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THE EUROPEAN UNION |
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JAI 166 |
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Presidency |
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General Affairs Council/European Council |
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Subject : |
Evaluation of the conclusions of the Tampere European Council |
I. INTRODUCTION
This report on the achievements of the Tampere action plan comes at a strategically ideal time to conduct an initial evaluation of the results obtained and the difficulties encountered.
Coming a little over two years after Tampere and the entry into force of the Amsterdam Treaty, which made it a Union aim to become an area of freedom, security and justice, the report should make it possible to carry out an objective evaluation, an analysis of the problems and possible refocusing of policies or definition of new priorities.
As stated in the Tampere conclusions, the debate should be "a full debate assessing progress".
At first sight, the scoreboard produced by the Commission reveals a wealth of achievements in the various areas of police cooperation and judicial cooperation in civil and criminal matters and, to a lesser extent, asylum and immigration.
Recent tragic events have shown that an action plan cannot remain unchanged for too long and is subject to alterations dictated by events. The programme of action to combat terrorism has led the Council, and the European Council, to adopt a detailed programme of measures with priority for the European arrest warrant and the Framework Decision on combating terrorism. At its meeting on 6 and 7 December 2001 the (JHA) Council gave its provisional agreement on the draft Framework Decision on combating terrorism, subject to parliamentary reservations by the Swedish, Danish and Irish delegations and re-consultation of the European Parliament; at the same meeting, the Presidency noted the agreement of fourteen delegations on the draft Framework Decision on the European arrest warrant and the surrender procedures between Member States.
Finally, in accordance with point 61 of the Tampere conclusions, work has also focussed on the external aspects of action in the JHA field. Progress has been made in particular in connection with the transatlantic dialogue and in relations with Russia and Ukraine as well as with the action plans prepared by the High‑level Working Group on Asylum and Migration. There have been regular contacts with the candidate countries at all levels.
In some areas the Council's action has consisted initially of establishing priorities by means of action plans in order to follow up the Tampere conclusions. This has been the case in the drugs area (definition of a drugs strategy) and in connection with the establishment of a range of measures for implementing the programme of mutual recognition of judgments in civil and criminal matters. This is also the case with the report aimed at pursuing or initiating studies into the need to harmonise Member States' legislation in civil matters.
The scoreboard produced by the Commission contains a very full but contrasting account of achievements in the Justice and Home Affairs field since the Tampere European Council. The Presidency shares this qualified assessment and has therefore decided that this document should focus on the problems encountered and on the possible reactions to them.
It goes without saying that the Presidency assumes full and sole responsibility for the document. It is aware that some of the judgments and proposals made do not have the backing of all the Member States. Above all, this document is an invitation for a debate assessing the implementation of the Tampere conclusions.
The Presidency therefore submits the following problems, which were the subject of a first discussion by the JHA Council on 16 November 2001, for the consideration of the European Council.
- Improved checks on immigration flows can largely be achieved by improving checks at the current and future external borders of the European Union and stepping up consular cooperation on visas between the States participating in Schengen cooperation. The Council/European Council is invited to discuss the most appropriate means of achieving tangible results in these areas in the short, medium and long term (see in particular the proposals made under point II, paragraph 5, of this document).
- Several Member States have recently adopted or are currently adopting laws on asylum and immigration. The necessary adoption of national laws may, in certain cases, complicate the discussion of proposals for Community legislative acts which the Commission has referred to the Council. The Council/European Council is asked to reflect on possible ways of ensuring greater convergence in Member State legislation on asylum and immigration (see in this connection the proposals made under point II, paragraphs 2, 3 and 4 of this document).
- Various instruments (e.g. SIS, joint investigation teams) various institutions (Europol, Eurojust) or fora (especially the Police Chiefs Task Force, European judicial network) have been, or are currently being, set up in order to enhance police cooperation and judicial cooperation in criminal matters. The Council/European Council is invited to assess the effectiveness of these arrangements and to propose any measures likely to enhance further the operational added value they bring to police and judicial cooperation in criminal matters between the Member States (see in this connection point V of this document).
- The scoreboard drawn up by the Commission illustrates the amount of work still to be done before the Union becomes a real area of freedom, security and justice. Given the strict deadlines set by the Treaties and the European Council and the resources available both at national and EU level, it is important that the Council improve its procedures and working methods. The Council/European Council is invited to continue the discussions begun at the informal meeting of the Justice and Home Affairs Ministers on 18 and 19 February 2001 in Stockholm and to adopt organisational and procedural measures with a view to enhancing the effectiveness of its work, independently of the working party review under way within Coreper.
II. IMMIGRATION, ASYLUM, CONTROLS AT EXTERNAL BORDERS
Despite the political determination to make progress in these areas, reaffirmed at the European Conference on Migration on 16 and 17 October 2001, current discussions within the Council are not progressing as rapidly as might have been hoped, as a result of the intrinsic technical difficulty of the subjects addressed (e.g. asylum procedures), of real differences on the scope of the instruments to be adopted (e.g. family reunification) and of Member States' reluctance to go beyond the confines of their national laws. Ways of overcoming these obstacles are needed with a view to formulating common policies, the need for which no-one denies, within timeframes compatible with the credibility of the European enterprise in these areas. In this respect, the following guidelines and principles could be set out:
· The framework defined by the Amsterdam Treaty, the Vienna Action Plan and the Tampere conclusions, as summarised in the Commission's scoreboard, must continue to serve as a guide for action by the Union, its institutions and its Member States in the years to come;
· It is vital that the Laeken European Council injects lasting dynamism into the process; certain specific matters must be given an impetus so as to unblock them and to enable formal adoption to take place as soon as possible; this is the case in particular with the proposal for a Directive on family reunification, with the three proposals concerning respectively asylum procedures, minimum standards for the reception of applicants for asylum and bringing the Dublin Convention and the proposal for a Directive on the status of long-term resident into the Community sphere;
· In view of the significant responsibilities retained by Member States for the implementation of immigration and asylum policies, the convergence process in these areas could be made easier by the establishment of an open coordination policy as proposed by the Commission: the adoption of guidelines could provide an opportunity to define the common terms of reference for agreement by Member States on immigration and asylum matters; this flexible method of convergence could ensure that the prerogatives which Member States consider they must retain, at least during a transitional phase, are respected while ensuring progress towards common objectives; in no circumstances could it replace the legislative work essential to fulfilling the Treaty aims. This approach would accompany and facilitate the legislative process based on the Treaty while allowing harmonisation of mechanisms not directly covered by the latter, and the identification of sectors in which Community legislative intervention seems to be absolutely essential.
· It is necessary to augment the framework defined above, in particular with regard to combating illegal immigration, controls at external borders, visa policy or the policy on return; it would thus seem essential to press ahead along the lines of the initiatives currently being implemented in relation to visas, in particular by encouraging the setting up of a first common office for issuing visas. To give cooperation in this field a more practical bent, it is also desirable to organise at regular intervals operations such as the "High Impact Operation" conducted at the future external borders of the European Union, the results of which were generally regarded as very positive. The need for a common and solidarity-based approach to controls at the Union's current and future external borders leads us to consider drawing up a European management concept on border control which 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. Reference should also be made to evaluations based on those conducted by the Working Party on Schengen Evaluation which make it possible to verify the proper application of the Schengen acquis and to boost the level of border protection. The catalogue of recommendations for the correct application of the Schengen acquis and best practices is an instrument intended to strengthen and standardise border control, assist candidate States, and prevent illegal immigration and other forms of crime.
This account shows that the changeover to the Community pillar has not been enough to give a decisive impetus to work in the asylum and immigration sector. Maintaining the unanimity rule is clearly a serious hindrance to progress. The move to qualified majority voting, as provided for in the Treaties, would allow proceedings to be speeded up.
III. JUDICIAL COOPERATION IN CIVIL MATTERS
Consideration has been given to the need to approximate Member States' legislation in civil matters in accordance with point 39 of the Tampere conclusions. A report on this topic has been adopted by the Council. Discussions are due to continue on this basis. Moreover, it is desirable that certain priorities be reaffirmed and that some proceedings be speeded up. In this connection the following recommendations could be made:
· The principle of mutual recognition should remain the cornerstone of future work on European judicial cooperation in civil matters. The mutual recognition programme adopted by the Council must be applied. In particular, priority should be given to decisions concerning uncontested claims, making it possible to establish a genuine European Enforcement Order, and to certain judgments concerning family law disputes, such as right of access on a cross‑border scale;
· The setting of minimum standards for procedures for serving documents in Member States, which is a logical precondition for the full application of the principle of mutual recognition, should also constitute a priority stage while complying with the fundamental principles of Member States' laws;
· The compatibility of the rules applicable in Member States with regard to conflicts of laws, provided for in Article 65 of the Treaty, is also an important element of the mutual recognition programme. In particular, discussions should be started as quickly as possible on the matter of the law applicable to extra-contractual obligations;
· Better access to justice for citizens remains a priority with regard to civil matters. It is important that the Commission rapidly submit a proposal to the Council covering certain aspects of legal aid as well as a proposal on alternative methods of settling disputes.
IV. JUDICIAL COOPERATION IN CRIMINAL MATTERS
Several political, legal and institutional difficulties are hampering the setting up of a true European judicial area in criminal matters:
· Mutual recognition: in accordance with point 37 of the Tampere conclusions, the Council has adopted, within the time limits set, a range of measures to implement the programme of mutual recognition. Work on the first instruments (e.g. freezing of assets, European arrest warrant) has begun, but major differences of approach have emerged. In order to make it easier for discussions on this matter to be continued, several approaches could be examined:
- increase mutual trust: some Member States are reluctant to reduce supervisory checks in the State of enforcement to the 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. It is therefore proposed that the Commission be called upon to submit to the Council any proposal aimed at strengthening minimum standards of protection in procedural terms developed by the mass of case‑law of the Court of Human Rights relating in particular to Articles 5, 6 and 11 of the ECHR. It is also proposed, albeit as a medium-term solution, that examination of the French proposal aimed at setting up a network of colleges for the training of magistrates begin as soon as possible.
· Harmonisation: several instruments approximating charges and penal sanctions in the areas identified by the Amsterdam Treaty and by the Tampere conclusions have been adopted. The Community is, however, faced with a threefold difficulty:
– firstly, a great many Member States are reluctant to review their criminal law. Most of the acts adopted, therefore, merely prescribe minimum penalties, based on the least advanced laws or on definitions already adopted in international conventions;
– some Member States cite the consistency of their system of penalties as a reason for their opposition to harmonising the length of penal sanctions, especially when it is a matter of setting the minimum length of a maximum sentence. The Council has acknowledged the need for a comprehensive review of this matter, which was the subject of a report examined by the (JHA) Council on 6 and 7 December 2001;
– finally, Member States have diverging views on the additional or alternative links which should be established between harmonisation and mutual recognition. It is important that the Council/European Council confirm its determination to undertake, as soon and as ambitiously as possible, the exercise of approximating charges and penalties in the areas defined by the Amsterdam Treaty and the conclusions of the Tampere European Council.
· Determination of the respective jurisdictions of the Community and the Union in criminal matters: as illustrated by the case of environmental protection through criminal law, where a proposal for a Directive tabled by the Commission is in competition with a draft framework Decision brought forward by a Member State, which would oblige Member States to impose criminal penalties for certain forms of conduct prohibited under Community and national law, the Council's work on criminal matters is to a certain extent paralysed by conflicts over legal basis of the "second type".
This matter is of particular concern as it arises in several areas: public procurement, protection of financial interests, insider trading, etc. The Presidency recalls, in this context, its proposal to use, in principle, the formula adopted for combating traffic in human beings, under which it is for Community law – where the Community has jurisdiction – to define conduct and for Union law to impose penal sanctions in the event of infringements. Nevertheless, this should not preclude recourse, if clear need arises, to the sole instrument of the framework decision to formulate the definitions, offences and penalties intended for harmonisation.
· The ratification, transposition and implementation of acts adopted on the basis of Article 34 of the TEU: as the Commission's scoreboard shows, Member States are slow to ratify Conventions drawn up by the Council. Further, no mechanism has been designed to monitor the way in which the Member States implement framework Decisions and Decisions adopted by the Council. It is proposed that from now on the Commission be asked to make arrangements in all cases to submit to the Council reports on progress with transposing the various instruments adopted in the framework of Title VI of the TEU.
· As the legal framework required for setting up joint investigation teams as from 1 July 2002 is on course for adoption, it would be opportune for the Council to reiterate the particular importance it attaches to similar teams being set up without delay to combat terrorism, traffic in human beings and drug trafficking [1].
· The Tampere European Council was anxious in its conclusions to develop a preventive approach in the fields of police cooperation and judicial cooperation in criminal matters. While the creation of a crime prevention network and the setting up of a Forum on the prevention of organised crime constitute two concrete achievements of this approach, work in this area should be actively continued [2].
In addition to rationalisation of working methods, increased resources and the above proposals on mutual recognition and harmonisation, the goal of a genuine European judicial area in criminal matters by May 2004 requires the adoption of more radical institutional measures. As they stand, the Treaties offer two possible courses for exploration: use of the mechanism provided for in Article 42 TEU for certain subjects ("bridge"), and the possibilities opened up by enhanced cooperation on the other, when it becomes impossible to move forward together and at the same time.
V. POLICE
COOPERATION
For various reasons partly connected with the attitude of Member States towards the new tools for police cooperation, it is no exaggeration to say that those tools have not yet produced the added value in operational terms that was expected of them.
· Europol: by the adoption of the many regulations implementing the Europol Convention, the gradual extension of its powers notably in relation to combating money laundering, the adoption of ever-growing budgets, the Council and the Member States have ensured that Europol has got off to the best possible start. However, leaving aside the delay in installing its computer system, Europol is not yet able – despite a staff of over 250 persons and a budget of over EUR 35 million – to provide the Member States' police services with sufficiently refined analyses and information.
The main reason is the reluctance of Member States to provide Europol with sensitive information. The Director of Europol's report to the (JHA) Council on 6 and 7 December 2001 demonstrated that Member States were more willing to provide Europol with information following the terrorist attacks of 11 September 2001.
The extension of Europol's powers to all the forms of crime mentioned in the Annex to the Europol Convention requires the Management Board to adopt a much more selective strategic plan. The work begun under the French Presidency and continued under the Swedish and Belgian Presidencies to define a "vision" for Europol should provide the beginnings of a response. The Council should request the Management Board of Europol to continue its discussions on corporate governance and management control.
In the legislative field, work is under way to identify those articles of the Convention that most need to be amended. This will render binding the two Resolutions adopted under the French Presidency on Europol's participation in joint investigation teams and on the possibility of Europol requesting Member States to initiate investigations. It has yet to be determined whether greater operational powers should be conferred on Europol and, if so, what form of parliamentary control of its activities should be devised and what arrangements should be made for cooperation with Eurojust.
· Police Chiefs Task Force: when it became apparent that the Police Chiefs of the Member States had no forum in which to decide to launch police operations on the basis of Europol analyses, the Tampere European Council decided to set up this Task Force. It has met on four occasions since then. The tasks attributed to the Task Force must be specified. By virtue of their function within the Member States, the Police Chiefs have an important role to play in the preparation, implementation and evaluation of the decisions taken by the Council. While their work has gradually become more specific, it would be better, to meet the expectations of the Heads of State and Government, if it focussed to a greater extent on the planning and execution of actual police operations at Union level. After a running-in period, we must also define the exact place of this Task Force in the Union's institutional architecture, and fine-tune its working methods.
· European Police College: after a difficult start due to the fact that it lacked legal personality and had no permanent secretariat, the College drew up a more targeted training programme consistent with the Council's priorities. The effectiveness of its activities will, however, depend on the European Council's ability to decide on a headquarters for it. Thought must also be given in the not too distant future to the possibility of transforming the network of police colleges into a genuine autonomous agency.
· SIS II: in addition to its function in the immigration field, SIS in its present form is the most operational cooperation tool between the Member States' police services. The need to enhance its functions and modernise its technical capabilities, in order to incorporate the new Member States in due course, also calls for reflection as to the institutional form it should be given. A decision could also be taken on the possibility of contracting its management out to an agency.
VI. EXTERNAL RELATIONS
The Tampere European Council considered it essential for the European Union to develop "a capacity to act and be regarded as a significant partner on the international scene" in the JHA field. At the Feira European Council (June 2000), the Heads of State and Government set out the aims, priorities and working methods for external relations. Coreper and the Council were asked to submit a progress report jointly with the mid-term assessment of the Tampere process. From experience acquired since those two European Councils the following lessons have been learned:
· Growing external pressure: it is important first of all to recognise that the growing influence of the European Union has led to a steep increase in the expectations of our partners in the JHA field that do not always correspond to the priorities set by the Union and are not always matched by the means and resources available. The occurrence of two major crises in recent months has further accentuated that pressure. Faced with the deaths in Dover and the tragedy of the terrorist attacks of 11 September 2001, the European Union proved that it was able to react effectively and swiftly. Combating illegal immigration networks was, prior to the fight against terrorism, the common theme of external action in the JHA field. Implementation of a strategy and a plan of action against terrorism brings together energies and expertise outside the JHA dimension. Nevertheless, the latter remains a key feature. Coreper and the GAC are fully playing their role in monitoring, coordinating, evaluating and giving an impetus to activities. A subsequent, fuller evaluation of these measures will make it possible to draw any conclusions from the action taken.
· priorities and continuity of external action: over and above the reactions to the crises mentioned, the external relations programmes in the JHA sphere implemented since Feira have broadly complied with the desired objective of contributing to the establishment of an area of freedom, security and justice and the priorities, both geographical and thematic, that were set. The main results concern the preparation of the Union for enlargement, the fight against illegal immigration and against organised crime.
The Union's role in the JHA sphere has also become more established amongst the strategic partners: Balkans, Mediterranean countries, Russia and Ukraine, both through the instruments devised (regional programme, action plan, regional cooperation) and through the methods used (funding of MEDA, TACIS and shortly CARDS).
· visibility of JHA external action: the need for integration and cohesion means that, far from developing along its own lines, the external aspect of JHA must serve the main political interests of the Union vis-à-vis the outside world. That requirement comes up against too many different cooperation frameworks: a common strategy and an overall action plan (Ukraine) or a targeted action plan (Russia – organised crime), a stability pact and a stabilisation and association process (Balkans), a common strategy and the Barcelona process (Mediterranean), an informal dialogue "Agenda" alongside the Task Force or the Joint Cooperation Committee (United States, Canada), a High-level Working Party, a common approach or a joint position within international organisations, etc. These different structures are multiplied by the number of players (EU, Council of Europe, United Nations, FATF, G8, Conferences, etc.). When Member States' initiatives are added in, visibility is further decreased. The external relations of JHA would be clearer if they were part of a more integrated, overall vision and approach that was better understood by those responsible at the technical level. The EU could, as it did with regard to combating terrorism, draw up a roadmap against organised crime. There should at least be regular assessments of each priority set out on a list, as is already the practice for the Balkans.
· complexity and methods of JHA external action: more attention should be paid to the external aspect of JHA issues in the Article 36 Committee and SCIFA discussions, with greater involvement of the representatives of the relevant national Ministries. However, the central role of Coreper, the only Committee in a position to assess the Union's objectives as a whole, must be upheld and reiterated. The system adopted at Feira has not been implemented consistently: JHA/RELEX Counsellors were called in only twice immediately after the Feira Council (for matters relating to our relations with China and Russia respectively) before the structure was abandoned and, recently, a procedure was used which, although perhaps more practical, was only implicit in the Feira document, that of involving JHA Counsellors in the discussions of the relevant geographical working parties (COEST for the Ukraine action plan, COWEB for the Balkans). This procedure enables specialists with responsibility for external relations to take advantage of JHA expertise but should not lead to the elimination of the regular horizontal review by Coreper's RELEX Counsellors of the JHA aspects of the Union's external action.
· Controlling immigration must be given greater priority in the Union's foreign policy. The High-level Working Group on Asylum and Migration (HLWG) set up by the Council (General Affairs) at the end of 1998 was established to give form to the comprehensive approach to migration referred to in point 11 of the conclusions of the Tampere European Council. Experience has shown that the implementation of the action plans drawn up by the HLWG can be achieved only in partnership with the countries concerned. The partnerships currently being developed with the Albanian, Moroccan and Sri Lankan authorities bear witness to the relevance of this approach.
It must be acknowledged that the innovatory nature of the HLWG's cross-pillar approach has not been without teething troubles, involving either coordination between the various Community bodies and within national administrations or the financial means required to implement the measures contained in the action plans. In the report it drew up for the Nice European Council, the HLWG described its work as "both promising and difficult", particularly on account of the constraints described above. Although relatively modest at the outset (EUR 10 million for 2001), the existence of a specific budget heading for external action regarding migration should make it possible to achieve progress in implementing action plans. The HLWG should continue implementing existing action plans by stepping up the dialogue with the countries concerned as well as with the other bodies involved (international organisations, NGOs) and ensuring good coordination and consistency between the actions to be implemented. One basic lesson to be drawn from experience acquired to date is the fact that no future action plan should be drawn up except in close partnership with the "target" country. For immigration also, a road map of measures taken and to be taken by all players under the different EU pillars and beyond would provide a integrated and consistent overview of the efforts achieved.
· The development of judicial cooperation in civil matters leads to the extension of Community powers both internally and externally. This consequence, arising from the transfer of certain powers from Member States to the Community, has both legal and political effects. Certain instruments adopted as a consequence of the Tampere conclusions (in particular the Brussels I Regulation) result in difficulties occurring on a regular basis where instruments of a mixed nature that may affect Community law are negotiated in other international fora. Thus, without calling into question the "acquis communautaire" as regards the external powers of the Community, in particular the case law of the Court of Justice of the European Communities, the Commission should submit an overall report on this issue to the Council.
VII. WORKING METHODS
Following the initiative taken under the Swedish Presidency, a very extensive study of working methods in the JHA sector was begun.
Although the study has not yet been completed, a consensus has been reached within Coreper on many of the principles.
The questions which have yet to be examined include the possible restructuring of working parties with the aim of reducing their number, and a debate on their workload – and that of the GSC – in relation to the preparation and discussion of reports on the implementation of third‑pillar instruments.
Pending the conclusion
of these proceedings within Coreper, the following proposals are made by way of
initial measures, to be implemented gradually, aimed at making work undertaken
in the JHA sector more effective:
(a) adopt
the principle of one JHA Council per month, without prejudice to the onus
remaining on the Presidency to determine the need for this on the basis of
progress on the issues.