Anne WEYEMBERGH

Free University of Brussels, Institute for European Studies

"BUILDING A EUROPEAN LEGAL AREA:
WHAT HAS BEEN ACHIEVED AND WHAT HAS STILL TO BE DONE?"

Lecture in the Cicero Foundation Great Debate seminar "Justice and Home Affairs - How to Implement the Amsterdam Treaty?", PARIS 13-14 April 2000

Introduction

This lecture will be divided in three different parts:
Firstly, I will speak about the origins of the cooperation in the field of Justice and Home Affairs between the Member States of the European Communities. Secondly, I will see which were the achievements in that field under the Maastricht Treaty. And thirdly, I will tell you about the improvements introduced by the Amsterdam Treaty and about the prospects introduced by the Tampere Summit which took place in October 1999 under the Finnish Presidency and which was specially devoted to Justice and Home Affairs.

I. The Origins of the Cooperation in the Field of Justice and Home Affairs Between the Member States of the European Communities

Actually, the Maastricht Treaty did not create the cooperation in that field between the Member States of the European Union. In fact the customs cooperation and the judicial cooperation in civil matters developed in the sixties. The police cooperation and the criminal judicial cooperation developed during the seventies, when the Member States realised how important it was to cooperate to fight against transnational crime and to face the threat of "Euro-terrorism". Here I am talking about the terrorism directed against the Western countries by Middle-East groups or extreme left wing groups as in Germany "Die Rote Armee Fraktion". At that period, the States of the EC created a number of informal groups to develop their cooperation, as, for example, the famous Trevi group which appeared in 1975 and was initially devoted to the fight against terrorism. At the same time and within the same context, the French President, Giscard d'Estaing, proposed to build a "European criminal judicial area" between the Member States of the EC. This idea aimed at facilitating and at intensifying the criminal judicial cooperation which preexisted in a broader framework: the framework of the Council of Europe. Unfortunately, this French proposal failed because of the opposition of some Member States, as for example the Netherlands, which considered that the Council of Europe must keep the monopoly of the criminal judicial cooperation.

In the eighties, the cooperation in the field of Justice and Home Affairs developed as a consequence, or rather as the condition, of the realisation of the internal market between the Member States of the EC. That realisation of the internal market became clearly an objective of the EC Treaty with the adoption of the European Single Act in 1986. The creation of a European internal market implied the abolition of the controls at the internal borders of the Member States. To avoid security problems, such as an increase of illegal migrants and an increase of criminality, the abolition of controls was subordinated to the development of the cooperation in the field of Justice and Home Affairs. This cooperation developed in that period was meant as a compensatory measure for the abolition of checks at the internal borders. Many new groups or structures aiming at developing that cooperation appeared in that period. They were from various origins, they were composed and organised differently, but all of them shared some common features, as for instance their purely intergovernmental nature and - as the consequences of this nature: the unanimity rule, the recourse to traditional instruments as resolutions, recommendations or conventions, the major rule of the Governments and the national administrations, the absence of national Parliaments as well as the absence of the European Parliament and the crucial lack of transparency. These two last elements led - rightly - to a lot of criticisms.

The Dublin Convention

I would like to mention one of these new structures, dealing with the cooperation in the field of asylum and migrants: the "Ad Hoc Group on Immigration". This group drew up notably the Dublin Convention on the responsibility for the processing of asylum applications, which was signed in June 1990 by all the Member States and came into force in September 1997. This Convention does not provide harmonisation of the law of asylum. It establishes the principle that a single Member State is responsible for considering applications for asylum. It lays down the rules for determining which country will consider a request for asylum in a given case. This Dublin Convention aimed at avoiding two practices:
- the "asylum shopping", which is the fact that applicants put forward requests in different Member States, hoping that a request will be successful in at least one of them;
- the "refugee in orbit", the practice of the Member States to reject the responsibility for the processing of asylum applications, saying "I am not competent, it is the competency of another Member State."

In spite of some important achievements, as was the Dublin Convention, generally speaking, the cooperation in the field of Justice and Home Affairs between the Member States of the EC was unsatisfying. This was due to the lack of coordination and organisation in the working of existing forums, to the rule of unanimity and to the lack of political will in such delicate issues as Justice and Home Affairs.

The Schengen Agreement

Before tackling the Maastricht Treaty, a few words about the Schengen Agreement. In 1985, five Member States of the EC concluded the Schengen Agreement on the gradual abolition of checks at common borders, which was followed in 1990 by the conclusion of the Convention implementing it. Those texts aimed at preparing the internal market between the Member States of the EC. They are really of essential importance because they achieved the abolition of checks at the Schengen international borders and developed the cooperation in the field of Justice and Home Affairs as a compensatory measure to the abolition of checks. Common rules were issued concerning the crossing of external borders; a common short term visas policy appeared between the Schengen States; the criminal judicial cooperation developed, as well as the police cooperation. About that last cooperation, it is worth noting the authorisation of transborder surveillance and of transborder pursuit provided in the implementing Convention of 1990 and of course also the establishment of the Schengen Information System (SIS).

II. The Maastricht Treaty

With Maastricht, the EC Treaty was completed by two new intergovernmental pillars. As a consequence of this, the Treaty on the European Union was often compared to a Greek temple built on three different pillars: the first one being the EC Treaty, the second one devoted to a common foreign and security policy and the third one related to the cooperation in the field of Justice and Home Affairs. The first advantage of the Maastricht Treaty was the fact that it centralised in the Third Pillar all the workings of the existing groups in the field of Justice and Home Affairs. As a consequence, most of these groups disappeared, except the cooperation developed between the Schengen Member States, which continued to function parallel to the Third Pillar of the Union. Another important advantage of the Maastricht Treaty was the fact that, in spite of the intergovernmental nature of the Third Pillar, some Community features were introduced, such as the involvement of the European Commission and of the European Parliament.

Criticisms on the Third Pillar

However, the Third Pillar was rightly criticised. Firstly because of the upholding of the unanimity rule, each Member State keeping a right of veto, and secondly because of the complexity of its working structure which included in the beginning five and afterwards four different levels: the working groups, the steering groups which quickly disappeared, the K 4 Committee, Coreper and finally the Council. At each of those levels, the measures or decisions had to be adopted unanimously and this resulted of course in the reduction of the ambitions to the lowest common denominator.

Criticisms were also addressed to the almost complete absence of jurisdictional control by the Court of Justice of the European Community and the too modest involvement of the European Commission and the European Parliament. The Third Pillar recognised a right of initiative of the Commission, but this right was excluded in the field of customs cooperation and police and criminal judicial cooperation because of the will of the Member States to keep the monopoly of initiative in those fields, which really appear as the core of their sovereignty. As to the European Parliament, as I already said, it got involved in the Justice and Home Affairs cooperation, but this involvement remained too modest: the Treaty only stipulated that the Presidency and the Commission had to inform it regularly about the work in the Third Pillar and also that it had to be consulted on the main aspects of the activities. Actually, the information and the consultation of the Parliament was reduced to a minimum in practice: most of the time, it was either not informed or consulted at all, or it could not be informed or consulted efficiently because the information given to it was outdated, or it was informed and consulted much too late: at the last moment before the voting in the Council.

How Efficient are the Instruments of the Third Pillar?

The inefficiency of the instruments used in the Third Pillar was also denounced. Two kinds of instruments were used:
- traditional instruments - such as resolutions, recommendations - and conventions.
- The resolutions and recommendations were very successful because of the habit to use them, but also because of their non binding nature. These instruments were particularly successful in the field of asylum and migrations. Except a few binding instruments, those issues only got regulated by "soft law" in the framework of the Maastricht Third Pillar. I can mention here for instance the Resolution of 1995 on minimum guarantees for asylum procedures, which was an attempt of the Member States to agree on common standards for dealing with asylum seekers. As a lot of texts adopted by the Member States dealing with asylum and migrations, this resolution was rightly criticised, mainly because of its contradictory nature. While the resolution upholds the fundamental principles of international law governing asylum procedures, it allows at the same time exceptions to be made in certain situations. Specially, the concepts of "safe country of origin" and "host third country" can be denounced. They are adopted to reduce the number of asylum seekers in the European Union and to shift the responsibility towards third countries.
- Some very important conventions were concluded, as, for example, in the field of customs cooperation, the Convention of 1995 on the use of information technology for customs purposes and its Protocols, the Convention of 1997 on mutual assistance and cooperation between customs administrations. Also in the field of criminal judicial cooperation some very important conventions were adopted, such as the Convention of 1995 on the protection of the EC financial interests and its Protocols or the Convention of 1997 on the fight against corruption involving officials of the EC or officials of the Member States of the EU. Concerning the judicial cooperation in civil matters, we can mention the Convention of 1995 about the insolvency procedures or the Convention of 1998 on competence, recognition and execution of decisions in the matrimonial field. The problem with the conventions is the slowness of their coming into force. They need two different steps before coming into force, the first is the unanimous adoption of their text by the Council and the second one is the ratification by all Member States. This explains why there is only one Convention concluded in the framework of the Maastricht Third Pillar which is in force among all the Member States and this Convention is the Europol Convention of 1995.

In addition to the traditional instruments, two other instruments were used: the common positions and the joint actions lent to the Third Pillar by the second one. The common positions were seldom used but some examples can be given as the two common Positions of 1997 on negotiations in the Council of Europe and the OECD relating to corruption. There were a lot of joint actions which were adopted, specially in the field of criminal judicial cooperation. For example, after the famous and dramatic Dutroux case in Belgium, four joint actions were adopted in the fight against trafficking in human beings and against sexual exploitation of children. The first one extended the mandate given to the Europol Drugs Unit to these offences; the second one established an incentive and exchange programme for persons responsible for combating trade in human beings and sexual exploitation of children, (this was called the STOP Programme); the third one concerned the creation and the maintenance of a directory of specialized competences, skills and expertises and the fourth one, which was the most difficult to adopt, is the joint action tending to improve criminal judicial cooperation between the Member States in the field of trafficking in human beings and of sexual exploitation of children.

Just before the intergovernmental Conference which led to the Amsterdam Treaty, the achievements in the field of Justice and Home Affairs were judged negatively. This must however be moderated, specially concerning the police cooperation - I recall you the Europol Convention - and also concerning the criminal judicial cooperation. In this last field, some important progress was achieved. Numerous binding instruments were adopted which clearly improve the cooperation between the Member States. This is the case of the joint action of 1998 creating a European Judicial Network constituted by the judicial contact points who are active intermediaries facilitating judicial cooperation between the Member States, particularly facilitating direct contacts between the judicial authorities. Another joint action which deserves to be mentioned is the joint action of 1997 establishing a mechanism for evaluating the application and the implementation at the national level of international undertakings in the fight against organised crime. This instrument is a useful means to improve the cooperation in the Union because it identifies very clearly the gaps and deficiencies of each national system but also its advantages. Some instruments were adopted, but are not yet in force in all the Member States, as the Convention of 1995 and 1996, which reform deeply the extradition offences. Lastly, negotiations tending to the adoption of very important instruments were launched under the Maatricht Treaty. The importance of the draft Convention on Mutual Assistance between the Member States must be underlined. This Convention should soon be adopted. It can of course be criticised on several points, but it is particularly interesting, because it makes use of new technologies by the criminals. Here, the articles organising the interception of telecommunications must be mentioned.

III. The Prospects introduced by the Amsterdam Treaty

Justice and Home Affairs was a key subject in the negotiations which led to the new Treaty. The Maastricht Third Pillar was deeply reformed. The first important improvement realised by the Amsterdam Treaty is the identification of much more precise, but also much more global objectives in the field of Justice and Home Affairs. The objectives are more precise, because the measures to be taken are clearly listed and deadlines are fixed. They are more global, because the co-operation in the field of Justice and Home Affairs does not appear anymore simply as compensatory measures to the abolition of controls at the internal borders. The establishment of an area of freedom, security and justice is an objective in itself and the development of Justice and Home Affairs is the means to realise it. The notion of "area" is of course a fundamental one. It can be compared to the notion of "citizenship" introduced by the Maastricht Treaty. As this last notion did not abolish the traditional concept of nationality, but was superimposed to it, the notion of "area" does not abolish the national territories of the Member States, but creates a new notion to underline the geographical unity. This more global approach of Justice and Home Affairs in the Amsterdam Treaty is really essential, because it should allow to correct two major imbalances existing in those fields. The first imbalance, which should be corrected, concerns the third country nationals whose situation was dealt with in a repressive manner, without showing much interest in other issues, as for example their integration into the host country. The second imbalance, which should be corrected concerns the criminal judicial co-operation. All the achievements were developed on the repressive side of the matter. Issues linked to the individuals' rights, such as the rehabilitation of condemned persons or the victim's rights, were ignored. These imbalances must absolutely be corrected if we want to speak of a real area of freedom, security and justice.

The Amsterdam Treaty divides the Maastricht Third Pillar in two parts. It transfers nearly all the issues to the First Pillar. The asylum, the migration policy, the status of third country nationals, the crossing of external borders, the judicial co-operation in civil matters were "communautarised". This implies the recourse to European Community instruments, such as directives and regulations, which are much more effective than the instruments of the old Third Pillar. This "communautarisation" also implies the introduction of the control by the Luxembourg Court of Justice, in a similar way as for the other Community issues, but combined with a few important limitations.

However, some features of the communautarisation show very clearly the limits of this achievement. It still contains intergovernmental features. The role of the European Parliament is still modest and unanimity rule still applies during a transitional period of five years after the coming into force of the Treaty. After that period, the Council may unanimously decide to apply the qualified majority rule.

The police co-operation and the co-operation in the field of criminal justice remain in a renewed Third Pillar. This pillar has still an intergovernmental nature: the unanimity rule is still maintained, the role of the European Parliament is still limited but some Community features are introduced. The Commission has henceforth a right of initiatives in those fields, which it did not have under the Maastricht Treaty. The competence of the Court of Justice is now introduced in the fields of police co-operation and criminal judicial co-operation. This is an important progress, but one should not delude oneself because of the limits imposed to the Court's competence.

New instruments appear in the Third Pillar: the common position still remains, but its legal nature is clearly defined. The joint action disappears and is replaced by two new binding instruments, which are the framework decision for approximation of laws and regulations of the Member States and the decisions for any other purposes. Both of these new instruments can be compared to the directives, because they are binding upon the Member States as to the result to be achieved, but leave to the national authorities the choice of forms and methods. They differ from the directives because they do not entail any direct effect. They are much more effective than the joint actions, because they bind the Governments and the national Parliaments, whereas the joint actions only bound the governments and not the Parliaments, which explains how inadequate they were to adopt measures implying legislative changes.

The conventions are still mentioned in the new Third Pillar, but the Amsterdam Treaty tends to lighten the procedure to be followed for their coming into force. Unless they provide otherwise, conventions will, once adopted by at least half of the Member States, enter into force for those Member States. The Amsterdam Treaty also introduces substantial changes in the renewed Third Pillar, which affect deeply the national sovereignty and the territoriality principle. It opens the door for operational powers to Europol. It states also that the Council shall lay down the conditions and limitations under which the competent authorities may operate in the territory of another State in liaisons and in agreement with the authorities of that state. An important article related to the approximation of legislations states that a common action should be taken to adopt measures establishing minimum rules about constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.

Closer co-operation was one of the main items dealt with during the intergovernmental conference which led to the new Treaty. This Treaty and especially the field of Justice and Home Affairs knows some examples of closer co-operation. Three Member States: Ireland, the UK, and Denmark, do not participate in the communautarisation achieved by the new Treaty. The same Member States do not participate either in the integration of the Schengen acquis achieved by the Amsterdam Treaty. If those closer co-operations offer the advantage of allowing the Member States to progress without being blocked by the opposition of some others, they increase incredibly the complexity of the subject. This is quite a problem in the field of criminal judicial co-operation for example. This co-operation was already very complex because of the number of existing conventions, concluded in different geographical frameworks, as the Council of Europe, the Benelux, the EC and the EU, the Schengen co-operation, etc. The state of ratifications and the numerous reservations or declarations made by the States increase this existing complexity. The emergence of new closer co-operation will of course not improve the situation. This obscurity, denounced by a lot of practitioners, especially magistrates, repulses those who are unfamiliar with the subject and threatens the access to criminal justice.

The Tampere Summit

The Tampere Summit, which took place in October 1999 and which was specially devoted to Justice and Home Affairs, confirmed some of the orientations chosen in Amsterdam. This Summit increased the hope, born out of the global approach established by Amsterdam, that the repressive measures shall be completed by more "humanitarian" concerns in the field of asylum and migration, as well as in the field of criminal judicial co-operation. The importance of the integration of third country nationals, who are lawfully resident in the Union, is underlined. It is even stated that a more vigorous integration policy should aim at granting them rights and obligations comparable to EU citizens. With regard to criminal judicial co-operation, the Tampere conclusions invite the Commission, in co-operation with other forums, to facilitate the access to justice through launching information campaigns and publishing "user guides" on judicial co-operation within the Union. The conclusions also call for developing the assistance and protection of victims.

Tampere urged to materialise soon the acquisitions of the Amsterdam Treaty and defined more precisely their framework or scope. It calls for example for joint investigations teams, as foreseen in the Treaty, to be set up without delay, as a first step, to combat trafficking in human beings as well as terrorism. It identifies the sectors on which the efforts to agree on common definitions, incriminations, and sanctions, should be focused in the first instance.

The European Summit also opened the way to new prospects. The "new approach" should be underlined here. It is based on the principle of mutual recognition of judicial decisions and judgements. According to the Tampere conclusions, this new approach should become the cornerstone of judicial co-operation in civil as well as in criminal matters. Another new important prospect, which appeared in the Tampere conclusions, is the creation of a Unit called Eurojust composed of national prosecutors, magistrates or police officers of equivalent competence, detached from each Member State. This new Unit should facilitate the co-ordination of national prosecuting authorities and support criminal investigations in organised crime cases.

The Tampere conclusions revealed ambitious and drew the real consequences of an area of freedom, security and justice. Even if they are not legally binding, but are only political orientations, they are essential, because they confirm that in assigning to the Union the general objective of the establishment of an area of freedom, security and justice, the Amsterdam Treaty draws the Union into a process from which it will be very difficult to withdraw.

Conclusion

To conclude, I would like to stress that Justice and Home Affairs are really at a turning point. Over a period of seven months, four major events occurred:

- On 1 May, 1999, the Treaty of Amsterdam, which deeply reformed the Justice and Home Affairs, came into force
- As a consequence, the Schengen Agreements disappeared and the Schengen acquis was integrated into the Union
- On 1 July, 1999 Europol started running
- And, on 15 and 16 October 1999, the Heads of State devoted a special European Summit - the Tampere Summit, to those issues.

The major and, generally speaking, positive changes those events imply transformed Justice and Home Affairs into a huge "building site".

The work concerning a lot of new instruments is launched: some proposals were made, as, for example, the proposal for a decision creating a European Refugee Fund, the proposal for a directive on family reunification or the proposal for a regulation, listing the third countries whose nationals must be in possession of a visa when crossing the external borders and those whose nationals are exempt from that requirement.

The reflection about other issues is also launched , as, for example, about Eurojust, about the principle of mutual recognition of judicial decisions and judgements, about the joint investigation teams or the revision of the Dublin Convention.

But the road to the achievement of a real area of freedom, security, and justice is still very long and it is full of obstacles. Most of these obstacles are linked to the will of the Member States to remain sovereign in the matters related to Justice and Home Affairs. Illustrations of that will can be found in the recent regulations made by Italy, France or Belgium without co-ordination with other Member States. The mistrust among the Member States is still present. Let us think of the almost permanent use France makes of the exception clause allowing the Member States to restore the controls at its internal borders with countries neighboring the Netherlands, because of the drugs policy of this last Member State. The biggest challenge which the creation of an area of freedom, security, and justice will face is the establishment of mutual confidence. The role of harmonisation of the laws and regulations of the Member States should not be underestimated.