21. Memorandum submitted by Graham
1.1 In an EU of soon to be 27 Member States,
there needs to be real progress in the field of justice and home
affairs, but the need for unanimity in Council has led to a policy
of national vetoes and lowest common denominator policies, while
democratic scrutiny at national and European level has been severely
lacking. The recommendation is for activation of the Article 42
TEU "passerelle" clause, which would allow for qualified
majority voting in Council and co-decision with the European Parliament,
so as to bring more efficient and speedier decision-making, with
greater opportunity for achievement and with enhanced democratic
scrutiny by the European Parliament and national parliaments.
2. THE EU IS
2.1 The "NO" votes in referendums
in the Netherlands and in France on the Constitutional Treaty
have been described as throwing the European Union into a state
of paralysis and crisis. The European Union, a community of values
of 25, soon to be 27, Member States has experienced other set-backs
in the past, and will overcome this one too, although the Constitutional
Treaty would have provided a significant and much needed overhaul
of the EU decision-making procedures.
2.2 One of the underlying problems for the
Union is the expectation-capability gap. The domain of public
security is probably the one where the gap is the widest. Even
if the attacks of 9/11, Madrid and London have contributed to
an expectation that the Union should be capable of effectively
fighting terrorism, the EU is still not delivering what European
citizens rightly expect.
2.3 In my opinion, there are a number of
reasons for this. For more than 30 years, issues of security were
not covered by the Treaties. Security was seen as an exclusive
Member State competence, leaving only a small scope for the Council
of Europe with its Conventions, in particular on fundamental rights.
2.4 This taboo is still present in the current
Treaties, seen as in the limited powers of the Court of Justice;
it is expressly stated that the Union cannot intervene in the
application of criminal law in the Member States, and that only
national courts of final appeal can refer cases to the Court of
2.5 During the 1970s, under the pressure
of the first wave of terrorist attacks in Europe (Italy, Germany,
etc) and in the 1990s with removal of internal borders and the
launch of the Schengen co-operation, this taboo became indefensible
and it was widely agreed that the Community and the Union ought
to have powers in these areas.
2.6 However, with the 1992 Maastricht Treaty
the choice was made to devise a special legislative decision-making
structure, which created a separate structure, the third pillar,
for co-operation in security and police matters, while providing
that the Council at any given time could decide to suppress all
or parts of this special decision-making structure.
2.7 The Union structure was rendered more
complicated when in the 1999 Treaty of Amsterdam, parts of the
policies on immigration, crossing of borders and civil judicial
cooperation were transferred to the first pillar, including the
2.8 I question whether it is still sensible
to separate the police and penal judicial cooperation from the
Community approach seven years after the adoption of the Tampere
Programme, and in particular in view of the terrorist attacks
of 2001, 2004 and 2005.
2.9 Why would the Council, in an EU of 25
or 27 Member States, want to perpetuate a democratically opaque
decision-making set-up in a policy area notable for sensitive
relations betweens citizens and the Union?
2.10 We find ourselves in the strange situation
where on the one hand, in the first pillar, internal market measures
are adopted by co-decision between the European Parliament and
the Council, and as a general rule using qualified majority in
the Council. On the other hand, in the third pillar, justice and
home affairs measures are governed by the consultation procedure,
giving the European Parliament only the right to issue a non-binding
opinion, and with Council adopting by unanimity.
2.11 Such contradictions were thrown into
sharp relief under the UK Presidency when the Home Secretary -as
President in Office of the Council- decided to promote a Data
Retention measure under a first pillar procedure. The measure
had long been stalled in Council awaiting the unanimity required
under the third pillar. Within the first pillar it was adopted
in less than six months.
2.12 There has been some progress in the
field of justice and home affairs, but the need for unanimity
in Council has led to a policy of national vetoes and lowest common
denominator policies, while democratic scrutiny at national and
European level has been hampered by the crippling effect of the
consultation procedure on the Union's parliament.
2.13 I had the honour to chair the European
Parliament's Justice and Home Affairs committee at the time of
the Council meeting in 1999 in Tampere and have observed the process
since then, which came full circle with the September 2006 Council
meeting in Tampere. They have been seven lean years. Rather like
a critic once observed of Samuel Beckett's play Waiting for
Godot: "It is a two-act play in which nothing happens,
3. THE CONSTITUTIONAL
3.1 In the area of Justice and Home Affairs,
the Constitutional Treaty would have provided for qualified majority
voting in the Council and the co-decision procedure between the
European Parliament and the Council. Both measures would ensure
more efficient and speedier decision-making and put the European
Parliament as a co-legislator on an equal footing with Council.
3.2 Yet the Constitutional Treaty is not
a pre-requisite for change. The 1992 Maastricht Treaty established
a procedure to allow Justice and Home Affairs to be transferred
from the third to the first pillar, using the so-called "passerelle"
procedure. The matter has been placed on the agenda of the Council
of Ministers by the Finnish Presidency.
4. THE ROLE
4.1 Article 42 TEU provides that "the
Council, acting unanimously on the initiative of the Commission
or a Member State, and after consulting the European Parliament
may decide that action in areas referred to in Article 29 TEU
shall fall under Title IV of the Treaty establishing the European
Community, and at the same time determine the relevant voting
conditions relating to it." This dormant procedure can therefore
be activated at any if Member States deem that the political or
legislative conditions are opportune. 14 years after the signing
of the Maastricht Treaty, this imperative moment in time has arrived.
4.2 The European Parliament has in a number
of recent resolutions argued that the activation of the passerelle
procedure would help reduce the democratic deficit, while at the
same time increasing the decision-making efficacy of the EU institutions.
Concurrently, the European Commission has in its mid-term review
of the Hague Programme, issued on 28 June 2006, and its communication
on "the way forward" sought to persuade member states
to activate the passerelle procedure.
4.3 With regard to democratic involvement,
there are those who argue that the third pillar is governed by
rules which ensure that national sovereignty is protected via
the use of unanimity and that national parliaments will provide
the necessary democratic scrutiny. It is clear that allowing for
unanimity voting in the Council in theory allows national parliaments
to commit their government to a certain negotiating mandate, which
can ultimately be defended via the use of their veto powers. In
reality most national parliaments do not possess the ability to
scrutinise the actions of their governments prior to the adoption
of acts in Council. Furthermore, if the national veto is applied,
it means legislative gridlock at worst and the threat of using
it means lowest common denominator results. The legislation currently
stalled in Council on the framework decision on the protection
of personal data in third pillar or the proposal for minimum procedural
guarantees for suspects in criminal proceedings are two examples
4.4 Moreover, in a number of matters, national
parliaments are unable to scrutinise EU legislation. Examples
abound, and include the EU-US agreements on extradition or the
new agreement on transfer of passenger data between the EU and
US, to be concluded by 1 October 2006. These agreements are concluded
without the involvement of the European Parliament, as the Treaty
does not foresee it, and without ratification by national parliaments
since they concern an agreement between the EU and a third country,
rather than between the Member State and a third country. These
agreements allow for interim application, even where several Member
States have invoked constitutional reservations. This state of
affairs is far from democratically satisfactory.
5. A POSSIBLE
5.1 It is important to stress that the passerelle
procedure does not force the Council to choose between voting
conditions that are either qualified majority voting on the one
hand or unanimous voting on the other hand. Qualified majority
voting could be supplemented with an "emergency brake procedure",
such as the one provided for in the Constitutional Treaty, where
Member States on specific grounds and conditions could invoke
a national veto. One could foresee certain areas of criminal law
and policing measures being governed by qualified majority voting,
whereas others would be supplemented by the "emergency brake"
which national parliaments could commit their governments to use.
5.2 If Council were to decide on qualified
majority voting as the normal procedure, democratic involvement
still remains an essential element. National parliaments would
be involved via the "emergency brake" procedure and
the European Parliament through the co-decision procedure.
5.3 In the 14 years that the co-decision
procedure has existed, the European Parliament has grown into
a mature and responsible negotiating partner. The procedure foresees
up to three readings, but due to the increasingly sophisticated
nature of the negotiations between Parliament and Council, many
legislative procedures are concluded after a first reading, thus
providing the Union with both democratic scrutiny and input and
the capacity to act effectively.
5.4 The political reality is that the Union
is faced with a number of problems that cannot be solved at a
national or regional level. Only EU-wide solutions are effective
when fighting trans-border organised crime, illegal immigration
or terrorism. Our citizens are asking: why is there no immigration
policy to prevent the human tragedy we see on our southern shores?
Why are we not sharing criminal intelligence in the fight against
terrorism or the fight against drugs? Why is there no access to
justice for victims of cross-border crime or cross-border marital
5.5 Unless we are able to activate the passerelle
clause we will never have a credible policy in justice and home
affairs. Member States will sit in their medieval fortresses with
the drawbridges firmly up. In the name of national sovereignty
they give free rein to global anarchy. Our citizens demand better.
3 October 2006