Select Committee on European Communities Nineteenth Report




5. The key Treaty texts in this area are Title VI of the Treaty on European Union (TEU) (Provisions on police and judicial cooperation in criminal matters) and Title IV of the Treaty establishing the European Community (TEC) (Visas, Asylum, Immigration and other policies related to free movement of persons). The text of two of the relevant articles is set out below:

Title VI: Article 29 TEU (ex Article K.1)

    "Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the field of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia.

    That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through:

      —  Closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32;

      —  Closer cooperation between judicial and other competent authorities of the Member States in accordance with the provisions of Articles 31(a) to (d) and 32;

      —  Approximation, where necessary, of rules on criminal matters in the Member States in accordance with the provisions of Article 31(e)".

6. Title VI of the TEU is often referred to as the "Third Pillar". Action under the Third Pillar is based on closer co-operation between law enforcement bodies. All measures must be agreed unanimously (except those which are procedural).

Title IV: Article 61 EC (ex Article 73i)

    "In order to establish progressively an area of freedom, security and justice, the Council shall adopt:

    (a)  Within a period of five years after the entry into force of the Treaty of Amsterdam measures aimed at ensuring the free movement of persons in accordance with Article 14, in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration, in accordance with the provisions of Article 62(2) and (3) and Article 63(1)(a) and (2)(a), and measures to prevent and combat crime in accordance with the provisions of Article 31(e) of the Treaty on European Union;

    (b)  Other measures in the fields of asylum, immigration and safeguarding the rights of nationals of third countries, in accordance with the provisions of Article 63;

    (c)  Measures in the field of judicial cooperation in civil matters as provided for in Article 65;

    (d)  Appropriate measures to encourage and strengthen administrative cooperation, as provided for in Article 66;

    (a)  Measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime within the Union in accordance with the provisions of the Treaty on European Union."

7. The provisions in Title IV of the EC Treaty form part of the so-called "First Pillar" of the European Union. Decision-making in this Title, for the first five years after the coming into force of the Amsterdam Treaty, requires unanimity in the Council, acting on a proposal from the Commission, or on the initiative of a Member State. The European Parliament is to be consulted.

8. After a period of five years has expired, there is provision in the Treaty to move to co-decision between the Council and the European Parliament. Such a change of procedure would, however, require a unanimous decision of the Council.

9. As will be seen from the extracts printed above, the changes introduced by the Amsterdam Treaty set a detailed and ambitious work programme to be achieved within a five year deadline.


10. On 3 December 1998, the Justice and Home Affairs Council adopted an "Action Plan of the Council and Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice[1].

11. The Action Plan consists of two parts. The first is a rather philosophical section, enlarging on the language of the Treaty, but also introducing some new aspects. In particular, it makes a link to the enlargement process. It states that:

    "the adoption of the action plan will have the additional advantage of setting out for the benefit of the applicant countries a clear and comprehensive statement of the Union's priorities in this area". (para 21)

12. The second part of the Action Plan suggests selection criteria for identifying the priorities and then sets out a more detailed list of measures to be adopted, based on the provisions in Title IV of the EC Treaty and Title VI of the TEU but further elaborated, and broken down into two levels of priority: those to be completed within two years, and those to be completed within five.

13. The Action Plan was endorsed by the Vienna European Council on 11-12 December 1998. The Council was urged "to start immediately with the implementation of the two-year priorities defined in the action plan" The final paragraph of the section of the conclusions dealing with justice and home affairs reads

    "The special meeting of the European Council to be held on 15 and 16 October 1999 in Tampere will evaluate progress achieved and give further guidance to the actions of the Union in the fields of justice and home affairs".


14 The idea of convening a special European Council on justice and home affairs was launched by Commission President Jacques Santer in a speech to the European Parliament on the Commission's annual legislative programme on 21 October 1998. The idea was taken up by the Spanish Prime Minister during the informal European Council at Pörtschach on 24 and 25 October and was supported by the Austrian Presidency and all Heads of State and Government. The Vienna European Council in December formally decided that the special European Council would be organised by the Finnish Presidency in October 1999.


15. In a joint letter of 18 March 1999, the German Chancellor, Gerhard Schröder, and the Finnish Prime Minister, Paavo Lipponen, expressed their view that the aims of bringing the Union closer to its citizens and developing the new "area of freedom, security and justice" were closely interrelated and that "significant political results" should be achieved at Tampere to meet citizens' expectations in this respect. Following this letter an exploratory tour of capitals by a group consisting of representatives of the German and Finnish Presidencies and officials of the Commission and the Council Secretariat was organised at the end of April and beginning of May 1999. The tour resulted in an agreement that rather than covering all areas of justice and home affairs the Tampere summit should focus on three inter-related issues: (1) asylum and immigration, (2) the fight against cross-border crime and (3) the establishment of a "European judicial area".

16. The tour of capitals also produced a list of possible issues to be discussed under each of these headings which reflected the particular interests and priorities of each of the Member States. In the area of asylum and immigration key issues brought up by several Member States included the establishment of common minimum standards in asylum matters, burden-sharing in the event of a mass influx of displaced persons and a lessening of immigration pressure through the use of EU external economic, development and foreign policy instruments. As regards the fight against cross-border crime several Member States came out in favour of a gradual harmonisation, or at least, approximation, of legislation on serious cross-border crime. Another idea, which found considerable support, was that of creating a unit (called "Eurojust") composed of national prosecutors or magistrates each responsible for initiating and directing investigations into cross-border criminal activities within their national territory. Initial suggestions on the establishment of the European judicial area have focused on improving citizens' access to justice in cases of cross-border litigation where existing rights of civil redress are often rendered ineffective in practice because of the difficulties and expense involved in litigating across borders (p 2).


17. The Finnish Presidency is determined to make a success of the Tampere European Council and has provided for an intense process of consultation and deliberation in the run-up to the summit in October. A key element of this process is to test Member States' ideas by means of thematic discussion papers in the various Council committees during July. The General Affairs Council and the informal Justice and Home Affairs Council in September will both consider the Tampere agenda. There will be a further tour of capitals at the end of September and beginning of October and a trial evaluation of the results at the Justice and Home Affairs Council and the General Affairs Council meetings in October a few days before the Tampere summit. The Finnish Presidency hopes, by then, to be in a position to establish a final agenda and list of proposals which will command consensus in the European Council (Q 142).

1   OJ C19 (23 January 1999) pp 1-15. Back

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