Select Committee on Home Affairs Written Evidence

21.  Memorandum submitted by Graham Watson MEP


  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.


  2.1  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 Justice.

  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 Schengen co-operation.

  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, twice."


  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.


  4.1  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 illustrating this.

  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.


  5.1  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 breakdown?

  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

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