels (European Council) often get blocked at the level of ministerial meetings. Member states' different traditions and legal systems are often presented as the main obstacles to reaching agreement at the EU level in the third pillar, but when the political will is there such as on the European Arrest Warrant compromises have been found. "National sovereignty" arguments may be a pretext for unwillingness to pool efforts.

  9.  Behaviour is often contradictory and riddled with paradoxes. For instance member states are reluctant to share information between EU police authorities and with Europol and Eurojust in the fight against crime and terrorism, the lack of mutual trust justified on grounds of lack of uniform data protection standards. But the same member states refuse to agree a binding instrument on third pillar data protection rules, proposed by the Commission in October last year but still stuck in the Council. Then the same member states have no problem in exchanging data with the US, such as data related to air passengers (PNR) or banking information from the SWIFT network, without any or any effective data protection guarantees.

  10.  Due to the current decision-making procedure in the third pillar, member states have failed to adopt very important measures for both increasing security and enhancing protection of individual rights. These include, as well as the data protection rules just cited, Commission proposals designed to allow cross-border investigation and prosecution, to facilitate exchange of information between law enforcement authorities under the "availability principle", to tackle race hate crime across the EU, and to provide minimum standards for fair trial rights for defendants in criminal proceedings. This latter is essential to getting effective EU-wide criminal justice to accompany the European Arrest Warrant, but very divergent positions in the Council and the unanimity requirement have led a small group of member states led by the UK to prefer a toothless non-binding political declaration. On other topics agreement was reached but only with ineffective provisions, such as the European Evidence warrant.

  11.  In May 2005, Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria signed the "Prüm Treaty" on enhanced cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration. Some contend that this type of "advanced guard" forum, like the G6 grouping, can act as a catalyst to progress when EU channels are blocked. The alternative view is that it means a lessening of the interest and commitment of those states to make the EU forum more productive. In addition, this kind of partial and intergovernmental form of cooperation outside the EU legal framework raises important questions regarding how parliamentary input (European and national) and judicial oversight can be secured.

  12.  Another characteristic of the third pillar is the poor implementation by member states of the measures agreed upon by ministers. It is particularly striking to see the slow implementation of the European Arrest Warrant which was hailed as such a political breakthrough, or the Framework Decision on the freezing and confiscation of assets and evidence which is so relevant to fighting major crime. All member states have failed to complete the full and correct transposition of the 2002 Framework Decision on Terrorism. The Commission was expected to adopt in 2005 the second report on progress in implementation, but this has still not been possible because of a "lack of information and of notification of legislative texts by Member States". Only one Member State (Spain) has fully complied with its transposition obligations regarding the Council Framework Decision of 2002 on joint investigation teams.


  13.  The view of those who claim that nothing should be done to anticipate the Constitution is not shared here. In any case the exploitation of the possibilities of Article 42 TEU or Article 67(2) TEC is hardly "cherry-picking" from it, since those articles are from the existing treaties and part of the Community acquis. Since the passerelle clauses are likely to be effectively be subsumed in any foreseeable new constitutional settlement, is a transitional step toward that for the existing possibilities to be used.

  14.  This author hopes for an early adoption of, if not the Constitutional Treaty itself, then something very similar. This is certainly preferable to the partial solution of the passerelle clauses since it would bring overall efficiency, accountability and transparency to the decision-making process and secure coherent improvements in the area of freedom, security and justice in general and third pillar matters in particular. It would strengthens the powers of Europol and Eurojust and create the European public prosecutor. Most importantly, it would enhance citizens' rights by making the Charter of Fundamental Rights binding on the EU institutions. Article 42 TEU does not however involve any such expansion of competence and the third pillar (entirely or partially) would be transferred as it is to the first pillar, without a modification of its content.

  15.  The transfer of competence under Article 42 is not entirely straightforward, requires unanimity and would need national ratification. It is true that the transfer need not be of the whole third pillar. Not need it mean transfer to full QMV and co-decision; other combinations are possible, even unanimity and consultation. (Though it would seem pointless to go to the effort of invoking the clause for a meagre result, and it may be with that recognition that the Minister for Europe Geoff Hoon MP has said it is not inevitable but likely that QMV and co-decision would apply.) It is possible that an "emergency brake", following the model of the Constitutional Treaty, could be inserted for member states concerned to protect the specific features of their legal and criminal justice systems. In addition, member states' rights of initiative might be kept.

  16.  It is however very important that the European Court of Justice gets full jurisdiction on third pillar measures. However, a simple transfer of the third pillar to Community competence will not suffice, and Court jurisdiction over Title 1V matters regarding visas, immigration, asylum and civil law must in turn be enlarged to that enjoyed over other matters under the EC Treaty. The Commission communication in the June 2006 package on enlarging the Court's jurisdiction over Title IV matters was welcome, since it is unacceptable to limit access to citizens' justice precisely in the area where their fundamental rights are most at risk.

  17.  The Commission June 2006 communications do not examine the potential consequences of the use of the passerelle clauses for the UK, Ireland and Denmark. It can however be argued that for the UK and Ireland adopting the passerelle clause would put them in an advantageous situation compared to the present situation (and to the Constitutional Treaty) since they would be able to make use of their opt-out/in facility for criminal law as well as immigration etc measures. Denmark would be entirely excluded from criminal cooperation once it moved to Title IV TEC. But advantages of the Constitutional Treaty are that it reduces the complexity and confusion of the "variable geometry" which characterises the area of freedom, security and justice at present.

  18.  Achievements in the area of freedom, security and justice have neither lived up to EU leaders' promises nor met the scale of the challenges. The procedures for decision-making are obscure, too often secretive and leave too much power to the execuitve. It is most welcome that your committee is carrying out this enquiry and your report will be read with interest not only in the European Parliament but no doubt in other national parliaments. We all share the goal of increasing democratic accountability as well as timely action in this field and are partners, not competitors, in that endeavour.

4 October 2006

98   * This submission is written in a personal capacity. Back

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