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The gradual establishment of an area of freedom, security and justice

The gradual establishment of an area of freedom, security and justice

Outline of the Community (European Union) legislation about The gradual establishment of an area of freedom, security and justice

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The gradual establishment of an area of freedom, security and justice

For more than 20 years now the Member States have joined forces to combat international phenomena such as terrorism, drug trafficking or illegal immigration. By 1986, however, when freedom of movement for people was recognised as a key element of the internal market, it was clear that this type of informal cooperation between the member states’ governments was no longer adequate to combat the international spread of crime networks or satisfy the public’s need for security in Europe. It was therefore decided to incorporate cooperation on justice and home affairs into the Maastricht Treaty so as to make it a fully-fledged policy of the European Union.

An intergovernmental pillar has been grafted onto the Community pillar and legal instruments of a new kind have been created. Cooperation on these lines was set up following the entry into force of the Treaty on European Union in 1993 but has not been seen as very satisfactory in terms either of how it works or of the results it has produced. So the revision of the EU Treaty has brought in some major changes in the decision-making process.

To create an area for freedom, security and justice, the Treaty of Amsterdam will introduces a new title headed “Visas, asylum, immigration and other policies related to free movement of persons” into the Treaty establishing the European Community. Controls on the external borders, asylum, immigration and judicial cooperation on civil matters all now come under the first pillar and are governed by the Community method. The incorporation of these areas into the Community, however, will be a gradual process dictated by the speed at which the Council of the European Union takes the decisions, to be completed by the latest five years after the entry into force of the new treaty. Only police and judicial cooperation in criminal matters remains under the third pillar, to which the new treaty adds preventing and combating of racism and xenophobia.

These institutional developments bring in new types of decision taking, which should make it possible to adopt more – and more effective – measures, leading to closer cooperation between Member States.

HISTORICAL BACKGROUND

The beginnings of cooperation (1975-85)

From 1975 onwards intergovernmental cooperation was gradually established in the fields of immigration, the right of asylum and police and judicial cooperation. The first instance of this was the Trevi Group, in which the Ministers for Home Affairs met for the purpose of combating terrorism and coordinating police cooperation on terrorism in the Community. The Ministers in the Group discussed questions relating to law and order and terrorism, and various working parties and subparties were set up under its auspices. The European institutions were at the time excluded from this process, which was conducted on an intergovernmental basis.

From the Single Act to the Treaty of Maastricht (1986-92)

The Single European Act concluded in 1986 was a turning point in this process of cooperation, which up until that point had functioned in a far from transparent way as regards the public and the Community institutions. A new Article 8a defines the free movement of persons as one of the four main constituent elements of the single market and explicitly brings that field within the Community’s sphere of jurisdiction. The new working parties set up after the signing of the Single Act took account of this development and from that point on included observers from the Commission. In addition, the ad hoc working party on immigration, which has since 1986 consisted of the ministers responsible for immigration, and CELAD, the European Committee to Combat Drugs, set up their secretariats with the secretariat of the Council of the European Union. Other working parties were set up, such as the Mutual Assistance Group or GAM, which is responsible for customs matters. A Council consisting of the Member States’ Ministers of Justice used to hold regular meetings. From that time onwards it used to deal with judicial cooperation in criminal and civil matters and certain questions falling within the sphere of European political cooperation.

Despite the recommendations on free movement of persons in the Commission’s White Paper of 1985, justice and home affairs continued to be largely matters for intergovernmental cooperation. In 1988, for example, the intergovernmental coordinators’ group on the free movement of persons was instructed by the Rhodes European Council to propose measures for linking the free movement of persons and security together once controls at the internal borders had been abolished. In 1989 this group put forward a proposal for a work programme (the Palma document) advocating a more coordinated approach to the different aspects of cooperation on justice and home affairs. The fact was that the various working parties set up over the years were working separately and drafting their reports for ministers sitting in different combinations. What is more, the European Parliament and the national parliaments were unable to exercise any control over the measures taken in that context, owing to the very nature of the cooperation itself.

The instruments used were those appropriate to a traditional intergovernmental approach: on the one hand, conventions, and, on the other, the drawing up of resolutions, conclusions and recommendations. These acts, the classic instruments of international law, were adopted outside the Council of the European Union. They include the 1990 Dublin Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, and the London resolutions also relating to asylum.

Instruments of a more binding type were adopted by some other Member States during the 1980s. These were the 1985 SchengenAgreement and the 1990 Schengen implementing convention, which set up new operational structures to ensure cooperation between police forces and customs authorities (through the Schengen Information System, SIS). It then became clear that the far from open system of consultation groups needed to be incorporated into a comprehensive structure: not only to make sure that the measures adopted by the Member States in relation to justice and home affairs were more effective but also to coordinate the work of all these bodies and avoid duplication.

Institutionalising cooperation in the fields of justice and home affairs: Title VI of the Treaty on European Union (1992-98)

Title VI was partly modelled on this pre-existing intergovernmental cooperation system, which explains the charges levelled against it that there were too many working levels within the third pillar and that it was over-complicated and not transparent enough. The way the third pillar was structured, on the lines of the Common Foreign and Security Policy, gave the Community institutions only a small part to play and no real way of exercising any control over the Member States’ decisions:

  • the Court of Justicewas competent to interpret conventions only where there is a clause in the text (convention or other) expressly providing for this;
  • the European Parliament could be consulted by the Council, but most of the time it was only informed;
  • the European Commission’s right of initiative was limited to certain areas and was shared with the Member States;
  • the Council was often paralysed by the requirement to take every decision by unanimous vote.

The Treaty of Amsterdam has reshaped cooperation on justice and home affairs by setting up an area of freedom, security and justice. The aspirations are wider and more specific and the methods more effective and democratic, while the institutions have been given a more balanced role to play.

HOW TITLE IV OF THE EC TREATY WORKS

Title IV encompasses the following areas:

  • Free movement of persons
  • Checks at external borders
  • Asylum, immigration and protection for the rights of nationals of non-member countries
  • Judicial cooperation in criminal matters.

These are defined as questions of common interest and previously came under the rules laid down in Title VI of the EU Treaty (commonly known as the third pillar).

Establishing an area of freedom, security and justice in five years

The Treaty of Amsterdamhas transferred these areas to the EC Treaty, where the role of the institutions is very different from the role they used to play under Title VI.

The Council of the European Union will continue to play the main role over the next five years so that it can take a number of decisions in the areas referred to above. The object is to make it easier for European citizens and nationals of non-member countries to move freely, while at the same time building up effective cooperation between the different government departments concerned in order to combat international crime.

The overall institutional machinery

The Council is still the linchpin of the process but it is no longer the only actor involved.

Over the first five years after the new treaty has come into force, the Council will take decisions unanimously on proposals put forward by the Commission or a member state. It has to consult the European Parliament before taking any decision.

After that time, the Council will take decisions only on proposals from the Commission. The Commission, however, will have to consider any request by a member state for a proposal to be put before the Council. After consulting the European Parliament, the Council will have to decide by unanimous vote to apply the codecision procedure and qualified majority voting when adopting measures under Title IV and to modify the clauses relating to the Court of Justice of the European Communities.

Apart from its decision-making role, the Council’s role as a coordinator between the relevant government departments in the member states and between them and the European Commission has been consolidated. The many different levels of working party that currently exist have been abolished. All the working parties now stand on the same footing and report directly to Coreper (Committee of Permanent Representatives).

Some measures, however, come under a different institutional mechanism (Article 67).

The Court of Justice of the European Communities

The new Treaty gives the Court of Justice a larger role to play in the areas of justice and home affairs. Previously it had no powers in these areas and could not review the measures adopted by the Council. Only in the case of Conventions did the Court have the right to interpret their provisions and rule on any dispute over their implementation – and even this only applied if they contained a special clause to that effect.

In the new Title IV, which essentially concerns free movement of persons, asylum, immigration and judicial cooperation in civil matters, the Court of Justice now has jurisdiction in the following circumstances:

  • if a national court of final appeal requires a decision by the Court of Justice in order to be able to give its judgment, it may ask the Court to rule on a question concerning the interpretation of the title or on the validity and interpretation of acts by the Community institutions that are based on it;

similarly, the Council, the Commission, or a member state can ask the Court to rule on a question regarding the interpretation of the new title or of acts adopted on the basis of it.

The Court of Justice does not, however, have the right to rule on measures or decisions taken to abolish all checks on individuals (both EU citizens and non-EU nationals) when they cross the internal borders.

The Member States

The Member States retain their prerogatives, above all as regards the free movement of persons. They continue to have sole responsibility for ensuring law and order and safeguarding internal security. In this context, they may take foreign policy considerations into account.

In the event of an emergency, if there is a sudden influx of nationals of non-member countries into a Member State, temporary measures (for a maximum of six months) may be taken by the Council voting by qualified majority on a Commission proposal in the interests of the Member State concerned with a view to restricting the freedom of movement or entry of the nationals of the non-member country concerned.

The protocols

Protocol on the position of the United Kingdom and Ireland

These two countries are not taking part in measures under Title IV and are not bound by them. They do not, therefore, take part in votes in areas falling within the area of security, freedom and justice.

If, however, the United Kingdom or Ireland wishes to take part in the adoption and implementation of a proposed measure, they will have to inform the President of the Council within a period of three months starting from the submission to the Council of the proposal or initiative. They will also be entitled to agree to the measure at any time after its adoption by the Council.

Protocol on the application of certain aspects of Article 14 (ex Article 7a) of the EC Treaty to the United Kingdom and to Ireland

The United Kingdom and Ireland reserve the right to exercise controls at their frontiers on persons seeking to enter their territory, in particular citizens of states which are contracting parties to the Agreement on the European Economic Area or to any agreement by which the United Kingdom and/or Ireland is bound, and the right to decide whether or not to let them enter their territory. At the same time, the other member states may exercise controls on all persons coming from the United Kingdom or Ireland.

Ireland has expressed its wish to take part as far as possible in measures adopted under Title IV insofar as they allow the common travel area with the United Kingdom to be maintained. The common travel area is an area of freedom of movement between Ireland and the United Kingdom.

Protocol on the position of Denmark

Denmark is not taking part in measures under Title IV except those determining the non-member countries whose nationals must have a visa when crossing the external borders of the member states and measures introducing a uniform format for visas.

As far as building upon the Schengen acquis is concerned, Denmark will decide whether to implement any decision in its national law within six months after the Council has adopted it.

HOW TITLE VI OF THE EU TREATY WORKS

The object of Title VI (“Provisions on police and judicial cooperation in criminal matters”) is to prevent and combat the following:

  • racism and xenophobia;
  • terrorism;
  • trafficking in persons and offences against children;
  • drug trafficking;
  • arms trafficking;
  • corruption and fraud.

These objectives will be achieved through:

  • closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through Europol;
  • closer cooperation between judicial and other competent authorities of the Member States, both directly and through Europol;
  • approximation, where necessary, of rules on criminal matters in the Member States.

Clearly, then, the objectives of Title VI of the EU Treaty have been made more specific. Aware that crime extends beyond national borders, the Member States have recognised that the only effective way to fight the international networks that have formed is through closer cooperation.

The overall institutional machinery

The Council of the European Union remains the main actor in the decision-making process under Title VI. To achieve the objectives set out above, it can use the following instruments:

  • joint positions defining the approach of the Union to a particular matter;
  • framework decisions to approximate the laws and regulations of the member states. Like directives (the instruments used in the Community pillar), framework decisions are binding upon the member states as to the result to be achieved but leave the choice of form and methods to the national authorities;
  • decisions for any other purpose except approximating the laws and regulations of the member states. These decisions are binding and the Council, acting by a qualified majority, adopts the measures necessary to implement them at Union level;
  • conventions, which are adopted by the member states in accordance with their respective constitutional requirements. Unless they provide otherwise, conventions enter into force once they have been ratified by at least half of the member states that adopt them.

A coordinating committeeconsisting of senior officials draws up opinions for the Council and helps prepare the ground for its deliberations.

The Commission is fully involved in the discussions in the areas covered by Title VI and its power of initiative has been extended to cover all fields.

The Member States

The new Treaty does not affect the Member States’ exercise of their responsibilities for maintaining law and order and safeguarding internal security.

The Member States have virtually sole responsibility for cooperation in the fields covered by Title VI. To coordinate their action, they inform and consult one another and establish collaboration between their respective government departments.

They uphold common positions adopted under this heading in the international organisations and conferences that they take part in.

The Member States may establish closer cooperation using the EU institutions, procedures and mechanisms. However, this must not encroach on the powers and objectives of the European Community and must be aimed at enabling the Union to develop more rapidly into an area of freedom, security and justice (as the Schengen system succeeded in doing earlier). The Council gives its authorisation by a qualified majority (a vote in favour by at least ten members). If such closer cooperation creates problems for a particular Member State for reasons of national policy, the Council may ask for the matter to be referred to the European Council.

The European Parliament

Before adopting a framework decision or decision or establishing a convention, the Council has to consult the European Parliament.

The Presidency and the Commission will regularly inform the European Parliament of discussions in the areas covered by Title VI.

The European Parliament may ask questions of the Council or make recommendations to it. Each year it will hold a debate on the progress made in the areas of police and judicial cooperation in criminal matters.

The Court of Justice

The new Treaty recognises that the Court of Justice has jurisdiction to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions and on the validity and interpretation of the measures implementing them.

Regarding preliminary rulings, the Member States are required to make individual declarations accepting the jurisdiction of the Court of Justice and stating which national court or tribunal is empowered to request the Court of Justice for a ruling. Depending on the Member State’s choice, either the national court of final appeal or any court in the country may then ask the Court of Justice for a ruling on any question regarding the interpretation or validity of one of the above acts, if it considers such a ruling necessary to enable it to give judgment.

The Protocols

Protocol integrating the Schengen acquis into the framework of the European Union

The Member States that have signed up to the Schengen Agreements (all the Member States apart from the United Kingdom and Ireland) now conduct their cooperation on abolishing internal borders under the institutional and legal framework of the European Union. The Council has taken the place of the Executive Committee established by the Schengen Agreements.

Ireland and the United Kingdom may take part in some or all of the arrangements under the Schengen acquis after a unanimous vote in the Council by the thirteen participating Member States plus the representative of the Government of the State concerned.

Iceland and Norway are associated with the implementation of the Schengen acquis and its further development.

Protocol annexed to the Treaty establishing the European Community on asylum for nations of the Member States of the European Union

Since all the Member States of the European Union already respect human rights and fundamental freedoms, an application for asylum by a national of a Member State may be taken into consideration only in the following cases:

  • if the Member State of which the applicant is a national takes measures derogating from its obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms;
  • if the Council has determined that there has been a serious violation of human rights in the country of the applicant;
  • if a Member State should so decide unilaterally (Belgium has undertaken to give individual consideration to any application for asylum in order to comply with its earlier international obligations: the 1951 Geneva Convention and the 1967 New York Protocol).

CROSSING THE INTERNAL AND EXTERNAL BORDERS

The Council of the European Union, within a period of five years from the entry into force of the Treaty, must adopt the measures necessary to attain the objectives set by the Treaty of Amsterdam.

Checks on persons at the internal borders of the European Union

All checks on persons, whether citizens of the Union or nationals of non-member countries, at the internal borders of the Union are to end.

In contrast to the other areas covered by Title IV, the Court of Justice does not have jurisdiction to pronounce on the validity and implementation of measures in this area.

Crossing the external borders of the European Union

The Council lays down the standards and procedures to be followed by Member States in carrying out checks on persons at the external borders of the European Union.

Common rules on visas for intended stays of up to three months include the following:

  • a list of non-member countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement;
  • the procedures and conditions for issuing visas by Member States;
  • a uniform format for visas (Member States will issue the same format of visa to nationals of non-member countries);
  • rules on a uniform visa (the issuing of visas by the Member States is governed by common rules).

The general procedure for decisions under Title IV requires measures under the second and fourth points above to be taken by the Council acting unanimously. Within five years after the new Treaty has come into force, such measures will have to be taken by codecision with the European Parliament.

By way of an exception to the general procedure applied under this Title, measures under the first and third points above are decided by the Council by a qualified majority, acting on a proposal from the Commission after consulting the European Parliament.

Free movement of nationals of non-member countries

Measures will have to be adopted setting out the conditions under which nationals of non-member countries will have the freedom to travel within the territory of the Member States during a period of no more than three months.

Protocol on external relations of the Member States with regard to the crossing of external borders

The Member States retain the right to conclude agreements with non-member countries as long as they do not conflict with Community law and other relevant international agreements.

ASYLUM AND IMMIGRATION POLICIES

Within five years after the Treaty of Amsterdam has come into force, the Council has to adopt measures in various areas relating to asylum and immigration. This time limit does not, however, apply to measures on ensuring a balance between Member States in accommodating refugees and displaced persons, on the conditions of entry and residence for immigrants, and on the rights of nationals of non-member countries.

Asylum policy

International rules on asylum were laid down by the Geneva Convention of 1951 and the New York Protocol of 1967 on the status of refugees. In addition, there will be consultations with the United Nations High Commission for Refugees and other relevant international organisations on questions of asylum policy. Against this background, the Council takes decisions to determine:

  • the criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a non-member country in one of the Member States;
  • minimum standards on the reception of asylum-seekers in the Member States;
  • minimum standards with respect to the qualification of nationals of non-member countries as refugees;
  • minimum standards on procedures in Member States for granting or withdrawing refugee status.

Other measures on refugees and displaced persons that also have to be adopted are:

  • minimum standards for giving temporary protection to displaced persons from non-member countries who cannot return to their country of origin and for persons who otherwise need international protection;
  • promoting a balance of efforts between Member States in receiving and bearing the consequences of receiving refugees and displaced persons (the problem of refugees from former Yugoslavia in Germany, in particular, has shown how useful such a measure would be if such a situation were to arise again).

In the event of one or more Member States being confronted with an emergency situation characterised by a sudden inflow of nationals of non-member countries, the Council may, acting by qualified majority on a proposal from the Commission, adopt provisional measures of a duration not exceeding six months.

Immigration policy

For this policy, measures will be adopted in the following areas:

  • conditions of entry and residence, and standards on procedures for the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion;
  • illegal immigration and illegal residence, including repatriation of illegal residents.

Measures will also be adopted defining the rights and conditions under which nationals of non-member countries who are legally resident in a Member State may reside in another Member State.

The Member States may maintain or introduce national provisions under their immigration policies as long as they are compatible with the Treaty of Amsterdam and with international agreements.

JUDICIAL COOPERATION IN CIVIL MATTERS

Since judicial cooperation in civil matters has cross-border implications, measures in this area are adopted under the arrangements of Title IV of the EC Treaty. The aims are as follows:

  • assisting other Member States in understanding judicial and extra-judicial acts adopted in a particular Member State; improving and simplifying cooperation in the taking of evidence and the recognition and enforcement of decisions in civil and commercial cases, including decisions in extra-judicial cases;
  • promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;
  • eliminating obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

JUDICIAL COOPERATION IN CRIMINAL MATTERS

The goals set for the development of judicial cooperation in criminal matters are:

  • facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States in relation to proceedings and the enforcement of decisions;
  • facilitating extradition between Member States;
  • ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
  • preventing conflicts of jurisdiction between Member States;
  • progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and penalties in the fields of organised crime, terrorism and illicit drug trafficking.

The objectives remain general and there is no specific timetable. Nevertheless, with a subject as complex as this, the fact that there is now a list of targets to be achieved represents a major first step in judicial cooperation.

POLICE COOPERATION

Police cooperation is reflected in joint operations agreed by the Council of the European Union and through Europol.

Common action

Common action includes:

  • operational cooperation between the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
  • the collection, storage, processing, analysis and exchange of relevant information, including information on suspicious financial transactions;
  • cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
  • the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.

This list is not exhaustive.

The European Police Office (Europol)

The Council is also required to promote cooperation through Europol and, within five years after the new Treaty has come into force, to adopt measures to enable Europol:

  • to facilitate, support and coordinate specific investigative operations by the competent authorities of the Member States;
  • to ask the competent authorities of the Member States to conduct their investigations and to develop specific expertise which may be put at the disposal of the Member States to assist them in investigating cases of organised crime;
  • to work in close cooperation between prosecuting/investigating officials specialising in the fight against organised crime.

Lastly, the Council is to establish a research, documentation and statistical network on cross-border crime.

Operations carried out in the area of police cooperation (including Europol activities) are subject to appropriate jurisdictional control by the competent authorities under the rules applying in each member state.

INCORPORATING THE SCHENGEN AREA INTO THE EUROPEAN UNION

The abolition of border checks within what has been described as the Schengen area became possible because of an initiative by Germany, France and the Benelux countries in 1985. The Schengen Convention of 1990 laid down common rules for visas, the right of asylum, checks at the external borders and cooperation between police forces and customs authorities to allow freedom of movement for individuals within the territories of the signatory countries without disturbing law and order. A reporting system has been set up for the exchange of data about the identity of individuals. Member States of the European Union (apart from the United Kingdom and Ireland), plus Norway and Iceland, have joined this intergovernmental initiative.

Protocol integrating the Schengen acquis into the framework of the European Union

The Member States that are signatories to the Schengen Agreements now conduct “closer cooperation” on the abolition of internal frontiers within the institutional and legal framework of the European Union. The Council of the European Union has taken the place of the Executive Committee established by the Schengen Agreements. The common rules referred to above have been incorporated either into Title IV of the EC Treaty or into Title VI of the EU Treaty. Any new proposal in the areas of visas, right of asylum, checks at the external borders and cooperation between police forces and customs authorities will rely on one of these new bases.

The arrangements will help to further the goal of free movement for persons enshrined in the Single European Act in 1986. At the same time they guarantee democratic control and give citizens channels for appealing to the courts if their rights are called into question (the Court of Justice and/or national courts, depending on the area concerned).

Ireland and the United Kingdom may take part in some or all of the provisions of the Schengen acquis after a unanimous vote in the Council by the thirteen states that are parties to the Agreements and the representative of the Government of the State concerned.

Iceland and Norway are associated with the implementation of the Schengen acquis and its further development.

The Schengen acquis

The following acts are described as the Schengen acquis:

  • The Agreement signed in Schengen on 14 June 1985 between the Benelux countries, Germany and France on the gradual abolition of checks at their common borders.
  • The Convention signed in Schengen on 19 June 1990 between Belgium, Germany, France, Luxembourg and the Netherlands implementing the Agreement of 14 June 1985, with related Final Act and common declarations.
  • The Accession Protocols and Agreements with Italy (signed on 27 November 1990), Spain and Portugal (signed on 25 June 1991), Greece (signed on 6 November 1992), Austria (signed on 28 April 1959) and Denmark, Finland and Sweden (signed on 19 December 1996), with related Final Acts and declarations.
  • Decisions and declarations adopted by the Executive Committee established by the 1990 Implementation Convention, as well as acts adopted for the implementation of the Convention by the organs upon which the Executive Committee has conferred decision-making powers.

THE RENUMBERING OF THE TREATIES

The entry into force of the Treaty of Amsterdam involves a general renumbering of the titles and articles of the various treaties.

Articles K.1 to K.14 of Title VI of the EU Treaty have been renumbered 29 to 42.

Fundamental rights and non-discrimination.

Fundamental rights and non-discrimination.

Outline of the Community (European Union) legislation about Fundamental rights and non-discrimination.

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > Building europe through the treaties > The Amsterdam treaty: a comprehensive guide

Fundamental rights and non-discrimination.

The founding Treaties contained no specific provisions on fundamental rights. The credit for gradually developing a system of guarantees for fundamental rights throughout the European Union has to go to the Court of Justice.

The rulings given by the Court have been essentially based on:

  • Article 220 (ex Article 164) of the EC Treaty establishing the European Community, which requires the Court to ensure that the law is observed in the interpretation and application of the Treaty;
  • the political dimension of the Community, which is grounded in a European model of society, including the protection of fundamental rights recognised by all Member States.

By bringing fundamental rights to the fore, those who drafted the Treaty of Amsterdam were endeavouring to give formal recognition to human rights. The provisions of the new Treaty include the following:

  • Article 6 (ex Article F) of the EU Treaty has been amended so as to reaffirm the principle of respect for human rights and fundamental freedoms;
  • a procedure is laid down for dealing with cases where a Member State has committed a breach of the principles on which the Union is based;
  • more effective action is to be taken to combat not only discrimination based on nationality but also discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation;
  • new provisions on equal treatment for men and women are inserted in the Treaty establishing the European Community;
  • individuals are afforded greater protection with regard to the processing and free movement of personal data;
  • the Final Act was accompanied by declarations on the abolition of the death penalty, respect for the status of churches and philosophical or non-confessional organisations, and on the needs of persons with a disability.

BACKGROUND

The place given to fundamental rights in the Community Treaties has changed considerably since the European venture was first launched. At the outset, fundamental rights were not a central concern of those who drafted the Paris and Rome Treaties, which reflect a sectoral and functionalist approach. The Treaty of Paris, which established the European Coal and Steel Community (ECSC), is concerned solely with the coal and steel industries. This sectoral approach gained strength after the failure, in 1954, of the European Defence Community (EDC) and the concomitant moves towards political union. It thus became a feature of the Rome Treaties establishing the European Atomic Energy Community (Euratom) and the European Economic Community (EEC). Although the EEC Treaty was wider in scope than the other two, all three Treaties covered well-defined economic spheres.

One consequence of this sectoral approach was to set the founding Treaties apart from any basic law of a constitutional nature which incorporated a solemn declaration on fundamental rights. The Treaties in question were not suited to the inclusion of such a preamble, particularly since the Council of Europe’s European Convention on Human Rights (ECHR), signed in 1950, already provided an advanced model for the protection of human rights in Europe.

The situation changed rapidly as the Court of Justice, in the judgments it handed down, began to monitor the respect shown for fundamental rights by the Community institutions and the Member States whenever they took action within the areas covered by Community law. The Court recognised, for example, the right to property and the freedom to engage in economic activity, which are essential to the smooth operation of the internal market. The Court held that fundamental rights ranked as general principles of Community law and that they were based on two:

  • the constitutional traditions of the Member States;
  • the international Treaties to which the Member States belonged (and the ECHR in particular).

In 1977 the European Parliament, the Commission and the Council signed a Joint Declaration in which they undertook to continue respecting the fundamental rights arising from the two sources identified by the Court. In 1986 a further step was taken when the preamble to the Single European Act included a reference to the promotion of democracy on the basis of fundamental rights.

The EU Treaty states that “[t]he Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law” (Article 6(2), ex Article F.2).

At the same time, the idea that the Community as such should accede to the ECHR had begun to circulate. The Council decided to ask the Court’s opinion on whether membership of the Convention would be compatible with the Treaties. In its opinion of 28 March 1996 the Court held that, as Community law stood at that time, the Community was not competent to accede to the Convention.

As European integration has progressed, the European Union has gradually widened its field of action, reflecting the determination of the Member States to act as one in areas which until now have been a strictly national preserve (e.g. internal security or the fight against racism and xenophobia). In view of these changes, which necessarily go beyond the sectoral context of the Community’s early days and impinge on the daily life of European citizens, there is a need for clear legal texts which proclaim respect for fundamental rights as a basic principle of the European Union. The Treaty of Amsterdam meets this need.

PRINCIPLES

The Treaty of Amsterdam clarifies Article 6 (ex Article F) of the Treaty on European Union by stating unequivocally that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

It also amends the preamble to the EU Treaty, confirming the Member States’ attachment to fundamental social rights as defined in the European Social Charter of 1961 and the Community Charter of the Fundamental Social Rights of Workers of 1989.

Before the Treaty of Amsterdam entered into force, Article F.2 of the EU Treaty stressed respect for the rights guaranteed by the ECHR and those resulting from the constitutional traditions common to the member states. However, under former Article L (now renumbered Article 46) the powers of the Court of Justice did not extend to Article F, so limiting its impact. Since ensuring respect for the law in the interpretation and application of the Treaty is the Court’s task, the scope of fundamental rights was correspondingly reduced.

By amending Article 46, the Treaty of Amsterdam ensures that Article 6(2) will be applied. The Court now has the power to decide whether the institutions have failed to respect fundamental rights.

BREACH BY A MEMBER STATE OF THE PRINCIPLES ON WHICH THE UNION IS BASED

The Treaty of Amsterdam proclaims that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. At the same time, the new Treaty acknowledges that these principles may be infringed by a Member State and lays down the procedure which the Union should follow in dealing with the Member State concerned.

Establishment of the existence of a breach

On a proposal from the Commission or one third of the member states, the Council – in the shape of the heads of state or government – may determine the existence of a breach by a Member State. The breach must be “serious and persistent”. The European Parliament has to give its assent by a majority of its members and a two-thirds majority of the votes cast. The government of the Member State in question is first invited to submit its observations.

The Council’s decision establishing a breach will be considered unanimous even where a Member State abstains.

Suspension of the Member State concerned

Once a serious and persistent breach has been established, the Council may (but need not necessarily) suspend some of the Member State’s rights under the Treaty. However, the country remains bound by its obligations. The suspension of rights might, for instance, involve withdrawing the Member State’s voting rights in the Council.

At this second stage, the Council acts by a qualified majority, disregarding the votes of the Member State concerned.

Variation or revocation of the suspension

If there is a change in the situation that led to a Member State’s suspension, the Council can decide to vary or revoke the measures taken.

When taking such a decision, the Council acts by a qualified majority, disregarding the votes of the Member State concerned.

THE FIGHT AGAINST DISCRIMINATION

Article 12 (ex Article 6) of the EC Treaty provides that any discrimination on the grounds of nationality is prohibited. At the same time, Article 141 (ex Article 119) lays down the principle of non-discrimination between men and women, though only as far as equal pay is concerned.

The Treaty of Amsterdam restates the principle of non-discrimination in stronger terms, adding two new provisions to the EC Treaty.

The new Article 13

This Article complements Article 12, which prohibits discrimination on grounds of nationality. The new Article enables the Council to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

When the Council acts on the basis of Article 13, it does so unanimously on a proposal from the Commission and after consulting the European Parliament.

Declaration regarding persons with a disability

The new Article 13 provides for measures to combat discrimination based on disability. The Intergovernmental Conference that drew up the Treaty of Amsterdam sought to offer an even stronger guarantee by including a declaration in the Final Act, stating that the Community institutions must take account of the needs of persons with a disability when adopting measures to approximate Member States’ legislation..

EQUALITY BETWEEN MEN AND WOMEN

Article 2 of the Treaty provides that it will be the Community’s task to promote the harmonious, balanced and sustainable development of economic activities, environmentally-friendly growth, a high degree of convergence of economic performance, a high level of employment and social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity among Member States. Article 3 lists the various measures which the Community should take to carry out the tasks specified in Article 2.

The Treaty of Amsterdam extends these two Articles to include equality between men and women, which previously figured only in Article 141 (ex Article 119) of the EC Treaty (more restricted in scope since it relates only to equal pay). The two additions made are as follows:

Amendment of Article 2

The list of tasks facing the Commission will include the promotion of equality between men and women.

Amendment of Article 3

A new paragraph has been added, reading as follows:

“In all the other activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.”

PROCESSING OF PERSONAL DATA

The main Community measure in this area is the 1995 Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data. In the absence of a specific legal basis, this Directive was adopted under Article 95 (ex Article 100a) of the EC Treaty, which concerns the approximation of legislation relating to the single market.

The free movement of persons necessarily entails the establishment of information systems on a European scale. In view of these changes, a new article has been inserted in the EC Treaty, making the rules on the protection of individuals applicable to the Community institutions themselves.

The new Article 286

This Article will consist of two paragraphs which will provide respectively that:

  • from 1 January 1999, Community acts on the protection of individuals with regard to the processing of personal data and the free movement of such data apply to the Community institutions and bodies;

before 1 January 1999, the Council is to establish an independent supervisory body responsible for monitoring the application of those Community acts to Community institutions and bodies.

Area of freedom, security and justice

Area of freedom, security and justice

Outline of the Community (European Union) legislation about Area of freedom, security and justice

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > Building europe through the treaties > The Lisbon Treaty: a comprehensive guide

Area of freedom, security and justice

The Treaty of Lisbon intends to reinforce the establishment of a European common area within which persons move freely and benefit from effective legal protection. The creation of such an area has implications for areas in which European citizens have high expectations, such as immigration and the fight against organised crime and terrorism. These issues have a significant cross-border dimension and therefore require effective cooperation at European level.

The Treaty of Lisbon divides the themes related to the area of freedom, security and justice into four fields:

  • policies related to border control, asylum and immigration;
  • judicial cooperation in civil matters;
  • judicial cooperation in criminal matters;
  • police cooperation.

Matters relating to criminal judicial cooperation and police cooperation were previously covered by the 3rd pillar of the European Union (EU), governed by intergovernmental cooperation. Under the framework of the 3rd pillar, European institutions did not have any competences and could therefore not adopt regulations or directives. The Treaty of Lisbon puts an end to this distinction and henceforth enables the EU to intervene in all matters related to the area of freedom, security and justice.

BORDER CONTROL, ASYLUM AND IMMIGRATION

The Treaty of Lisbon attributes new competences to the European institutions, which can henceforth adopt measures with a view to:

  • establishing common management of the EU’s external borders; in particular through the strengthening of the European Agency for the Management of Operational Cooperation at the External Borders, known as Frontex;
  • creating a common European asylum system; such a system will be based on a uniform European status and common procedures for the granting and withdrawing of asylum;
  • establishing rules, conditions and rights in relation to legal immigration.

JUDICIAL COOPERATION IN CIVIL MATTERS

The Treaty of Lisbon authorises the European institutions to adopt new measures concerning:

  • the implementation of the principle of mutual recognition: each judicial system must recognise decisions adopted by the judicial systems of the other Member States as valid and applicable;
  • effective access to justice;
  • the development of alternative methods of dispute settlement;
  • the training of the judiciary and judicial staff.

JUDICIAL COOPERATION IN CRIMINAL MATTERS

With the abolition of the 3rd pillar of the EU, the whole of criminal judicial cooperation becomes a field in which the European institutions may legislate.

Specifically, the European institutions may henceforth establish minimum rules concerning the definition and sanctioning of the most serious criminal offences. In addition, the EU may also intervene in the definition of common rules concerning the functioning of criminal procedure, for example with regard to the admissibility of evidence or the rights of individuals.

Furthermore, the Treaty of Lisbon intends to strengthen the role of Eurojust in the EU. Eurojust’s mission is to help coordinate investigations and prosecutions between the competent authorities of Member States. Currently, Eurojust only has the power to make proposals: it can request national authorities to initiate investigations or prosecutions. Henceforth, the Treaty of Lisbon offers the European institutions the option of extending the missions and powers of Eurojust with the ordinary legislative procedure.

Moreover, the Treaty of Lisbon considers the possible creation of an actual European Public Prosecutor’s Office from Eurojust. Such an office would have significant powers as it could investigate, prosecute and bring to judgment the perpetrators of crimes. In addition, the European Public Prosecutor’s Office would itself be capable of exercising the functions of prosecutor in the competent courts of Member States.

Nevertheless, the Treaty of Lisbon does not yet establish the European public prosecutor’s office, but merely authorises the Council, acting unanimously, to adopt a regulation in this regard. If the Council does not reach unanimity, then nine Member States, at the least, will have the option of establishing a European public prosecutor’s office between them under the framework of enhanced cooperation.

POLICE COOPERATION

As with criminal judicial cooperation, police cooperation benefits from the abolition of the 3rd pillar of the EU. Henceforth, the European institutions will be capable of adopting regulations and directives in this field.

The ordinary legislative procedure is thereby extended to all non-operational aspects of police cooperation. In contrast, operational cooperation will be determined through a special legislative procedure requiring Council unanimity. However, the Treaty of Lisbon also provides for the option of establishing enhanced cooperation if unanimity is not reached by the Council.

Furthermore, the Treaty of Lisbon provides for the gradual strengthening of the European Police Office (Europol). As with Eurojust, the Treaty of Lisbon henceforth authorises the Council and the Parliament to develop the missions and powers of Europol under the framework of the ordinary legislative procedure. Currently, the role of Europol is limited to facilitating cooperation between the authorities of Member States. The Treaty of Lisbon specifies that new tasks could also include the coordination, organisation and implementation of operational actions.

EXEMPTIONS

The United Kingdom, Ireland and Denmark benefit from special arrangements, which include all the measures adopted under the framework of the area of freedom, security and justice. These three countries have the option of deciding not to participate in the legislative procedures in this field. They will, therefore, not be bound by the adopted measures.

In addition, two types of derogating clause are applied to the United Kingdom, Ireland and Denmark:

  • an “opt-in” clause which enables each of them to participate, on a case by case basis, in the adoption procedure for a measure or the application of a measure already adopted. They will then be bound by this measure in the same way as other Member States;
  • an “opt-out” clause enabling them not to apply a measure at any time.

The external dimension of the area of freedom, security and justice

The external dimension of the area of freedom, security and justice

Outline of the Community (European Union) legislation about The external dimension of the area of freedom, security and justice

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against trafficking in human beings

The external dimension of the area of freedom, security and justice

Document or Iniciative

Commission Communication: A strategy on the external dimension of the area of freedom, security and justice [COM(2005) 491 final – Not published in the Official Journal].

Summary

This Communication emphasises the way in which the external aspects of justice and home affairs at global level contribute to creating an area of freedom, security and justice within the European Union (EU). For example, promoting the rule of law outside the EU through cooperation is essential and contributes to sustainable development. Moreover, societies founded on such values as good governance and democracy more effectively resist external threats which can also affect international security.

Facing a range of challenges

The area of freedom, security and justice must face up to a whole range of challenges which originate outside the EU as well as within it, namely:

  • terrorist attacks such as those of 11 September 2001, 11 March 2004 and 7 July 2005;
  • the growth of organised crime;
  • illegal immigration;
  • the failure of institutions, the judiciary and law enforcement agencies;
  • guaranteeing legal certainty and predictability for cross-border trade in a globalised economy.

Reinforcing the justice, freedom and security aspects of external relations

Although the instruments for the external aspects of EU freedom, security and justice policy already exist, the European Council of 16 and 17 June stated that for the first time a strategy needed to be adopted on the external dimension of the area of freedom, security and justice. This strategy must form an integral part of the EU’s external relations policy, but the justice, freedom and security aspects must be reinforced.

The Communication stresses the need to enhance international cooperation. Free movement within the EU, more open borders and increased global integration have added a new dimension to international cooperation. Efficient border management is necessary to fight threats such as terrorism and organised crime, and it also contributes to good relations with neighbouring States. For instance, cooperation with the Turkish authorities has led to major seizures of drugs within the EU.

The Communication also recommends fostering the rule of law through cooperation in order to guarantee security both inside and outside the EU. The Commission wishes to make the area of security, freedom and justice in the EU a source of inspiration for other countries. The EU’s experience and success in issues such as border management and fighting organised crime are a useful point of reference for other countries facing similar challenges.

Regional cooperation must be encouraged because cross-border problems such as migration and border management are often most effectively solved through concerted regional action. The Commission supports multilateral approaches in international organisations with a view to enhancing its role in those organisations and promoting the development of new international instruments.

Guidance for policy towards non-EU countries: geographical priorities and objectives

The Communication also sets out the principles that must guide policy towards non-EU countries; these are:

  • establishing geographical priorities within policies on enlargement, development and external relations in accordance with the EU’s special relations with certain regions and non-EU countries;
  • appropriate strategies for arriving at tailored responses to the specific situations of individual countries and regions;
  • flexibility of programming to allow flexibility regarding priorities;
  • “inter-pillar” coordination: external action in the fields of justice, freedom and security often falls under different areas of competence of the Community, the CFSP or police and judicial cooperation, and this means that close coordination is needed between the Council and the Commission to guarantee coherence in the EU’s external activities;
  • partnership with non-EU countries in enlargement, external relations and development policies in the fields of justice, freedom and security;
  • relevance of external action, i.e. establishing a link between internal and external activities concerning the area of freedom, security and justice;
  • added value through regular exchange of information between the Commission and the Member States on the activities conducted in non-EU countries;
  • benchmarking: all actions must include evaluation mechanisms to assess progress made in non-EU countries and the relevance of the action for its objectives.

The main principles of a strategy covering the external aspects of policy on justice, freedom and security are already in place. Thus the EU has established a partnership on security with the United States, cooperation with the western Balkans, a strategic partnership with Russia and cooperation with Ukraine to secure stability and support the reform process and is contributing to the progress of good governance and the rule of law in the Mediterranean countries. The Commission lists a number of political priorities derived from the Hague Programme and its Action Plan, which provide the general basis for relations with non-EU countries. These include human rights, institution building and good governance, and enhancing non-EU countries’ capacity to manage migration and combat terrorism and organised crime.

Implementing the strategy

The EU has a broad range of instruments at its disposal for tailoring its external cooperation to the situation of each country. These include:

  • bilateral agreements (e.g. on mutual legal assistance and extradition and on the issue of visas);
  • the enlargement process, which includes justice, freedom and security priorities;
  • EU neighbourhood policy (PEV) and the action plan;
  • the external aid programmes (CARDS, TACIS, MEDA);
  • regional cooperation such as the Asia-Europe meetings (ASEM);
  • individual arrangements such as those with the United States, with justice, freedom and security issues covered by the New Transatlantic Agenda, inter alia.

Furthermore, Community bodies such as Europol and Eurojust are establishing agreements and methods for working with non-EU countries. Development policy contributes in the long term to addressing justice, freedom and security concerns. Lastly, the European Communities and its Member States are key players in international organisations such as the Council of Europe which provide a basis for promoting common values and priorities.

To facilitate implementation of this strategy, the Commission sets priorities and defines the appropriate means of action to be taken within the scope of its powers and responsibilities, and regularly monitors their implementation. The Council reviews progress and priorities.

The effectiveness and coherence of the strategy must be improved through:

  • coordination between geographical Council working groups and groups dealing with JLS matters. Coreper (Committee of Permanent Representatives) has an important role to play in this respect;
  • coherence of the EU’s external actions;
  • rapid reaction to sudden needs or emerging threats;
  • an enhanced role for the EU in international organisations;
  • regional cooperation on justice, freedom and security.

Commission staff working paper – Progress report on the implementation of the Strategy for the External Dimension of JHA: Global Freedom, Security and Justice [SEC(2006) 1498 final – Not published in the Official Journal].

The Commission takes stock of progress in the external dimension of freedom, security and justice. It notes that relations with non-member countries have evolved and that progress has been made on a variety of issues (migration, protection of fundamental rights, fight against terrorism and drug trafficking). It suggests that the priorities set by the 2005 strategy be maintained.

On 6 December 2006 the Council, acting on the basis of the report, adopted conclusions in which it set out future priorities for the external dimension of freedom, security and justice which take over the 2005 priorities as suggested by the Commission. It asked the Commission to report again by June 2008.