House of Commons - European Scrutiny Committee

European Scrutiny Committee Contents

1 The EU's Justice and Home Affairs Programme for the next five years

(30701) 11060/09 COM(09) 262

Commission Communication: An area of freedom, security and justice serving the citizen

Legal base —

Document originated 10 June 2009

Deposited in Parliament 17 June 2009

Department Home Office

Basis of consideration EM of 30 June 2009

Previous Committee Report None

To be discussed in Council 16-17 July 2009

Committee's assessment Politically important

Committee's decision For debate in European Committee B

Background

1.1 Title VI (Articles 29 to 42) of the EU Treaty contains provisions on police and judicial cooperation in criminal matters. Proposals for legislation to achieve the objectives of the Title may be initiated by Member States or the Commission. With one exception,[1] unanimity in the Council is required for the adoption of legislation for which Title VI provides the legal base. The legislation is not subject to co-decision with the European Parliament.

1.2 Title IV (Articles 61 to 69) of the EC Treaty contains provisions on visas, asylum, immigration and other policies relating to the free movement of people, including judicial cooperation in civil matters. Qualified majority voting in the Council and co-decision with the European Parliament is the procedure for the adoption of most legislation under Title IV.

1.3 Article 69 of the EC Treaty provides that measures adopted under Title IV are not to apply to the United Kingdom unless it expressly opts into them.

1.4 In October 1999, the European Council approved a five-year programme of action ("the Tampere Programme") on justice and home affairs, including asylum and immigration, civil and criminal justice and police and customs cooperation. In 2004, the previous Committee made a Report to the House on a Communication from the Commission assessing progress in implementing the Tampere Programme and proposing priorities for the next five years.[2] The Communication was debated on the Floor of the House on 13 October 2004.

1.5 In November 2004, the European Council agreed a further five-year programme of action on justice and home affairs ("the Hague Programme").[3] In May 2005, the Commission proposed an Action Plan which set out about 250 measures (such as Green Papers, legislation and agreements with third countries) to give effect to the Programme.[4] It was adopted by the Council in June 2005.

The document

1.6 The Communication is intended to contribute to the Council's thinking about the contents of the next justice and home affairs programme (JHA). The Programme will run from 2010 until the end of 2014. It is likely to be approved under the Swedish Presidency and to be known as the Stockholm Programme. In parallel with this Communication, the Commission has presented its evaluation of the Hague Programme, on which we report in chapter 11 below.

1.7 The Commission says that the EU needs a new JHA programme that:

"builds on the progress made so far and learns the lessons of the current weaknesses in order to make an ambitious push forward. The new programme should define the priorities for the next five years, take up the challenges of the future and make the benefits of the area of freedom, security and justice more tangible to the ordinary citizen."[5]

1.8 In the Commission's view, in future all the action on JHA should be focussed on the citizen and should have four main priorities:

"Promoting citizens' rights — a Europe of rights" in which fundamental human rights are protected;
"Making life easier — a Europe of law and justice", in which it is easier for people and businesses to gain access to the courts to enforce their rights and resolve disputes;
"Protecting citizens — a Europe that protects" through a new strategy aimed at improved cooperation for the prevention and detection of serious cross-border crime, including terrorism;
"Promoting a more integrated society for the citizen — a Europe of solidarity" through the implementation of the European Pact on Immigration and Asylum.

1.9 The Commission says that the success of the new programme will depend on five things: the consistency of JHA policies with each other and with other EU policies; closing the gap between EU policies and legislation, on the one hand, and their implementation by the Member States, on the other; improving the quality of EU legislation; improving the evaluation of policies and legislation; and ensuring that JHA policies are accompanied by the money needed to put them into effect.

1.10 The following are examples of the action the Commission proposes for inclusion in the Stockholm Programme under the heading "Promoting citizens' rights":

more enforcement action by the Commission to ensure that Member States correctly transpose and apply the existing EC legislation on, for example, the free movement of persons within the EU, xenophobia, racism and other types of unfair discrimination;
give greater protection to the most vulnerable people, such as women who are subjected to domestic violence and children;
develop a new and comprehensive strategy for the protection of personal data, backed where necessary by new legislation and agreements with third countries and international organisations;
take action to encourage electors to take part in the 2014 elections to the European Parliament by, for example, holding all the elections in the week beginning 9 May; and
strengthen the existing arrangements for a citizen of a Member State without consular representation in a third country to receive assistance from any other Member State's consul.

1.11 Under the heading "Making people's lives easier: a Europe of law and justice", the Commission says that :

"The European judicial area must allow citizens to assert their rights anywhere in the Union by facilitating their access to justice. It must equip economic operators with tools that enable them to benefit fully from the single market, especially at a time of economic crisis."[6]

1.12 Accordingly, the Commission proposes that the Stockholm Programme should include measures to extend the mutual recognition of judicial decisions:

so as to permit the abolition of exequatur, the procedure for a court in one country to authorise the enforcement of a judgment given by a court in anther country; and
apply mutual recognition to new matters, such as wills, matrimonial property rights, witness protection and disqualification from, for example, being a company director, driving a motor vehicle or practising a profession.

1.13 The Commission says that:

"In criminal matters such as terrorism, organised crime and attacks on the Union's financial interests, only action at European level can deliver effective results. Further action is therefore needed on the closer alignment of substantive law in relation to certain serious crimes, generally of a cross-border nature, which require common definitions and penalties. Alignment here will help to extend mutual recognition and, in some cases, almost completely abolish the grounds for refusal to recognise other Member States' judgments."[7]

1.14 Access to justice should be made easier by, for example, making more and better use of ICT to provide the public with access to information about the law and the courts and for the authentication of documents.

1.15 The Commission says that the EU should improve its legislation on the protection of victims of crime and offer them more practical support.

1.16 It should also help businesses and the functioning of the single market by, for example, harmonising aspects of contract law and ensuring that court decisions are enforced more effectively. To boost external trade, the EU should make agreements with its main economic partners on the recognition and enforcement of court decisions in civil and commercial matters.

1.17 Under the heading "A Europe that protects", the Commission proposes that the next five-year JHA programme should call for a new strategy to improve the internal security of the EU. The strategy would have three main strands:

more and better cooperation between law enforcement authorities to prevent and detect cross-border crime; greater use of Europol; and cooperation agreements with third countries;
improving the administration of justice by, for example, creating "a real European Evidence Warrant to replace all the existing legal instruments. The warrant would be automatically recognised and applicable throughout the Union, thereby encouraging prompt and flexible cooperation between Member States. It would lay down the deadlines for enforcement and limit so far as possible the grounds for rejection";[8] and
better management of the EU's external borders, which will require strengthening FRONTEX,[9] developing the European Border Surveillance System, and establishing an electronic system for recording all entries to and exits from the territory of the Member States.

1.18 The Communication goes on to make proposals for action to be included in the Stockholm Programme on human trafficking; the sexual exploitation of children and child pornography; cybercrime; economic crime; and illicit drugs.

1.19 The Commission says that three objectives should be given priority in the EU's efforts to reduce the threat of terrorism. They are:

countering the radicalisation of vulnerable people;
greater surveillance of the Internet to prevent and detect its use for terrorist purposes; and
improving and keeping up-to-date the arrangements to prevent and detect the financing of terrorism.

1.20 Under the heading "Promoting a more integrated society: a Europe that displays responsibility and solidarity in immigration and asylum matters", the Commission calls for the implementation of the European Pact on Immigration and Asylum which was approved by the European Council in October 2008.[10] It also makes proposals for the inclusion in the Stockholm Programme of action advocated in the Commission's Communications on immigration and asylum in the summer of 2008.[11]

1.21 For example, the Communication says that:

the management of migration should be integral to the EU's policies for dialogue and partnership with third countries;
the EU should take the action necessary to achieve a better balance between the demand for labour and the supply of workers from within Europe and from abroad who have the required kills;
an Immigration Code should be adopted to ensure uniform rights for legal immigrants;
greater efforts should be made by Member States, with the support of the EC, to integrate legal immigrants into their host communities;
an effective policy on the removal and return of illegal immigrants should be developed;
over the past decade, the EU has made good progress in creating a common European asylum system and adopted the first phase of legislation for that purpose; the second phase of legislation now needs to be adopted quickly with the aim of establishing, no later than 2012, a single asylum procedure and "a uniform international protection status";[12]
by the end of 2014, the EU should agree to the mutual recognition by Member States of each other's decisions to grant protection to asylum seekers; and
consideration should be give to the introduction of a voluntary system for people granted asylum by one Member State to be resettled in another.

1.22 The Commission concludes with the hope that, by the end of this year, the European Council will adopt an ambitious JHA Programme based on the Communication. The Commission will then propose an Action Plan to give effect to it.

1.23 The Annex to the Communication contains a list of what are, in the Commission's view, the 50 priority issues.

The Government's view

1.24 In his Explanatory Memorandum of 30 June 2009, the Home Secretary (Alan Johnson) says that the Government welcomes the Communication and supports the continuation of the JHA programme for a further five years. He comments on most of the Commission's individual proposals and says that there is much in the Communication with which the Government can agree. For example, the Government:

supports the Commission's proposal for an EU-wide policy on fighting serious organised crime;
agrees that the Stockholm Programme should reflect the priorities set out in the European Migration and Asylum Pact.;
welcomes the Commission's emphasis on protecting fundamental human rights;
supports the proposals for the protection of children and other vulnerable people; and
welcomes the Commission's call for better implementation and evaluation of existing EU legislation.

1.25 The Home Secretary says that:

"There should, over the course of the next five years, be an emphasis on practical action and legislative proposals should only be brought forward where there is a […] realistic chance of agreement and where they will add value."[13]

1.26 While there is much with which the Government can agree, the Government does not support some of the Commission's proposals. The Home Secretary says, for example, that:

The Government does not agree with the Commission's proposals that, throughout the EU, elections to the European Parliament should be held in the week of 9 May 2014; it wants to retain the flexibility to set the date to reflect national electoral traditions and practical considerations.
While the Government would support the extension of mutual recognition of judicial decisions, particularly of disqualifications, it believes that "it is essential that the differences in Member States' justice systems are respected and the Government will seek to ensure that this continues in the coming years".[14]
"The Government recognises that there may be benefit in the closer alignment of substantive law in relation to some serious crimes, generally of a cross-border nature, but we will want to consider any such proposals very carefully, with a particular focus on subsidiarity considerations. The Government supports efforts to ensure that certain, essential elements are covered but does not support common definitions of actual offences or a move away from the principle of mutual recognition."[15]
The Government does not support the Commission's statement (quoted in full in paragraph 1.13 above) that in criminal matters such as terrorism, organised crime and attacks on the Union's financial interests, "only action at European level can deliver effective results". The Home Secretary comments that there is a role for EU action but most of the operational counter-terrorism work is done bilaterally or multilaterally through informal channels.
The Government has serious reservations about the Commission's proposal that, by the end of 2014, their should be mutual recognition of Member States' decisions to grant asylum. It believes that "refugees should seek and obtain asylum in the first EU country that they reach, rather than being free to move on to another Member States after having their claims accepted by one."[16]

1.27 The Communication will be considered by senior officials from the Member States in July before being discussed by the JHA Council on 21-22 September. There will be detailed negotiations on the contents of the Programme in the autumn before it is put to the JHA Council for approval in November and to the European Council in December.

Conclusion

1.28 We are grateful to the Home Secretary for his comprehensive and helpful Explanatory Memorandum. In our view, its authorship and length properly reflect the importance of the Commission's Communication.

1.29 We share the Commission's and Government's emphasis on the need for practical cooperation between Member States and better implementation and evaluation of existing EU policies and legislation. We have no doubt of the importance of cooperation between Member States, with the assistance of the Commission, on immigration, asylum, cross-border organised crime and terrorism and mutual recognition of judicial decisions. But we understand why the Government has serious reservations about some of the proposals and share its concerns.

1.30 Between now and the meeting of the JHA Council in November, there will be intensive negotiations on the contents of the Communication. We ask the Home Secretary to provide us with regular progress reports on the discussions. We also recommend that the Communication be debated in European Committee B in October. We believe this is essential in order to give the House the opportunity for sustained questioning about the proposals and the Government's views on them. Meanwhile, we shall keep the document under scrutiny.

1 See Article 34(2)(c) of the EU Treaty. Back

2 (25730) 10249/04: HC 42-xxviii (2003-04), 14 July 2004. Back

3 Hague European Council, 4-5 November 2004, Presidency Conclusions, paragraphs 14 to 20 and Annex I. Back

4 (26566) 8922/05: HC 34-iv (2005-06), chapter 22 (20 July 2005). Back

5 Commission Communication, page 5, first paragraph. Back

6 Commission Communication, page 10, fifth paragraph. Back

7 Commission Communication, page12, fifth paragraph. Back

8 Commission Communication, page 17, fourth paragraph. Back

9 FRONTEX is the European Agency for the management of operational cooperation at the external borders of the Member States. Back

10 (29937) 12626/08: see HC 16-xxix (2007-08), chapter 17 (10 September 2008). Back

11 (29765) 11017/08 and (29766) 11022/08: see HC 16-xxix (2007-08), chapters 15 and 16 (10 September 2008). Back

12 Commission Communication, page 27, fourth full paragraph. Back