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.
* 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.
C. A PERSISTENT
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
D. DEFECTS OF
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.
E. MOVING FORWARD
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