MONITORING AND EVALUATION MECHANISMS IN THE FIELD OF EU JUDICIAL COOPERATION IN CRIMINAL MATTERS

Maastricht, 2/3 June 2009

‘The possible role of the European Parliament in evaluating EU judicial cooperation in criminal matters’

By Emilio De Capitani ([1])

Introduction

Ladies and Gentlemen, I would like to warmly thank Maastricht University and the NL Justice Ministry for having invited me to this very important and interesting Seminar.

The creation of a new additional method for the evaluation and monitoring of the EU Freedom Security and Justice Area (FSJA) related policies with a view to increasing the mutual trust between the Member States is very appropriate in the perspective of the foreseeable entry into force of the Treaty of Lisbon which will bring about important changes for the European Union mission in this area.

Bearing in mind the previous interventions which were very interesting, I will focus my presentation on the following issues:

- First, I will present the latest European Parliament (EP) recommendations to establish a multi-layer level evaluation and monitoring method which can be useful at the same time for the European and the national legislation in criminal and security matters.

- Secondly, I will focus on the specificities of the current EU legislative proceedings within the FSJA domain and on the possible improvements having in view the Treaty of Lisbon;

- Finally, I will suggest a possible legal basis to build an additional impartial and objective evaluation of the EU policies dealing with the European criminal area if the Treaty of Lisbon will enter into force.

I. The EP recommendations to the Council on a possible neutral evaluation of the EU policies in criminal matters

It is just recently (7th May 2009) that the European Parliament adopted its position on the criminal justice area with an overwhelming majority. The main elements of the resolution([i]) will be developed below.

…lack of comprehensive, constant and clear monitoring of EU policies in the field of criminal justice

First of all the EP acknowledges that "no comprehensive, constant and clear monitoring of EU policies in the field of criminal justice, or of the quality and efficiency of justice, is currently in place within the EU". Furthermore, the EP considers this situation very worrying as "such monitoring would be fundamental for the "EU decision-makers" when conceiving the most appropriate legislative actions while at the same time enhancing mutual trust in each other's judicial systems.”

Needless to say that the availability of pertinent, updated and coherent information is of the foremost importance and represents the minimum requirement before negotiating and adopting any new EU legislation notably in the criminal justice domain where the role of the EU is widening more and more after 11th September 2001 in the so called "third pillar" as well as in the "first pillar" after the ECJ ruling of 13th September 2005. This ruling states that “the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, the Community legislature may require the Member States to introduce such penalties in order to ensure that the rules which it lays down in that field are fully effective" (see, ([ii]) to that effect, Case C‑176/03 Commission v Council, paragraph 48 as well the C-440/05 on ship-source pollution par. 67) ([iii]).

This evolution of the EU legislation will be confirmed after the entry into force of the Treaty of Lisbon as the unanimity in Council will no longer be required and the EP will be associated in the elaboration of legislation through the co-decision procedure.

…a possible three tiers evaluation model

Being conscious of its new responsibilities and of the need to avoid as much as possible conflicts between EU and national legislation, the EP resolution puts forward, to my understanding, three different levels of evaluation of the FSJA policies. A first level of evaluation should monitor the relationship between the EU and the national legal orders, the second should monitor the consistency of specific EU strategies and the third the potential or actual impact of specific legislative measures.

..first monitor the EU and the Member States' legal order

The first level of evaluation and monitoring concerns the evaluation of the legal systems of the Member States in light of the EU legal order. This kind of evaluation is already well known as it is carried out before the accession to the EU and in some cases takes place even in the immediate period after the accession. Following the entry into force of the Lisbon Treaty it can be argued that this kind of evaluation should be generalised in the interest of the EU and (even more) of the Member States as a permanent background activity for all Member States when FSJA policies are concerned.

In fact, Article 67 of the TFUE states that “the Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.”

Moreover, Article 82 of the TFUE ([iv]) foresees that future EU rules “..necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension… shall take into account the differences between the legal traditions and systems of the Member States.”

The same article gives a special emphasis to the protection of “fundamental aspects” of a national criminal justice system, by giving the possibility to each Member State to refer a draft EU measure to the European Council.

This special attention to evaluation and monitoring of the EU FSJA related policies is justified by the fact that the European legislation could affect not only the relationships between citizens or the economic actors but also the very core of the national public order.

But in order to take “into account the differences between the legal traditions and systems of the Member States“, the EU should also be aware of them and regularly follow their evolution. This is the stated ambition of the recent Council Resolution ([v]) which created a network of correspondents to give effective access to the national legislation in criminal matters of other Member States. In the same line the EP resolution considers appropriate that the Council “…establish, together with the Commission and with Parliament, a committee of wise persons (jurists) with the task of preparing a study on similarities and differences between the criminal law systems of all Member States and submit proposals for the development of an EU criminal justice area that will balance effectiveness in criminal proceedings with safeguarding individual rights…”

I personally think that the interaction between the fundamental principles of the European Union and of each Member State is an essential element of the European legal order as well a fundamental aspect of the relationships with the European citizens and that the evaluation to be done at this level could be conducted by highly qualified experts in constitutional matters. In this way it will be possible to take into account the possible implications of the coexistence of different criminal systems such as the civil and common law legal traditions as well the need for a multi-level protection of fundamental rights.

This aim is also apparent from the EP resolution where, paying a tribute to the Council of Europe experience in this domain and to the evolving European case law the EP considered that the new "evaluation system" should focus also on the "..quality and efficiency, integrity and fairness of justice, taking also into account the level of implementation of ECJ and ECHR case-law by Member States,".

…second, monitor the consistency of the EU policies

The second level of evaluation is more of a political one since it concerns the internal coherence of some specific EU policies (such as the general strategy against terrorism and the one aimed at increasing mutual recognition at EU level).

Since Tampere these evaluations have been conducted in correspondence with general debates on Council or Commission’s conclusions, resolutions, green papers and notably during the annual parliamentary debates dealing with the progress of the FSJA currently foreseen by Article 39 of the TEU. It is therefore worth underlying that the EP has judged this kind of debates extremely unsatisfactory and pointless due to the very generic information offered by the Council Presidencies and by the Commission.

Unfortunately also the dialogue with the national parliaments was not particularly helpful due to the lack of comparable data and dialogue among the Members States.

How to revive the interest of these exercises?

According to the EP it is necessary "..that evaluation system should take stock of existing evaluation systems without duplicating effort or results, and should give an active role to Parliament," and to do so it will be worth to ".. set, together with the Commission and with Parliament, in cooperation with the relevant Council of Europe Committees, such as the CEPEJ, and with the existing European networks operating on criminal matters, an objective, impartial, transparent, comprehensive, horizontal and continuous monitoring and evaluation system of the implementation of EU policies and legal instruments in this area".

The EP also considered that the new "Policy Evaluation System" should be modelled according to a peer evaluation system as it is already the case for the Schengen cooperation and the implementation of the anti-terrorism action plan and should avoid duplication of and foster synergies with existing evaluation systems at COE or OCDE level taking in due account that these International Organisations have a slightly different structure and mission than the EU.

…and third monitor specific legislative measures

The third level of evaluation would affect specific legislative measures. Indeed, according to the above-mentioned resolution ".. a public consultation process through the appropriate procedures, including impact assessments, should take place before proposals and initiatives for the adoption of EU legislative instruments are tabled by the Commission or the Member States".

This request is perfectly consistent with the provisions of Article 11 of the TEU ([vi]). To my understanding this pre-legislative consultation process should be launched not only by the Commission but also by the Member States when launching a new legislative proposal in criminal and police matters. I will add that all the positions taken in this pre-legislative phase should be known even if they differ from the decision taken in the formal legislative proposal.

Under that perspective the EP resolution suggests that "..a constant exchange of information, practices and experience among judicial authorities in the Member States makes a fundamental contribution to the development of an environment built on mutual trust, as the remarkable results achieved with the exchange programme for judicial authorities show." In this perspective "…the newly established "Justice Forum" might make an important contribution to the ex-ante evaluation stage of EU legislative initiatives, in order to ensure coherence and consistency in EU action while at the same time safeguarding fundamental rights".

Overall these EP recommendations seem to me very pragmatic especially when it is stated that “…the evaluation should not be theoretical but rather should assess the impact of EU policies on the ground and on the daily management of justice, as well as the quality, efficiency, integrity and fairness of justice”.

…therefore evaluation should be both at political and technical level…

According to the EP there is no pre-established model to be implemented.

Therefore "priorities, scope, criteria and methods.." of this evaluation system should be built at “both a political and a technical level” and result from “..a mixed approach composed of both statistical and legislative information and of an assessment .of the application of EU instruments on the ground, - collect comparable data and take stock, insofar as possible, of already available data… “.

Let me stress the clear EP reference to the need for a meaningful evaluation method taking account of both "political and technical" aspects. The importance of a public debate on the results of an evaluation is also stressed by the EP resolution, a requirement according to which any evaluation system should be "capable of producing reliable reports at least once a year" and “involve Parliament closely in both the political and technical levels”.

Such a reference to the political and technical perspective should bring us back to the very beginnings of the evaluation of public policies which in the West dates back to the 1960' when the US Congress examined the impact of the social policies launched under the Kennedy and Johnson Presidencies. Since then it was clear that any kind of political evaluation could not be limited to technical aspects if it should be helpful for a public institution and/or legislator in their mission to correct as soon as possible errors or improve the quality of the legislation and of public interventions. In the EU framework this role is played notably by the Commission but it could happen that the Council and/or the EP want to follow a different approach of the one proposed by the Commission so that the latter could be tempted not to be neutral in its assessment.

This could open the way also for the intervention of a "third" party which should be credible and independent such as the Court of auditors or even an EU Agency such as the Fundamental Rights Agency. In this context I would like to draw your attention to the fact that the EP also took advantage from the evaluations done at national level by national Parliaments such as the House of Lords or even by the US Congress. The experience of the latter in evaluation methods and notably on its "Randomized Controlled Trials (RCTs)"(^[vii]) or even the daily role played by the U.S. Government Accountability Office (GAO) ([viii] ) is worth noting and taking into account. As you know this Office is well known as "the investigative arm of Congress" as it "...supports the Congress in meeting its constitutional responsibilities and helps improve the performance and accountability of the federal government for the benefit of the American people". In the current state of the European integration even after Lisbon a similar structure would be too ambitious but this should not prevent the Member States from playing a more proactive role as I will suggest it in the second part of this intervention.

To close this first part let me say that, more or less, the core of the recommendations in the EP resolution fit very well with the general trend of the previous contributions made during this Conference as well as with the suggestions made by the Dutch Minister of Justice who launched the debate on the necessity of an additional independent evaluation mechanism for the FSJA policies at the interinstitutional level.

My only personal reservation concerns the "all-technocratic” and “procedure-focused” approach of some of the speeches, which seems to disregard the political dimension of any pre or post legislative evaluation and notably the role of the European and National Parliaments.

As the American experience teaches us, these evaluation mechanisms could not and should not be separated by the legislative and political making process and the co-legislator should have direct access to the relevant information and data necessary to exercise its duty.

II. The EU legislative process in the FSJA domain

Turning to the second point of my intervention I will focus on the specificities of the current EU legislative proceedings within the FSJA domain and its possible improvements in the perspective of the Stockholm Programme and, hopefully, of the Treaty of Lisbon. To make things simpler and less frustrating for the European Parliament I will concentrate notably on co-decision procedures even if in the criminal and police domain the co-decision will be applicable only after the entry into force of the Treaty of Lisbon.

There is no doubt that for the European Parliament the co-decision in the criminal and security area will be a new important challenge as long as these domains are (and remain) a domain fiercely protected by the Member States which also keep the intervention of the European Commission as much as possible at a rather low level.

Being unable to directly collect the information from the ground, the EP and Commission are inevitably dependent on the Ministers' willingness to offer real figures and data as they can be collected in each national administration. At national level therefore there is a comprehensible reluctance in sharing information that can be interpreted as sign of bad administration and which can be politically exploited against the Government.

…a anecdotic and unbalanced access to legislative relevant information

Having in mind the comments made above, the legislative process at EU level remains very unbalanced even if all the three institutions will be jointly accountable to EU citizens, especially in case of the adoption of "bad legislation" ([ix]). I am maybe wrong but after the entry into force of the Treaty of Lisbon, with the generalisation of the EP legislative powers the scapegoat of a bad legislation for the EU citizens will no longer be the "Brussels bureaucrats" but directly the EU institutions and probably the European Parliament itself.

To avoid this possible negative fall back it is more than likely that the EP will do its outmost to obtain from Council and Commission every information which could help its members adopt well founded EU legislation notably in politically sensitive domains such as FSJA related policies (eg: the management of migration policies or the creation of an European justice area in criminal matters).

…a still unsatisfactory level of loyal cooperation between the EU institutions..

The first EP strategy is to encourage the other institutions and in particular the Council to be more transparent in its own preparatory works when it acts in its "legislative capacity"([x]). The move from a “diplomatic” method to a “democratic” one is very slow as it started in 1992 after the first Danish referendum, but is ongoing and will be confirmed by the Treaty of Lisbon which imposes public debates on legislative acts also in the Council.

There is no doubt that this evolution has been pushed by the EP and by the ECJ notably in the "Turco" Case ([xi]) which slammed the Council attitude which refused to give access to its background documents including the legal services reasoning on the legal basis of future legislation ([xii]). Lets then hope that after Lisbon also the interinstitutional dialogue will no longer be anecdotic and frustrating as it has been since now and that the EP will no longer be confronted with the experience it had during the six years “saga” of the “Passenger Name Record” where the EP is still awaiting from the Council and the Member States factual data on the added value of these data to counter terrorism.

However, it must be observed that a better dialogue and exchange of information between the European Parliament and the Council during the legislative process is currently possible due to the fact that in the FSJA domain the legislative negotiations are closed already at the first reading of the European Parliament.

..working together: the new phenomenon of the EP “first reading” agreements..

This is a rather unknown phenomenon so please forgive me if I will elaborate on its description as it affects not only the EP but also the internal Council and Commission dynamics. Let me recall that for decades the content of a future EC legislation was mainly the result of a negotiation between bureaucrats and diplomats at national and European level and even now less than 10% of the Council decisions are taken after a ministerial debate during a Council meeting.

After the Treaty of Maastricht and the first co-decision of the European Parliament the situation has deeply changed as the association of the EP to the decision making process did not only add a new actor but also a new way of negotiating and interacting with the external world (lobbyists included as well civil society representatives) when framing and evaluating EU legislation.

This has become even more obvious after the 2004 enlargement when the increasing role of the European Parliament has been accompanied by an increasing difficulty of the EU Council to build between twenty seven Member States a qualified majority or to control possible potential blocking minorities[xiii].

The Council found its way out from a possible blockade by pushing the European Parliament towards an interinstitutional agreement already at its first reading of the co-decision procedure as it was possible after the Treaty of Nice in 2000. It has to be noted that, from a formal point of view a “first reading agreement” requires only a simple majority in the EP, a qualified majority in Council and the Commission’s support to the Council qualified majority ([xiv]). It should not be surprising that under such flexible conditions the first cases of “first reading agreements” took place already in 2001 in the FSJA ([xv]).

Since the 2004 enlargement and the difficulties encountered at Council level it has been increasingly easier to meet these conditions with the Commission support (which will never dare to block a potential agreement of the co-legislators). This is proven by the figures of the “first reading agreements” which rose from 33% before 2004 to 67% at the beginning of the current legislature (and 85% in the FSJA domain during the last two years).

…the negotiation dynamics in the EP…

What happens during the “first reading agreements”? Formally all the political negotiations take place in the framework of the EP’s preparatory works where are virtually convened in the same working space the Member States represented in the Council working groups, the Council Presidency as spokesperson from the Council side, the Commission and the EP rapporteur / shadow rapporteurs who refer back to their political groups.

During these meetings different political dynamics take place. On one side the EP tries to build its simple majority between the political groups and define a political orientation which can be supported by a qualified majority in the Council. Complementary to that move, national representatives in the Council try to influence the position of the EP’s political groups by invoking a sort of national solidarity([xvi]).

Therefore the weight of national interests in the EP is not as heavy as it is in the Council so that there is a strong chance that a possible compromise between the initial positions of the Commission, of the Council and of the Parliament takes shape.

This "third way" is very often opened by external interventions such as independent authorities at European and national level (such as the European Data Protection Supervisor, the Fundamental Rights Agency , the UNHCR, Article 29 Working Group, Europol, Eurojust etc) national parliaments, academic experts (such as the Odysseus network for migration policies), civil society representatives (Amnesty International, Statewatch, Human rights Watch..) and even lobbyists who take advantage of the public debates in the parliamentary committees in order to give their own view of the situation in the Member States and try to influence the position of the political groups.

Needless to say that some external interventions have sometime questioned the viability of the data on which a Commission or a Member State legislative initiative was build on. Moreover, even the impact assessments of the Commission (which in principle should motivate in an objective way all possible alternatives) have not been considered conclusive or satisfactory. In some cases the European Parliament, following the US Congress example, launched its own alternative impact assessment.

This move was mirrored even by the Council which has recently requested the Fundamental Rights Agency a neutral assessment of the Commission’s proposal on the EU PNR system.

In some cases the European Parliament has even conducted several visits in the Member States to ascertain the real conditions of reception of asylum seekers by visiting several reception centres and meeting the local, regional and national authorities as well as NGOs and migrants

..need to improve also the loyal cooperation between the Member States and the EU institutions..

In the context of the evolutions taking place in the negotiation making process where alternative assessments of some phenomena are publicly debated during the EP first reading it will be very uneasy for national administrations to hide the information related to new legislative proposals. As it has already happened in several cases national authorities will also be questioned by their national Parliaments who are more and more keen to follow the evolution of European initiatives in the FSJA and to conduct themselves some very instructive comparative studies.

On the crossroad of all these contacts and reciprocal influences, the "classical" way of interaction between the institutions and the Member States concerning the implementation of the EU policies becomes more and more outdated. It is therefore hardly defendable before an ordinary EU citizen that fifty years after the entry into force of the founding Treaties the Commission should be obliged to launch every year dozen of infringement procedures for the simple fact that the Member States failed to notify the national measures implementing the EU/EC rules which in principle should be public as these rules affect the EU citizens' freedoms.

…a foreseeable increasing demand of the EU legislator to intervene…

I am personally convinced that in the next years all these shortcomings will be overcome as the pressure on the EU to act in the FSJA will probably increase even if according to a recent research of Professor Jorg Monar, more than one thousand acts of hard-soft law have already been adopted in the last ten years in the FSJA domain.

In fact the EU institutions are only recently grasping the real dimension at EU level of some phenomena such as legal or illegal migration or even the trend of specific crimes (as it is only in the last years that Europol has started an overview of the main trends of organised crime or terrorism by example). This new European perception is fostered by some external and internal factors linked to the economic, social and legal globalisation processes as well by the internal implicit evolutionary logic of some EC policies (think at the sixty years evolution from the freedom of movement of workers now complemented by the freedom of movement of European citizens or to the twenty five years evolution from a Schengen cooperation originally focused on the control of the external borders and now turning in a full fledged general police alert tool...).

…but in more coherent and democratic framework shaped by the Treaty of Lisbon..

This evolving role of the EU is well perceived by the Treaty of Lisbon notably in the FSJA related policies. We all know that the European Union after the Treaty of Lisbon will not just widen its competencies and simplify an outdated double legal regime by merging the so-called first and third pillars, but will also modify its very mission.

The EP has already considered that the emphasis given by the Treaty of Lisbon to fundamental rights, the clear reference to democratic principles (Articles 9 to 12 of the TEU) and the enhanced role of political parties as well as the European citizenship (Articles 18-25 of the TFEU) together with the decision to place the individual at the centre of the new European Union is not only simple rhetoric and wishful thinking. Nor will this be the case for the EU obligation to “…observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies” (Article 9 of the TUE). As far as the Member States are concerned it will not be only a question of granting a loyal cooperation to the EU (ex Article 10 EC Treaty and 4 of the new EU Treaty) but also to actively build a common project where each national authority (eg: judges and national parliaments)([xvii]) could play a “European” role in the interest of the citizen enjoying at the same time the national and European citizenship.

In this new legal framework a peculiar role will be played by National Parliaments which, according to Article 12 of the TEU shall “.. contribute actively to the good functioning of the Union” notably when FSJA policies are at stake.

This involvement of National Parliaments is of the utmost importance in the FSJA policies not only in order to improve the democratic legitimacy as it was asked since 1993 by the German Constitutional Court with its Maastricht Urteil ([xviii] ) but also to build a strong interaction between the European Parliament and National Parliament. This involvement will take place by building a sort of common working area as the one shared by the national and European bureaucracies when working together in the Council and Commission working groups.

III. A possible legal basis to build an additional impartial and objective evaluation of the EU policies dealing with the FSJA related policies

Turning to the third part of my intervention I want to raise some ideas on the manner in which the EP as a co-legislator and the National Parliaments in their new capacities, could, after the entry into force of the Treaty of Lisbon, play a better role in the legislative and political evaluation in the FSJA domain.

The obvious starting point for such a joint evaluation system will be the new Article 70 according to which “without prejudice to Articles 258, 259 and 260 (NDR Commission infringement procedures and Court judgements), the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.”

No one can deny that this new article could dramatically improve the way the FSJA should be evaluated. Nonetheless, two clear weaknesses should be highlighted: one on the content and the second on the procedure.

a) on the content Article70 clearly states that the real scope of the evaluation will result from a negotiation between the Council, the Commission and the Member States and the European Parliament and the National Parliaments could not influence the definition of the scope and should only be the addressees of the “content and results of the evaluation”.

I personally think that as the European Parliament plays the role of co-legislator at the European level and the National Parliament the legislators at national level, they should have a bigger role in this exercise.

Also think how for instance national parliaments could evaluate the fulfilment of the subsidiarity criteria if they don't have the possibility to work on comparable data. Therefore the "subsidiarity" tests already conducted at national level have shown that these evaluations risk being meaningless if not founded on a general EU perspective.

b) on the procedural aspects the future Council Decisions defining the future "evaluation" measures, will be adopted by an intergovernmental method, which should have been abandoned with the suppression of the so-called “third pillar”. Moreover, the new evaluation mechanism will be a form of administrative cooperation (like the one described in Article 74 TEU), which seems hardly credible as it will be done under the control of the administrations, which should in turn be... controlled.

May I remind you that when recently the EP was faced with a similar situation, it has refused to endorse the Commission’s proposal to revise the evaluation mechanism of the Schengen System as it was only founded on the administrative cooperation (Article66 TEC) and not on the legal basis which founded the Schengen system itself.

Consulted by the LIBE Parliamentary committee the EP legal service considered that if the Commission proposal was legally sound, an alternative approach was also possible by amending the basic rules of the Schengen system as the evaluation process is an "ancillary" dimension of the Schengen System.

I think that the need to merge in the same legal act the definition of the objectives and methods to evaluate their achievement is even stronger in Article 70 TFEU where a parliamentary dimension is at stake. May I also add that the Treaty of Lisbon requires a co-decision procedure to define, according to Articles 85 and 88 of the TFEU how the National Parliaments could evaluate and monitor in association with the EP, agencies such as Europol and Eurojust. Why then a more democratic solution for evaluating agencies instead of general policies?

A reasonable solution to overcome this procedural weakness of Article 70, could be to widen the scope of the future monitoring and evaluation mechanisms by connecting to them "other dots” as it could flow from Article 12 (lett. C) of the TUE where Article 70 of the TFUE (additional evaluation system within the JHA) Articles 85 and art. 88 (dealing respectively with the EP-NP “political” oversight of Europol as well as the activities of Eurojust) are presented in the same framework.

This approach will be coherent with the arguments raised above in favour of intertwining the definition of the objectives with the evaluation of their achievements.

Formally Article 70 of the TFUE should be completed by the legal basis founding the legislative powers of the Institutions. May I note that a reference to multiple legal basis for the same legal act is perfectly possible according to the Court of Justice when a measure "simultaneously pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure must be founded on the corresponding legal bases" ([xix]). It has also to be noted that by adding other legal basis the voting majority in the Council will not be changed and the intervention of the EP in co-decision will strengthen the legitimacy of future “measures”.

I would like to conclude my contribution by recalling that the EP raised the same argument during the negotiations of the EC regulation which created the Fundamental Rights Agency ([xx]). The EP request was (surprisingly) supported by the Council Legal Service but was refused by the Commission, which was not keen on giving the EP a stronger role in the regulation shaping the mission of the new Agency. At that time the EP did not challenge the Commission’s position before the Court of Justice because it considered that the situation would have been solved by the Constitutional Treaty.

With the Lisbon Treaty we are now in a similar situation and it is worth noting that in their multi-presidency programme the FR, CZ and SE Council Presidencies already announced that the revision of the Fundamental Rights Agency Regulation should be launched before the end of 2009.

A possible scenario could be that the future "evaluation and monitoring" process might be founded on Article 70 of the TFUE associated with the legal basis of the FSJA related policies so to update the FRA regulation by taking into account the role and the need of National Parliaments, as well. By doing so not only the problem of the evaluation procedure could be addressed but also that of the tools to be used (the Agency itself could establish appropriate temporary/permanent networks according the object of the evaluation). It is worth noting that the Agency has already been called to evaluate the situation related to the protection of minorities in Member States and has been involved even during the preparatory phase of the establishment of the EU-PNR legislative proposal. Moreover the Agency will feed the annual EP debates on the FSJA area and the protection of fundamental rights in the EU by dedicating specific chapters to the judicial criminal area.

Last but not least it is already in the FRA mandate to produce thematic or specific reports to be submitted to the EP, the Council and the Commission, which could exploit plenary debates and even, if needed, the launch of the “alert” procedure foreseen by the Article 7 of the TEU, but a debate on this issue will require at least another Seminar….

Thank you very much for your attention,

EDC

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[1] Head of Unit, Secretariat of the European Parliament Committee on Civil Liberties, Justice and Civil Liberties. .The content of this intervention is under the responsibility of the author and does not constitute an official position of the Institution.

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[i] See: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009-0386&language=EN&ring=A6-2009-0262

[ii] See the judgments at the following address: http://curia.europa.eu/jcms/jcms/j_6/home and notably : See the Judgement : http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003J0176:EN:HTML

[iii] The Commission issued a Communication to the European Parliament and the Council "on the implications of the Court's judgment of 13 September 2005 (http://eur-lex.europa.eu/LexUriServ/site/en/com/2005/com2005_0583en01.pdf) COM (2005) 583 final/2). That Communication sets out the Commission's thinking on what the Court's judgment means. There is an annex which lists all the other measures that are affected by the judgment. The European Parliament's Committee on Legal Affairs issued a (http://www.europarl.europa.eu/omk/sipade3?PUBREF=-//EP//NONSGML+REPORT+A6-2006-0172+0+DOC+PDF+V0//EN&L=EN&LEVEL=2&NAV=S&LSTDOC=Y) report also, followed by a (http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2006-0260+0+DOC+XML+V0//EN&language=EN) Plenary resolution of June 14th 2006. The French Assemblée Nationale issued a (http://www.assemblee-nationale.fr/12/pdf/europe/rap-info/i2829.pdf) "rapport d'information" on January 25th, 2006. And there are some interesting comments made by Judge Puissochet and Advocate General Léger to the European Committee of the French Senate (http://www.senat.fr/europe/r22022006_1.html) here. More recently, on July 28th 2006, the House of Lords EU Select Committee issued a compendious and interesting report on (http://www.publications.parliament.uk/pa/ld200506/ldselect/ldeucom/227/227.pdf) "The Criminal Law Competence of the European Community". (from: "http://eulaw.typepad.com/eulawblog/2006/08/case_c17603_cri.html"

[iv] (TFUE) Article 82

(ex Article 31 TEU)

1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to:

(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;

(b) prevent and settle conflicts of jurisdiction between Member States;

(c) support the training of the judiciary and judicial staff;

(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.

They shall concern:

(a) mutual admissibility of evidence between Member States;

(b) the rights of individuals in criminal procedure;

(c) the rights of victims of crime;

(d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.

Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.

3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

[v] A Resolution of the Council and of the Representatives of the Governments of the Member States, on the establishment of a Network for legislative cooperation between the Ministries of Justice of the European Union has been published in OJ C 326, 20.12.2008. The Resolution acknowledges that obtaining information about foreign law may prove unpredictable and complicated; therefore, a network for legislative cooperation should be set up to give effective access to the national legislation of other Member States. Unfortunately, although the Council’s Resolution bears in mind the “objective of providing [European] citizens with an area of freedom, security and justice”, she addresses the problem mainly regarding Ministries of Justice concerns (first Whereas: “Knowledge of the legislation of other Member States or even of certain third countries is an essential tool for the Ministries of Justice of the Member States of the European Union, in particular for drafting legislation and for transposing law of the European Union”). They (the Ministries of  Justice) will be the senders and addresses of the requests for information. To build the net, each Member State should designate a correspondent -or a limited number of other correspondents if this were considered necessary because of the existence of separate legal systems or the domestic distribution of competences. The Network should in particular provide its members with coherent and up-to-date information on legislation, and with case-law on selected  subjects; make accessible the results of comparative law research carried out by or for the Ministries of Justice of each State in fields of law falling within the sphere of competence of those Ministries, including in the context of reforms carried out by the Member States or of transposition of law of the European Union; and be aware of major legal reform projects. The Resolution does note indicate any closing date (not even an approximated one) for the creation of the network. (taken from : http://conflictoflaws.net/2008/a-netwoork-for-legislative-cooperation/ )

[vi] Art. 11 TEU (as modified by the Lisbon treaty) "1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. 2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent...."

[vii] See for instance the 2006 US Congress Research service report : http://digital.library.unt.edu/govdocs/crs/permalink/meta-crs-9145:1

[viii] See: http://www.gao.gov/

[ix] See the Bourlanges report already in 2004 : http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2004-0022+0+DOC+XML+V0//EN

[x] This expression used by art. 207 par 3 of the EC Treaty dealing with the Council competences but it apply to the EP when is associated in the legislative making process “..For the purpose of applying Article 255(3), the Council shall elaborate in these Rules the conditions under which the public shall have access to Council documents. For the purpose of this paragraph, the Council shall define the cases in which it is to be regarded as acting in its legislative capacity, with a view to allowing greater access to documents in those cases, while at the same time preserving the effectiveness of its decision-making process. In any event, when the Council acts in its legislative capacity, the results of votes and explanations of vote as well as statements in the minutes shall be made public.”

[xi] See : http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0039:EN:HTML

[xii] See for instance the Cappato resolution on the lack of relevant information and transparency : http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2009-0022

See: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0039:EN:HTML

Judgment of the Court (Grand Chamber) of 1 July 2008 in joined cases C-39/05 P and C-52/05 P

[xiii] The enlargement didn't have the same effect in the EP as the number of the political players is remained practically the same as well the possible political combinations to build a majority.

[xiv] Otherwise according to art. 250 of the EC Treaty the unanimity of the Council will be required.

[xv] The first cases of « first reading agreement » have been Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (see: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R0045:EN:HTML) and Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (see: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R1049:EN:HTML )

[xvi] It has also to be noted that when issues in the FSJA are particularly complex the EP does not really launch the negotiations with the Council before the representatives of the Member States have had their own “tour de table” and raised the reservations of each Country on the draft legislative text.

[xvii] According to a consolidated CJCE jurisprudence national judges should considered “European judges” when interpreting and applyng the EU rules .

[xviii] Decision of the German Federal Constitutional Court of the 12 October 1993, 2 BvR L 134/92 and 2159/92.

[xix] Case C-338/01 Commission v. Council [2004] ECR I-4829 para. 56. See also, inter alia, Case C-336/00 Huber [2002] ECR I-7699, paragraph 31; Case C-281/01 Commission v Council [2002] ECR I-12049, paragraph 35, Case C-211/01 Commission v Council, paragraph 40, and Opinion 2/00 [2001] ECR I-9713, paragraph 23

[xx] See the legislative history of this regulation: http://www.europarl.europa.eu/oeil/file.jsp?id=5261032