Strategic guidelines for the EU's next Justice and Home Affairs programme: steady as she goes - European Union Committee Contents

Strategic guidelines for the EU's next Justice and Home Affairs programme: steady as she goes

Chapter 1: Introduction

1.  Over the past 15 years, the European Council, which defines the general political direction and priorities of the European Union,[1] has adopted a series of five-year programmes setting out future priorities in the fields of justice and home affairs (JHA). The current programme, known as the Stockholm Programme,[2] covers the period 2010-2014 and in the last year there have been discussions between various Member States, the EU institutions and other interested parties about its successor. We decided to conduct an inquiry into the outcomes and value of the Stockholm Programme, what lessons could be learnt from that programme, and what the shape and content of the next programme should be. Our aim in so doing was to make a contribution to that programme's development upstream.

Our inquiry

2.  This inquiry was conducted by the House of Lords European Union Sub-Committee on Home Affairs, Health and Education, with contributions from the Sub-Committee on Justice, Institutions and Consumer Protection on justice matters.

3.  We issued a call for evidence (set out in Appendix 3) in July 2013 and received 15 submissions. Between November 2013 and February 2014 we held 7 evidence sessions in the House of Lords. In January 2014, we visited Brussels and held 6 evidence sessions there. Our Chairman participated in a meeting of the Chairpersons of the JHA Committees of the national parliaments of EU Member States on 16-17 February 2014. The membership and interests of the Committee are set out in Appendix 1, and those who submitted evidence are listed in Appendix 2. We are grateful to all those witnesses who provided written and oral evidence: that evidence is available from our website.[3]

Justice and home affairs at EU level

4.  Justice and home affairs cover a wide range of policy areas including asylum, immigration, border controls, judicial cooperation in civil and criminal justice matters, and police cooperation. These matters affect the day-to-day lives of European citizens and are of considerable importance. The whole field is one of shared competence—that is to say, one where the Member States retain exclusive powers on some matters, such as counter-terrorism, but where the Treaty provides for the European Union to take legislative decisions on a limited number of issues.

5.  Prior to the entry into force of the Maastricht Treaty in 1993, cooperation in JHA matters was achieved exclusively by intergovernmental cooperation and the European institutions were on the whole not involved. That Treaty created a formal intergovernmental system for JHA cooperation, with a specific decision-making mechanism: measures adopted required unanimity in the Council of Ministers and the European Parliament was only granted a limited consultative role.[4] The European Court of Justice had no jurisdiction.[5]

6.  The Amsterdam Treaty, which entered into force in 1997, introduced the concept of developing an area of freedom, security and justice (AFSJ).[6] The aim was to facilitate the free movement of persons while ensuring safety and security through "appropriate measures" covering external border controls, asylum, immigration, and the prevention and combating of crime. The Treaty also changed visa policy, conditions for issuing residence permits to immigrants, asylum procedures and rules for judicial cooperation in civil matters from matters of intergovernmental cooperation to matters covered by the community method (see box 1 below). Police and judicial cooperation in criminal matters remained matters covered by the intergovernmental method.[7]


Community and intergovernmental methods prior to the Lisbon Treaty[8]
The Maastricht Treaty set out three groups of arrangements, commonly referred to as "the three pillars".

The community method, which applied to the first pillar of the European Union (that covered the supranational European Community), was based on a premise of integration and was characterised by the following key features:

·  Commission monopoly of the right of initiative;

·  widespread use of qualified majority voting in the Council;

·  an active role for the European Parliament (for example, producing opinions and proposals for amendments.);

·  uniform interpretation of Community law by the Court of Justice.

The intergovernmental method of co-operation used in the second and third pillars (that covered common foreign and security policy, and JHA) was based on a premise of intergovernmental cooperation, characterised by the following main features:

·  the Commission's right of initiative was shared with the Member States or confined to specific areas of activity;

·  the Council generally acted by unanimity;

·  the European Parliament had a purely consultative role;

·  the Court of Justice did not have mandatory jurisdiction.

7.  Following the entry into force of the Amsterdam Treaty in 1999, the European Council held a special meeting in Tampere to consider the development of the AFSJ. A number of key conclusions (known as the Tampere conclusions) were agreed summarising the need to develop:

·  common policies on asylum and immigration;

·  control of external borders;

·  integration of third country nationals lawfully resident;

·  a genuine area of justice;

·  a common effort to prevent and fight crime and criminal organisations;

·  integrity of authorities;

·  cooperation with partner countries and international organisations; and

·  a draft EU Charter of Fundamental Rights.[9]

8.  The Tampere conclusions were the first of a series of multi-annual five year programmes for JHA. In the five years that followed its adoption, the foundations were laid for a common asylum and immigration policy, for the harmonisation of border controls, and for closer police and judicial cooperation based on mutual trust and recognition.[10]

9.  The Nice Treaty, which came into force in 2003, provided for cooperation through the European Judicial Cooperation Unit (Eurojust) and set out fundamental rights.[11]

10.  In November 2004, the Hague JHA Programme was adopted to further strengthen the AFSJ. The programme was designed to build on the Tampere conclusions and to respond to "new challenges", such as the terrorist attacks on the United States in September 2001 and Madrid in March 2004. It drew upon input from the Commission and the European Parliament as well as Member States. The key objectives of that programme were:

·  to guarantee fundamental rights;

·  minimum procedural safeguards and access to justice;

·  to provide protection to persons in need in accordance with the Geneva Convention on Refugees and other international treaties;

·  to regulate migration flows and to control the external borders of the Union;

·  to fight organised cross-border crime and repress the threat of terrorism;

·  to realise the potential of Europol and Eurojust;

·  to carry further the mutual recognition of judicial decisions and certificates both in civil and in criminal matters;

·  to eliminate legal and judicial obstacles in litigation in civil and family matters with cross-border implications; and

·  development of a coherent external dimension of the Union policy of freedom, security and justice.

11.  The programme also highlighted the need for adequate and timely implementation and evaluation of all types of measures in the AFSJ, and a review of the implementation of the programme.[12]

12.  The Lisbon Treaty of 2009 moved the remaining aspects of JHA, that is to say police and judicial cooperation in criminal matters, into the community method. That meant that all AFSJ legislation, save for a few exceptions,[13] would be subject to the ordinary legislative procedure of qualified majority voting and co-decision between the European Parliament and the Council, and, following a transitional period which ends in December 2014, come within the jurisdiction of the Court of Justice of the European Union.[14]

13.  Shortly after the Lisbon Treaty entered into force in 2009, the Stockholm Programme was agreed as a successor to the Hague Programme. The programme was not, however, drafted with the provisions of that Treaty in mind as implementation of the Treaty and agreement of the programme occurred shortly after one another.[15] The programme was almost 40 pages long and covered a wide range of policy areas, making very specific recommendations. They fell within six broad priorities:

(1)  Promoting citizen's and fundamental rights;

(2)  A Europe of law and justice;

(3)  A Europe that protects;

(4)  Access to Europe in a globalised world;

(5)  A Europe of responsibility, solidarity and partnership in migration and asylum matters; and

(6)  The role of Europe in a globalised world—the external dimension of freedom, security and justice.

14.  The programme called for: a mid-term review by the Commission; better tools for evaluation of JHA policies; more attention to full and effective implementation, enforcement and evaluation of existing instruments; clear impact assessments and data to support any new legislation brought forward; and increased attention to coherence between policies.[16]

15.  The Council also agreed that the Commission should publish an Action Plan detailing how the various aspects of the programme would be implemented.[17] The Commission published a Communication entitled Delivering an area of freedom, security and justice for Europe's citizens: Action Plan Implementing the Stockholm Programme in April 2010. JHA ministers were critical of the Action Plan because they felt that some aspects went beyond what had been agreed in the Stockholm Programme, while other matters which had been agreed were omitted from the Action Plan. As a result, in their Conclusions the Council, rather than adopting the Action Plan, noted that there were inconsistencies between the two documents and urged the Commission only to take forward the matters that were in full conformity with the content of the Stockholm Programme.[18]

16.  The past 15 years have seen the challenges to all Member States from international crime increasing both in scope, for example cybercrime, and intensity, and they have been an intense period of legislation in the fields of JHA. Stefano Manservisi, Director-General, Directorate-General for Home Affairs, European Commission, characterised it as legislating to "catch up" with Treaty change and the development of the Union.[19] We consider the main outcomes during the term of the Stockholm Programme in detail in Chapter 2.

The next programme

17.  Both Commissioner Malmström (the Commissioner responsible for home affairs) and Vice-President Reding (the Commissioner responsible for justice) had questioned whether a detailed successor to the Stockholm Programme was necessary given the Commission's right of initiative in JHA matters now conferred by the EU Treaties.[20] Article 68 of the Treaty on the Functioning of the European Union (TFEU) is clear that "the European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice".[21] The European Council conclusions of June 2013 said:

    "The European Council will hold a discussion at its June 2014 meeting to define strategic guidelines for legislative and operational planning in the area of freedom, security and justice (pursuant to Article 68 TFEU). In preparation for that meeting, the incoming Presidencies are invited to begin a process of reflection within the Council. The Commission is invited to present appropriate contributions to this process."[22]

18.  Accordingly, the Commission has held two consultation exercises (one each for justice and home affairs) about what should succeed the Stockholm Programme, which both culminated in conferences of academics, practitioners, senior officials and Ministers.[23] The Commission published two Communications on the matter on 11 March 2014.[24] In parallel, Member States have discussed the shape and content of the next set of guidelines both informally and at JHA Council meetings. The discussions will continue in COREPER (the Permanent Representatives Committee) and at JHA Council meetings over the coming months, and it is probable that the European Parliament will express a view. The process is likely to culminate in the next set of guidelines being agreed at the June European Council (with the possibility of further activity under the Italian Presidency in the second half of 2014).[25]

19.  It is in this context, and with a view to contributing to these discussions, that we make our Report. While the AFSJ covers areas of shared competence and, since the coming into force of the Lisbon Treaty, legislation in this field is largely subject to the ordinary legislative procedure, it retains some distinctive features. In particular: the AFSJ concerns areas of law in relation to which the diversity of national legal systems and traditions must be respected; closely related areas, such as, national security are outside EU competence; and the Member States have a right of initiative in relation to criminal justice and policing measures. As this situation is unlikely to change, JHA require a distinctive approach, different from that for policy areas such as trade where the EU has exclusive powers. This is the first full application of Article 68 of the Treaty on the Functioning of the European Union which provides that the European Council shall set strategic guidelines for the AFSJ. As such, it is important that it is handled well as the next JHA programme is likely to set a precedent for future multi-annual JHA programmes.

Structure of the report

20.  In Chapter 2 we consider the impact of the Stockholm Programme. Chapter 3 sets out our findings on the next programme. Chapter 4 deals with the important issues of evaluation and implementation. Finally, Chapter 5 considers the work of the various EU agencies which operate in the AFSJ.

21.  We make this report to the House for debate.

1   Article 15, Treaty on the Functioning of the European Union (TFEU) Back

2   The programme was adopted under the Swedish Presidency in the second half of 2009. Back

3  Back

4   Peers, S. EU Justice and Home Affairs Law, 2011 Back

5   Except for intergovernmental measures dealing with civil cooperation. Back

6   Article 1(3), The Treaty of Amsterdam, 1997 Back

7   Ibid. Back

8   Based on the European Commission's glossary of terms available from: Back

9   European Council Conclusions of the European Council Meeting in Tampere, 15-16 October 1999: Towards a Union of Freedom, Security And Justice: The Tampere Milestones Back

10   COM (2009) 263, Justice, Freedom and Security in Europe since 2005: An evaluation of the Hague Programme and Action Plan Back

11   The Nice Treaty, 2001  Back

12   European Council, The Hague Programme: strengthening freedom, security and justice in the European Union, 2005 Back

13   For example, legislation on family law, matters with cross-border implications and for legislation creating a European Public Prosecutors Office. Back

14   TFEU Back

15   Q 123 Back

16   European Council, The Stockholm Programme-an open and secure Europe serving and protecting citizens, 2010 Back

17   Ibid. Back

18   The Bar Council of England and Wales, European Council, Conclusions of the JHA Council meeting in Luxembourg, 3-4 June 2010 Back

19   Q 103 Back

20   Statements made at an inter-parliamentary committee meeting regarding the Stockholm Programme on 20 June 2013 and at the Assises de la Justice conference on 22 November 2013. Back

21   TFEU Back

22   European Council, Conclusions of the European Council meeting in Brussels, 27-28 June 2013 Back

23   Q 106, Q 120 Back

24   COM (2014) 154, An open and secure Europe: making it happen, COM (2014) 144, The EU Justice Agenda for 2020-Strengthening Trust, Mobility and Growth within the Union Back

25   Q 112, Q 107 Back

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