Mr. Wouter VAN DE RIJT
General Secretariat of the Council of the European Union, Directorate
General H - Justice and Home Affairs
"The Implementation of Amsterdam: What Has Been Achieved and What Has
Still To Be Done?"
Paris, 14 February 2002
Lecture in the Cicero Foundation Great Debate seminar "Justice and Home Affairs
- Toward the Full Implementation of the Amsterdam Treaty"
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
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
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
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.
- 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.
- International border co-operation.
- Measures at external borders: border management (border checks and border
- Further activities inside the territory of the Member States and between
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
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
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
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
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 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.
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".
- 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