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The legislative process and legislative procedures
applicable under the Justice and Home Affairs Pillar of the Treaty
on European Union
Introduction
The inclusion of justice and home affairs in the Treaty on
European Union (the Maastricht Treaty) formalised existing inter-governmental
arrangements which had grown up over the years. Prior to the creation
of the Third Pillar a plethora of working groups and fora dealt
with different issues, ranging from drugs to illegal immigration,
and from terrorism to customs cooperation. Title VI of the
Maastricht Treaty, consisting of a single Article K, divided into
nine provisions K.1 to K.9, places inter-governmental co-operation
in justice and home affairs on a formal treaty basis and sets
out a list of areas which are of common interest.
Legislative Process
The organisational structure of the Third Pillar represents
a convergence of the previously existing working groups and structures
at European Union level. The accompanying diagram indicates the
institutional structure applicable under the Third Pillar. Preliminary
work is carried out in various working groups which are overseen
by three steering groups dealing with (a) immigration and asylum,
(b) security, police and customs cooperation and (c) judicial
cooperation. The three Steering Groups are brought under
the umbrella of the Coordinating Committee, established
by Article K.4 and also known as the K.4 Committee. The Coordinating
Committee contributes alongside the Committee of Permanent Representatives
(COREPER) to the preparation of the work of the Council of Ministers
of Justice and Home Affairs. Where agreement cannot be reached
on a proposal in the Justice and Home Affairs Council it may be
referred to the European Council.
In the classical case, a proposal will start life in a Third
Pillar working group and then progress up the line, through the
relevant steering group, the K.4 Committee and COREPER to the
Justice and Home Affairs Council where it will be adopted. There
are, however, many exceptions to this. The Steering Groups now
play little part in the negotiating process. In addition, recent
Presidencies have adopted a more sensible division of work between
the K.4 Committee and COREPER avoiding unnecessary duplication
between the two. Some proposals have been processed almost entirely
at K.4 Committee and COREPER level, with assistance from an ad
hoc group of Counsellors based in Member State Permanent Representations
in Brussels.
The Justice and Home Affairs Council, pursuant to Article
K.4(3), acts unanimously except on matters of procedure and in
cases where Article K.3 provides for other voting rules. Article
K.3(2)(b) provides that the Council may decide "that measures
implementing a joint action are to be adopted by qualified majority",
and according to Article K.3(2)(c) measures implementing conventions
drawn up under the Third Pillar "shall be adopted within
the Council by a majority of two-thirds of the High Contracting
Parties." However, the convention itself can stipulate different
decision-making rules and in practice implementing measures are
usually adopted on the basis of unanimity.
Because the underlying principle for all Council deliberations
is that the Council is one and indivisible it is possible for
Third Pillar proposals to be given formal approval in Councils
other than the Justice and Home Affairs Council. However it is
only Third Pillar items which do not require discussion by Ministers
("A" points) which are put to Councils covering other
sectors of EU business. These proposals still require the prior
approval of the Governments of the Member States, who will decide
internally what clearances they need to approve the item. It is
not unusual for political agreement to be reached on a Third Pillar
proposal at a Justice and Home Affairs Council and for the proposal
to be subsequently adopted at another Council meeting once the
accuracy of the text in the different languages of the Member
States has been checked by jurist linguists. This avoids the need
to delay the formal adoption of a proposal until the next Justice
and Home Affairs Council meeting and allows for the efficient
conduct of Council business.
COREPER decides on the handling of Third Pillar business
by the Council and has a formal role in the preparation of the
agenda for Council meetings. The general principle which COREPER
follows is that anything involving justice and home affairs which
requires discussion at the Council level will be handled by the
Justice and Home Affairs Council. There have, however, been a
few occasions where a matter has been discussed at the General
Affairs Council after discussion at the Justice and Home Affairs
Council.
The K.4 Committee is chaired by the Presidency and composed
of senior officials mainly drawn from the national ministries
responsible for justice and home affairs. The K.4 Committee occupies
a key position between the Council and the Steering Groups as
it will give opinions to the Council and help prepare its discussions
(a task it shares with COREPER). It meets on average once a month.
It is important to note that the K.4 Committee does not displace
COREPER which retains its role in preparing the Council's work
alongside the K.4 Committee. The Steering Groups, like the K.4
Committee, are composed of one representative from each of the
Member States and an observer from the Commission, and are serviced
by DG H of the Council Secretariat. Under the recent Irish and
Dutch Presidencies the steering groups have met only once during
each Presidency term and have confined their discussions to the
future work programme rather than playing a part in the negotiations
on specific proposals. The working groups consist of representatives
of the Member States. They are chaired by the Presidency and assisted
by the Council Secretariat and the Council Legal Service. The
Commission also attend meetings of the working groups.
Nature of the Instruments adopted under the Third Pillar
Measures adopted under the Third Pillar do not lead to the
adoption of Community law under the normal Community legislative
procedures because the areas covered are legally outside Community
competence. Although the Community institutions have specific
roles in this work, instruments adopted under the Third Pillar,
where they are legally binding, are binding under international
law and not Community law.
Article K.3 sets out the forms that cooperation in
justice and home affairs may take. Article K.3.(2)(a) to (c) lists
the following forms of cooperation:
1. the adoption of joint positions and the promotion of any
cooperation contributing to the pursuit of the objectives
of the Union;
2. the adoption of joint action and the decisions on measures
implementing joint action; and
3. the drawing up of conventions and measures implementing
such conventions.
Only conventions drawn up pursuant to Article K.3(2)(c) are
clearly indicative of a binding act of public international law.
The legal status of joint positions and joint actions is less
clear and has given rise to considerable academic argument. The
question whether or not an act in the form of a joint action (or
joint position) is binding in international law will primarily
depend upon the intention of the parties and the terms of the
act itself.
The Council may also adopt non-binding resolutions and recommendations.
Unlike the Community Pillar where the Council may only amend
a Commission proposal by unanimity, a much more flexible approach
applies under the Third Pillar. The majority of Third Pillar proposals
emanate from the Presidency in office who may decide to change
its draft at any stage in the process in order to achieve consensus
among the Member States.
Role of the Commission
The position of the European Commission is set out in Article
K.4, which provides for a full association of the Commission with
the work in the field of justice and home affairs but its powers
are not the same as those it enjoys under the Community pillar.
It has a right of initiative which is shared with the Member States
in the areas referred to in Article K.1(1)-(6). Hence, the Commission
has a right of initiative in the following matters of common interest:
asylum policy; rules governing the crossing by persons of the
external borders of the Member States and the exercise of controls
thereon; immigration policy and policy regarding nationals of
third countries; combating drug addiction; combating fraud on
an international scale; and judicial cooperation in civil
matters. Excluded from this right of initiative are: judicial
cooperation in criminal matters; customs cooperation
and police cooperation. These matters remain reserved to
initiatives taken by a Member State (Article K.3(2)).
Role of the European Parliament
Under Article K.6 the European Parliament will be informed
of discussions by the Presidency and the Commission, it will be
consulted on the principal aspects of Justice and Home Affairs
activities and its views must be "duly taken into consideration".
It may ask the Council questions or make recommendations to it
and every year it is required to hold a debate on the progress
made in implementation of the areas referred to in Title VI. However,
because of the inter-governmental nature of Justice and Home Affairs
cooperation, democratic control rests with national parliaments
rather than the European Parliament. In the Third Pillar. therefore,
the views of the European Parliament have no binding force.
Role of the European Court of Justice
The European Court of Justice is given no jurisdiction in
respect of the Third Pillar itself. The only provision of Title
VI listed in Article L (this Article sets out the scope of the
European Court of Justice jurisdiction under the Treaty on European
Union) is the one enabling conventions concluded under Article
K.3(2)(c) to confer jurisdiction on the Court "to interpret
their provisions and to rule on any disputes regarding their application,
in accordance with such arrangements as they may lay down".
The Member States therefore have discretion whether or not to
provide in a convention for the European Court of Justice to have
jurisdiction, and if so, to prescribe the extent of such jurisdiction
and the arrangements applicable to it.
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