INITIAL WORKING DOCUMENT ON THE PROCESS IN THE FIELD OF JUSTICE AND HOME AFFAIRS

Prepared by: Mr. Laurens Jan Brinkhorst

SUMMARY: M. Brinkhorst points out the main obstacles preventing a swift and democratic functionning of the EU in justice and home affairs, by criticizing the pillars structure of the Union and the purely intergovernemental nature of the decision making process; after listing the structural weaknesses of the system (overlap between third pillars and EU competences; obligation to unanimity; lack of judicial review, no use of the passerelle syste, foreseen by art.100C) M. Brinkhorst draws the consequences of its inefficiency: no ratification of the Dublin convention on asylum, no adoption of Europol; lack of efficient cooperation among member states and endless delays in the application of Schengen. He then indicates the options open to improve the situation: full integration of the third pillar matter into the Community pillar of the Treaty; wait till better times and more experience is gathered; among the two extreme solutions there are several others: really use the passerelle foreseen in art. K9 and 100C; e

xtension of the powers of initiative of the Commission; introduce directives and regulations in these matters; introduce the controll of the Court of Justice; greater role of the community budget in the finance of third pillar connected issues; much stronger involvement of national and european parliaments in decision makink and controll activities; fixation of deadlines to achieve preestablished goals.

The orientation of the draftsman is thus to consider that neither a full integration in the Treaty of the third pillar nor a status auo must be pursued because they are both irrealistic: still, some steps forward must be done in the direction of the proposals presented above. (EP, Brussel, 9 December 1994)

I. Introduction

There is a tendency to treat the provisions on cooperation in the fields of justice and home affairs in Title VI on the Treaty of European Union (the "third pillar") as the poor relation among the pillars of the European Union. Yet the issues that it covers include many (the freedom to cross frontiers, asylum and visa policy, the fight against fraud, drugs trafficking and organised crime in general, etc.) that are highly emotive, and occur in different historical, cultural and legal contexts. At the same time, they are also of direct concern for the public, and in many cases may affect their individual rights. The third pillar is thus of great potential significance for all citizens.

At the 1996 Inter-Governmental Conference it will be a matter of great urgency to deal with these matters at European level since national measures are becoming increasingly ineffective as a result of the abolition of the internal borders within the EU. If these problems are not effectively tackled within a European framework there is a growing risk of renationalization of these policies, and of a further rise in xenophobia.

In spite of its policy importance the third pillar as conceived in the Maastricht Treaty contains major structural weaknesses and is not working as it should. The scope of the present document is to make institutional proposals as to how this situation could be improved. The document thus begins with an analysis of the main problems posed by the third pillar in its present form, and then examines a number of possible options for tackling these problems.

II. Analysis of main problems

1. Nature of third pillar

(i) The third pillar is intergovernmental in nature, with a weak role for the Commission and even weaker roles for the European Parliament, the European Court of Justice and other EU bodies.

(ii) Although there is a fundamental difference between the nature of home affairs and justice matters compared to foreign policy and security matters, the Treaty of European Union created an artificial parallelism between the two areas in both structures and wording (e.g. "joint actions" and "joint positions" exist in both "pillars").

(iii) There are a number of close links with EU matters in the third pillar (i.e. explicit link to Article 100 C of the Treaty on visa policy, numerous overlaps with other central internal market concerns on the free movement of people in particular but also of goods, services and capital, issues of customs fraud, etc.).

2. Differences between third pillar and second pillar

(i) Common positions on justice and home affairs adopted under the third pillar are not as binding as their equivalents on foreign policy and security matters under the second pillar. In Article K5, for example, Member States undertake to"defend the common positions" within international fora whereas Article J-3(4) on foreign policy and security states that "joint actions should commit the Member States in the positions they adopt and in the conduct of their activity".

(ii) There is no provision for the Presidency to represent the Member States in third pillar matters, unlike the case in second pillar matters. Once common positions have been reached Article J5 states that "the Presidency shall represent the Union in matters coming within the common foreign and security policy", "shall be responsible for the implementation of common measures", and "shall in principle express the position of the Union in international organizations and international conferences".

(iii) The main emphasis in foreign policy and security is on executive decisions, whereas justice and home affairs matters (while also requiring some executive decisions) require far more legislative instruments affecting the rights of individual citizens. As a result, the European Parliament has even stronger claims to be involved in third pillar than in second pillar matters.

(iv) On the other hand, Ministers of Justice and Home Affairs are more used to operating in a purely national context than their colleagues in foreign affairs and security matters. In consequence, there has been less, and more fragmented experience of cooperation on home affairs matters (TREVI, etc.) than on foreign affairs matters, where there was the wider-ranging and more established precedent of European Political Cooperation (EPC).

3. The third pillar as drafted contains major structural weaknesses

Overlaps

(i) There are severe overlaps and potential legal conflicts arising from the fact that a number of matters in the fields of justice and home affairs are both covered by Community procedures and by inter-governmental cooperation under the third pillar. Two concrete examples can be given:

- What is the relationship between these different procedures in a field such as drugs policy, covered in the third pillar in Articles K1 (4) (where Commission initiatives are possible), as well as K1 (7,8 and 9) (where only Member State initiatives are allowed), and in the Community pillar under Article129 on cooperation in public health (where co-decision applies)? Moreover, what is the link between the Drugs Observatory in Lisbon and the European Drugs Unit in EUROPOL?

- What is the relationship between the different procedures in the context of the External Frontiers Convention which mainly falls under third pillarprocedures but with visa policy separately treated in a regulation pursuant to Article 100 C of the Treaty?

Procedures

(ii) - Instruments in the third pillar either require cumbersome procedures to make them legally binding (e.g. Conventions) or are of an undefined legal nature (e.g. joint positions, joint actions, non-binding resolutions and recommendations). Procedures are further complicated because different types may apply in different cases (e.g. the Commission or Member States may propose initiatives in certain areas but only the Member States in others).

- There are unsatisfactory voting procedures; decisionmaking on third pillar matters is severely hindered by the general requirement of unanimity. The only cases where other voting procedures are envisaged are optional ones at the discretion of the Council (i.e. Articles

K3-2 (b) and K3-2 (c)). As a result, they have not so far been used, and in present circumstances are unlikely to be used.

Lack of judicial review

(iii) Apart from a possible role in disputes concerning conventions (pursuant to Article K3 (2)(c), judicial review of justice and home affairs matters under the Treaty of European Union has been expressly excluded.

Financing

(iv) Operational expenditure on third pillar matters has so far been exclusively financed by Member States' contributions. Direct efforts to use the Community budget as foreseen by article K8(2) have been rebuffed. As regards financial control, there has even been an attempt to set up separate auditing mechanisms for EUROPOL to avoid giving a role to the European Court of Auditors.

Lack of use of the "passerelle" in Article 100 C

(v)The "passerelle" Article of the Treaty (100 C) providing for transfer of certain issues from the third pillar to Community competence is ineffective in that it requires unanimity in the Council combined with the need for ratification by the Member States. One might even argue that it is also illogical in that it expressly excludes matters such as customs and police cooperation which are directly relevant to major EU concerns. In consequence, the "passerelle" provisions have not been used.

4.The third pillar is not working efficiently

(i) The Dublin Convention on procedures on asylum demands has still not yet been ratified by all Member States, and other important work related to asylum policy (such as harmonized application of the Geneva Convention definition of refugees) has still not been completed.

(ii) The EUROPOL Convention has not yet been adopted and there are still major unresolved political problems impeding its final completion, such as the scope of EUROPOL activities (e.g. is terrorism covered?), its information system and handling of data flows, the issue of access of individual citizens to personal data affecting them, and the involvement of various EU institutions, the European Parliament, the European Court of Justice and the Court of Auditors.

(iii) Much of the other output of Member State cooperation under the third pillar has consisted of non-binding resolutions.

(iv) More far-reaching cooperation between the Member States is impeded by differences in Member State cultures and also by a fundamental lack of trust in the officials of other Member States.

(v) Finally, the sad history of delay in applying the Schengen Agreement, while it does not technically fall under the third pillar, is nevertheless illustrative of the lack of efficiency of the purely inter-governmental method.

III. Possible options

1. Full integration of third pillar matters into the first or Community pillar of the Treaty

This is the boldest option, and has always been the European Parliament's preference. Is it, however, a realistic objective in the 1996 IGC?

2. The status quo: Waiting for more experience with the existing third pillar before proceeding with further institutional changes

The structural weaknesses and ambiguities that were identified above, and the lack of concrete achievements under the third pillar, constitute eloquent arguments against this over-cautious option.

3. Other possible ways of amending existing third pillar provisions falling short of their full integration into the Community pillar but remedying some of the most important present problems

(i) Making sure that the "passerelle" provisions in Article 100C are really used

- Use the existing provisions to progressively transfer all matters under K1 (1-6) into the area of Community competence, but facilitate this by changing thedecision-making mechanism so that this can be done by qualified majority rather than by unanimity and also by removing the need for ratification by Member States?

- Get rid of the exclusions from the passerelle under K1 (7-9), or at least those dealing with customs and police cooperation, so that these important matters can also be transferred to Community competence? Modify Article 100C to provide for more rights for the European Parliament?

(ii) Extension of the Commission's right of initiative

Removal of the limitation on the Commission's right of initiative in the case of matters under K1 (7-9).

(iii) Change the nature of the instruments

Seek to replace joint actions and positions (which may be appropriate in the context of executive decision in foreign policy but are much less so in the more legalised context of the third pillar) by more traditional Community legal instruments such as regulations and directives?

(iv) Judicial and other control

Provide for judicial control of conventions by the European Court of Justice, and define the scope of such control in a wider rather than limited sense? Involvement of the Court of Auditors?

(v) Representation of Member State interests in third pillar matters

Enable the Presidency to represent Member States on these matters? Give the Commission an executive role on these matters, and if so which one?

(vi) Financing

A greater role for the Community budget with the objective of achieving, within the framework of a unified budget, the financing of third pillar policies by the Community budget (requiring modification of Article K8)?

(vii) Role of the European Parliament and of national parliaments

Provide for much stronger involvement of the European Parliament and also examine ways of associating national parliaments in decision-making and control activities to a greater extent than at present (e.g. annual meetings between equivalent internal affairs committees in the European Parliament and national parliaments as suggested in the EP resolution on cooperation in justice and home affairs of 15 July 1993)?(viii)Establishment of a proper timetable of activities

Move away from the present "ad hoc" situation and draw up clear deadlines for the achievement of the main objectives in this field?

Finally, besides institutional issues, it is important that more human resources are made available by the Community to this area.

IV. Draftsman's initial orientations

In view of the above analysis of the main problems, neither of the first two options (full incorporation of the third pillar into the first pillar and the status quo) should be pursued (the first probably being unrealistic and the second certainly being undesirable).

Nevertheless, certain minimum objectives must be met at the 1996 IGC in the interest of democracy, transparency and of greater efficiency. Moreover, the application of the principle of subsidiarity that decisions should be taken at the most appropriate level pleads for much greater action at EU level, and therefore for greater involvement by all EU institutions. Present practice only uses the single institutional framework established under the Maastricht Treaty in a selective way. This situation should be corrected.

There is no reason why the Commission's right of initiative should not be applied to all K1 matters, and why the Court of Auditors and the European Court of Justice should not play essential roles in matters of justice and home affairs if the European Union is to function according to the rule of law. The role of the European Parliament should also be significantly enhanced, along with those of national parliaments, the latter at least as long as unanimity requirements prevail.

Finally, the exclusive use of unanimity procedures has blocked progress on all central policy questions within the third pillar. In order to remedy this unfortunate situation, progress can only be achieved in a balanced way. The necessary removal of the unanimity principle will have to have its counterpart in a reinforced role for the other EU institutions besides the Council. Any other solution would be unacceptable.