Select Committee on European Union Sixteenth Report


27 MARCH 2003

By the Select Committee appointed to consider European Union documents and other matters relating to the European Union.



CONV 614/03  Area of freedom, security and justice

        —Draft Article 31, Part One

        —Draft articles from Part Two


1.  In this, our third,[1] Report on the draft Treaty Articles now being discussed in the Convention on the Future of Europe, we[2] consider those articles which will replace Title IV TEC (Visas, Asylum, Immigration and Other Policies related to the Free Movement of Persons) and Title VI TEU (Provisions on Police and Judicial Cooperation in Criminal Matters, ie the Third Pillar). These provisions are brought together in Article 31 in Part One of the new Treaty under the new heading "Policy on police matters and crime".

2.  We qualified our earlier Reports by reference to the fact that the procedure adopted by the Praesidium, the Convention steering group, is to bring forward the text of the Treaty in stages. Consequently it is not possible to consider the full text of the draft Treaty. Article 31 was omitted from Title V (Implementation of Union Action) examined in our second Report. The reason was that it would contain special rules and the Praesidium decided that in order to make the overall position more comprehensible Article 31 should be presented along with the relevant chapters of Part Two of the Constitution. Article 31 has now been published along with 23 Articles from Part Two.

3.  These Articles would bring about a number of important changes. They would take forward common policies on immigration, border controls and asylum. They would strengthen the roles of Europol and Eurojust and enhance operational cooperation between police forces and other law enforcement agencies across Europe. The Commission would have a right of initiative in police and criminal law matters and the majority of measures would be adopted by co-decision (of the European Parliament and Council) and by qualified majority voting (QMV). The jurisdiction of the European Court of Justice would be significantly extended. Particular concern arises from the proposals to increase Union competence over criminal procedures and to create a European Public Prosecutor.

4.  The format of this Report follows that of our earlier Reports in this series. Each Article is followed by an Explanatory note[3] (the text of which has been prepared by the Convention Secretariat) and a Commentary added by the Committee.

5.  We make this Report to the House for information.


General comments

6.  It is proposed that there should now be one Title (in Part Two of the new Treaty) to be called "Area of freedom, security and justice". It would encompass, with some significant changes and additions, both the current Title IV TEC and Title VI TEU (Third Pillar—Police and Judicial Cooperation in Criminal Matters). Proposing one Title is noteworthy for two reasons. First, it demonstrates most clearly the collapsing of the Pillar structure. Since Maastricht a number of matters have been moved from the Third (Union) Pillar into the First (Community) Pillar. Notable examples are immigration, asylum and civil law cooperation policies. Second, it is a departure from the scheme of the Preliminary draft Constitutional Treaty (the "skeleton text") published in October.[4] That draft envisaged that two separate titles (or chapters) would remain, albeit with new names ("Visas, asylum and immigration and other policies related to the movement of persons" and "Policy on police matters, and against crime" under the general headings of "Internal market" and "Internal Security" respectively). The difference of approach may be simply explained by reference to the timing. The final report of Working Group X did not appear until December.

7.  The new Title contains nine general Articles followed by four separate chapters. With the exception of Articles 6 (Measures concerning public order and internal security), 7 (Administrative co-operation) and 9 (Judicial control) which derive from Articles 33 TEU and 64 (1) TEC, 66 TEC and 35 (5) respectively, the introductory Articles are new. The main sources of the four chapters are set out in the following table.

Table of Derivations
Chapter 1: Policies on border checks, asylum and immigration Article 10 Checks on persons at borders Articles 61(a) and 62 TEC
Article 11 Asylum Articles 61(a) and (b), 63(1) and (2) and 64(2) TEC
Article 12 Immigration Articles 61(a) and (b) and 63(3) and (4) TEC
Article 13 Principle of solidarity New Article
Chapter 2: Judicial cooperation in civil matters Article 14 Judicial cooperation in civil matters Articles 61(c) and 65 TEC
Chapter 3: Judicial cooperation in criminal matters Article 15 Judicial cooperation in criminal matters Articles 61(e) TEC and 29 and 31(1) TEU
Article 16 Criminal procedure New Article
Article 17 Substantive criminal law Articles 29 and 31(1)(e) TEU
Article 18 Crime prevention New Article, but reference to preventing crime in Article 61(e) TEC
Article 19 Eurojust Articles 29 and 31(2) TEU
Article 20 European Public Prosecutor's Office New Article
Chapter 4: Police cooperation Article 21 Cooperation with regard to internal security Article 30(1) TEU
Article 22 Europol Article 30(2) TEU
Article 23 Operations on the territory of another Member State Article 32 TEU

8.  The majority of the provisions in the new Title will, as the Working Group recommended, become subject to the so-called "Community method". This principally means that the Commission would have the sole right of initiative in respect of legislative proposals. This would be a major departure from the current position under which in some areas the Commission has no right of initiative. The 'legislative procedure'[5] (ie co-decision by the European Parliament and the Council) and majority voting would apply. There remain a number of provisions in this Title whose adoption will not be by co-decision and qualified majority voting QMV, as follows:

—Article 7: Administrative cooperation (QMV and consultation)

—Article 11(3): Asylum - sudden influx of refugees (QMV and consultation)

—Article 14(3): Judicial cooperation in civil law—family law (unanimity and consultation)

—Article 16: Criminal Procedure "other specific aspects" (unanimity and assent)

—Article 20: European Public Prosecutor's Office (unanimity and consultation)

—Article 21(3): Cooperation with regard to internal security—operational cooperation (unanimity and consultation)

—Article 23: Operations on the territory of another Member State (unanimity and consultation)


9.  The Praesidium document is silent of the special position of Denmark, Ireland and the UK in relation to matters the subject of this group of Treaty Articles.

10.  As a basis for the area of freedom, security and justice, and in particular to facilitate the removal of internal border controls, the Amsterdam Treaty incorporated into the framework of the EU the Schengen acquis.[6] Some of the acquis went into Title IV TEC, some into Title VI TEU. The Schengen arrangements incorporated into Title IV apply, as EC law, only to 12 Member States. Denmark is outside Title IV, but remains, as a party to Schengen, bound in international law. The UK and Ireland, by contrast, are not parties to Schengen but may, with the agreement of the 13 Schengen States, opt-in selectively.[7]

11.  In addition to the Protocol on Schengen, a separate Protocol to the TEU safeguards the position of the UK and Ireland confirming that the UK is entitled to exercise frontier controls (TEU Protocol No 3).

12.  Further Denmark, Ireland and the UK stand in a special position as regards Title IV TEC (Visas, asylum, immigration and other policies related to free movement of persons). The UK and Ireland can opt-in selectively to (non-Schengen) measures under Title IV (TEU Protocol No 4). Denmark cannot be selective but can opt-in to Title IV in toto (TEU Protocol No 5).

13.  What is to be the future of these Protocols when the new Constitutional Treaty replaces the TEU? Whether the new Treaty will signify the end of the UK's ability to opt out of, for example, immigration measures waits to be seen. When giving evidence to the Committee on 25 March Mr Peter Hain MP said that the Government did not want to see any change in the UK's position as contained in the current Protocols.

1   The text of the new Constitutional Treaty is appearing in stages. In our first Report, The Future of Europe: Constitutional Treaty-Draft Articles 1-16 (9th Report, Session 2002-03, HL Paper 61) we examined Titles I-III of the new Treaty; Definition and objectives of the Union, Union citizenship and fundamental rights and Union competences and actions. Our second Report, The Future of Europe: Constitutional Treaty-Draft Articles 24-33 (12th Report, Session 2002-03, HL Paper 71), dealt with Title V-Implementation of Union Action. We are following the order in which the Articles are presented to the Convention. Articles 17-23 will be dealt with when received. Back

2   See Appendix 1 for membership of the European Union Committee; and of Sub-Committee E (Law and Institutions) and Sub-Committee F (Social Affairs, Education and Home Affairs) which undertook the detailed scrutiny work. Back

3   The Convention document uses the term "Comments". Back

4   A copy of the skeleton text is reproduced in Appendix 2 to our Report The Future of Europe: Constitutional Treaty-Draft Articles 1-16 (9th Report Session 2002-03, HL Paper 61). Back

5   We commented on the inaptness of this term in our Report The Future of Europe: Constitutional Treaty-Draft Articles 24-33 (12th Report, Session 2002-03, HL Paper 71, at para 23). Back

6   Including the 1985 Schengen Agreement, the 1990 Schengen Convention and the decisions of the Executive Committee established by the Schengen agreements. See the Protocol No 2 TEU. The position is explained more fully in our Report Incorporating the Schengen Acquis into the European Union (31st Report, Session 1997-98, HL Paper 139). The UK's participation is set out in Council Decision 2000/365/EC of 29 May 2000. Back

7   The UK has sought to maintain its border controls and has so far elected to participate in Schengen only in respect of police and judicial co-operation, drugs and the Schengen Information System (SIS-a computerised database). Ireland has taken a similar approach. Back

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