Lecture in the Cicero Foundation Great Debate seminar "Justice and Home Affairs - Toward the Full Implementation of the Amsterdam Treaty"

Introduction

I want to thank you for giving me this opportunity to share with you impressions about what was done in the past years following the signature of the Treaty of Amsterdam. This speech reflects only my personal opinion and does not commit the Council of the European Union.
The Treaty of Amsterdam was signed in 1997 but entered into force only in May 1999, which means that this evaluation is sort of a mid-term review after less than three years.
On the one hand, this might seem a short period, since five years were needed to create an Area of Freedom, Security and Justice. On the other hand, the events of September 11 showed that in case of emergency, Europe may be required to react at the shortest possible notice, when the expectations require a decisive reaction in terms of weeks and not of months or years. I will later come back on the anti-terrorism package adopted after September 11.
This evaluation comes also approximately two years after the first ever European Summit, dedicated to Justice and Home Affairs, the Summit of October 1999 in Tampere.

An interested observer will in the first place be puzzled by the wide scope of the objectives and apparent heterogeneous character of the instruments involved. I must admit that I have understanding for this feeling of being puzzled, since the Union has to make use of a variety of instruments and fora, with complex procedures.
So there were Action plans, Common strategies, First Pillar instruments, Third Pillar instruments, Europol, Eurojust, Schengen…

Objectives of the Treaty
An objective evaluation of what has been realised within the framework of the Amsterdam Treaty requires to remind briefly the main objectives of Title VI of the Treaty of the European Union and Title IV of the EC Treaty. The following fields of cooperation are to be distinguished:

• Immigration, asylum and external borders
• judicial cooperation in civil matters
• judicial cooperation in criminal matters
• police cooperation
• external relations

1. I would first like to address the present situation concerning immigration, asylum and external borders
This was probably the chapter of the Amsterdam Treaty which raised the highest expectations, both because of the political interest and because of the so-called communautarisation of the procedures.
The decision taken in Amsterdam to move these subjects from the third to the first Pillar of the Treaty was in part intended to enable them to benefit from the more dynamic Community decision-making process, including its full involvement of the European Parliament and the Court of Justice.
Although, one should admit that this field of cooperation has not progressed as might have been hoped.
To be sure, some positive developments can be reported, as for instance the creation of the European Refugee Fund, which was operative in 2000 and 2001, the EURODAC system, which is currently being developed and, lastly, the Directive on temporary protection, which provides the Community and its Member States with a common framework in the event of a mass influx of displaced persons (post Kosovo).
The subjects to be covered are quite technical, .e.g. the approximation of the asylum procedures. In other cases, there are important differences on the scope of the instruments to be adopted and discussion about the content. Let us consider a typical example of this difficulty: the issue of family reunification. Delegations are fighting over the issue to whom this facility should be extended: is it limited to the so-called nuclear family or could this possibly include non-married partners or even homosexual partners? Is it, to put it in legal terms, possible in the Netherlands to guarantee full and equal rights to all sorts of partnership, but to deny it to immigrants?

Lack of Progress
However, the picture is not only negative. On the contrary, interesting progress has been made in the field of border security and border management. A concept of an integrated border security model was adopted.

An overall border model is an important tool to safeguard internal security and in particular to prevent illegal immigration. It means in simplified terms that a set of complementary measures has to be implemented on different tiers. In this respect four tiers can be identified.

1. Activities in third countries, especially in countries of origin and transit, including the collection of information by Liaison Officers as well as the key role of the consular post abroad in the process of issuing visas.
2. International border co-operation.
3. Measures at external borders: border management (border checks and border surveillance).
4. Further activities inside the territory of the Member States and between Member States.

The coherence between these measures and the way they are applied by Member States is a key to the success of the general border model.

This concept is also used in the so-called Schengen evaluations. Those evaluations form part of the process, either to become a member of the group of states applying the Schengen-acquis, or to ensure the proper application of this acquis within the current Schengen states. One of the successes of the past years has been the full implementation of Schengen in Greece, as well as in Denmark, Finland, Iceland, Norway and Sweden. That application, I can guarantee, is of the highest level of security.
There was not only concern for newcomers: also the states currently applying Schengen have been reviewed. An evaluation is going on these weeks in France. These evaluations are obviously the precursors of the future evaluation of the Candidate Countries. As you know, the Commission and the Candidate Countries are negotiating the so-called Chapter 24. This means that when becoming a member, the candidate countries should be at the level required by the EU acquis on every topic relating to Justice and Home Affairs. Except for one topic, which is the key to the Schengen cooperation: the abolition of internal border controls and the SIS (possibly SIS II) for which at a later stage a political decision will have to be taken at the moment of joining the European Union.
Coming back to this first part of the evaluation, especially on borders, one should mention also the High Impact Operation which was conducted by Europol at the future external borders of the European Union, stressing the importance of the fight against illegal immigration.
The concept of border security which was described above and which was emphasized during this Europol High Impact operation lead to consider the need of drawing up a European management concept on border control. This includes, in particular, the strengthening and standardisation of checks on common training courses, exchanges of expertise and coordination of controls between the various competent departments in the Member States with a view, in the longer term, to setting up a European unit for controls at external borders. This means a European Border Police. I hope that you understand how revolutionary this idea may sound to some people.

Globally speaking, one should admit that in the field of asylum and migration, the evaluation of the results achieved on the base of the Treaty of Amsterdam are not entirely satisfactory. My personal feeling is that it has to do with the fact that the unanimity rule is still in place for key issues. This implies that negotiations go on until the very last objection has been removed. The negotiation process would certainly improve with an increase or even a systematic use of qualified majority voting. The Amsterdam Treaty provides this possibility from 1 May 2004. The Nice Treaty reinforces this for a small part. It might be one of the major tasks facing Mr. Giscard d'Estaing's Convention.

2. Judicial Cooperation in Civil Matters.
The next topic I want to address is the Judicial Cooperation in Civil Matters, which includes commercial matters as well.
The cornerstone of European Cooperation is this field is the principle of mutual recognition. A programme has been adopted by the Council which is based on the Brussels I and II Regulations (these Regulations deal with the recognition and enforcement of judgements in civil and commercial matters and in family law matters respectively). it has been designed, in the long term, to abolish the "exequatur" requirement for enforcing decisions in civil and commercial matters in an other Member State. This programme, which focuses on judicial decisions, is to be extended to include the recognition of certain administrative procedures and documents which, in addition to judicial procedures themselves, currently pose problems for the citizens concerned. The main objectives of increased cooperation between Member States are the following: a genuine European Enforcement Order (titre exécutoire européen), about uncontested claims (créances incontestées), the sensitive issue of a right of access on a cross border scale in family law disputes, a minimum standard for procedures for serving documents (procédures de notification ou de signification), the law applicable to extra-contractual obligations. Generally speaking, a better access to justice for citizens remains a priority with regard to civil matters. The Commission is expected to submit proposals on alternative methods of settling disputes.
I must admit that if there is no real political turmoil over these proposals, they are quite complicated to put in force and negotiations about instruments like Naples, Lugano, and the Hague require many years

Judicial Cooperation in Criminal Matters (since Amsterdam).
With regard to the general objective of a European area based on mutual recognition, as is the case in civil matters, the key issue is one of mutual recognition. Work has started on important issues like freezing of assets, but one should admit that Member States are reluctant to reduce the supervisory checks of enforcement to a minimum because they want to ascertain that the State of issue has complied with the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR" for short) and of the Charter of Fundamental Rights of the European Union. Generally speaking, one should admit that the thrust of discussion in the Council on a number of individual legislative proposals reveals a continuing determination by Member States to ensure that any common policies should involve the least possible adjustment to each one's existing national approaches.
This has not, however, prevented the Council from reaching an agreement on the penalties for counterfeiting the Euro, nor to adopt legal instruments on the liability of smugglers. Another encouraging recent development has been the agreement by the 28 September Justice and Home Affairs Council on the framework decision concerning the crime of trafficking in human beings. Whatever the feeling about the progress on criminal legislation might be, the successes booked at the end of 2001 following the September 11 events were impressive: In particular, political agreement was reached by the Justice and Home Affairs Council on 6/7 December on a common definition of various types of terrorist crimes and minimum sentencing thresholds which strikes a balance between the need to deal with such crimes effectively and the need to guarantee individuals' fundamental rights and freedoms. The legal text formally enacting this measure will be adopted as soon as possible.

A common list of terrorist organisations was brought to the attention of the Council. This list has been drawn up in close cooperation with operational services responsible for combating terrorism, including intelligence services, police forces and judicial authorities.
Agreement was obtained in Laeken on the framework decision for the European arrest warrant which is designed to supplant the current system of extradition between Member States for serious offences and enable wanted persons to be surrendered to judicial authorities in other EU Member States subject to agreed swift judicial review procedures.
The results achieved in the urgent field of combating terrorism should not hide that difficulties have been encountered in the implementation of the Tampere requests relating to common definitions, incriminations and sanctions for several priority areas.
One of the difficulties in this field is related to the harmonisation of sanctions. In fact, the basic discussion is always whether the consequences of approximation imply a full harmonisation of the level of sanctions. People fear that the differences between the judicial traditions in Northern and Southern Europe may have as a consequence that what is heavily punished in the South would be almost tolerated in the North. My personal feeling is that differences are not so big, even if sentences seem to be more severe in some countries. But the actual time of imprisonment is often shortened by a penitentiary policy to release people after two third of their sentence. The difficulties lie also in differences of systems: for instance Germany does not have any level of minimum sentences, which most countries have, while a country like Finland has in some fields, e.g. traffic offences no maximum penalty - the fine is calculated on the basis of your income. The key issue is that there should be mutual trust between Member States. This is obviously not always the case in transatlantic relations where the transfer of prisoners is not solved in an entirely satisfactory way. Some US states consider the penitentiary climate to be too mild in Europe and they do not cooperate with EU countries as concerns the transfer of prisoners to the European country of origin. But that is another problem and not the issue at stake today.
As concerns the harmonisation of sanctions, the EU has chosen an apparently complicated system, although it is in fact quite effective. It states - for instance as concerns the sanction for smuggling people illegally into the Union - what a minimum level of the maximum penalty should be. But there again, differences may remain, as to whether the intention to commit a crime is punishable in the same way as a crime which was already committed etc.

Police Cooperation
Police cooperation has always been described as the most difficult sector to europeanise, since police forces are the expression of the national sovereignty. However, quite satisfactory progress has been made in this respect, although it takes place in agencies:
EUROPOL: Both Amsterdam and Tampere have decided an enhanced role and capacity for Europol. This was forcefully reiterated at the European Council's special meeting on 21 September, which emphasised, inter alia, the need for Europol to be rapidly and systematically provided with the information it needs on terrorism and to be reinforced with specialists on anti-terrorism.
EUROJUST: Eurojust has made a quick start on a provisional basis. It should move into its second, and more complete, phase in 2002.
The Task Force of Chiefs of Police: This Task Force has met once during each Presidency since Tampere. Its operational role and its relationship with Europol still needs to be defined, but the first ground work has been laid.
The European Police College: Initial discussions have confirmed the enthusiasm of the practitioners themselves, even if there remain some (surmountable) budgetary and institutional arguments, including the question of the creation of its Secretariat.
To these can be added:

• The 20 September Justice and Home Affairs Council's call for regular meetings of Heads of Member States' Security and Intelligence Services.
• A possible new structure related to border management, in particular to provide shared training, exchanges and coordination of border controls between the responsible services in the Member States, perhaps with having in mind the establishment, in the longer term, of a common border control institution.

Conclusion:
As concerns the progress made in implementing the Amsterdam Treaty and the Union's reaction capability towards terrorism, I would like to share the assessment made by the Commission in its Scoreboard to the European Council, that "provided that efforts are maintained and strengthened, the prospects for delivering the Tampere objectives remain good. The initiative taken at Tampere has undoubtedly borne fruit and concrete examples of the progress already achieved".

References:

• Evaluation of the conclusions of the Tampere Council, Note to General Affairs Council/European Council, 6 December 2001
• Action de l'Union européenne à la suite des attentats perpétrés aux Etats-Unis, Rapport de la présidence au Conseil Européen, le 7 décembre 2001
• Biannual update of the scoreboard to review progress on the creation of an area of "Freedom, Security and Justice" in the European Union (second half of 2001)

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