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
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
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
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
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.
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
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.