An european area of freedom, security and justice ? Paving the way from Stockholm …to Rome in 2014

On November 7th the FREE Group submitted to the Chairman and other members of the Civil liberties Committee of the European Parliament its “Call for a true European Area of Freedom Security and Justice”. The main aim of the “Call” was to evaluate what has been done (or not done) since the entry into force of the Lisbon Treaty and the adoption of the Stockholm Programme.
Learning from failures and successes is a pre-condition for the new phase which will start from December 1st, 2014 (at the end of the five-years transitional period for the measures adopted before the Lisbon Treaty in judicial and police cooperation domain) (1).

According to the FREE Group “CALL” from December 2014 onward, EU and its Member States have to close the current gap between the EU legislation and the principles and objectives now outlined in the Treaties and in the European Charter of fundamental rights. Needless to say, the “lisbonisation” of police and judicial cooperation in penal matters, (1) will be the first test of the real will of the member States and of the EU institutions. Unfortunately the current situation is not promising at all and the announced UK opt-out will not make things easier either.
However, a fundamental shift of responsabilty between the EU institutions is also needed to make the EAFSJ more legitimate and credible.

The European Council which has acted until now practically alone when it has adopted the multiannual programmes of Tampere (1999), Den Haag (2004) and even Stockholm (2009). It should now accept the fact that after Lisbon, even if it will maintain its strategic role in this area (art.68 TFEU) it has to play it by taking in account the new EU institutional balance arising from the Treaties and the Charter. The new role of the European Parliament, of the Commission and of the Court of Justice in the EAFSJ policies requires a different relation with the European Council which is no more the “Deus ex machina” but an institution which like all the others should respect the principle of loyal cooperation, abide to the obligations of transparency (art. 15 TFEU), respect of democratic principles, dialog with civil society (art.11 TEU) and, last but not least, be accountable to the EU citizens.
In this perspective a strong interaction with the other Institutions directly elected by the european citizens such the European Parliament and of the national parliaments become unavoidable.
Moreover a stronger integration of the European Council within the “ordinary” EU institutional dialogue will not only re-establish the checks and balances within the EU (required since 1958 by the ECJ “Meroni” ruling) but could also trigger as a substantial effect, a real political debate also betweeen the european political “families” which still prefers hiding themselves behind the EU institutional machinery.
If such an open political debate arises it will be extremely beneficial for the all EU construction and could prove that the EAFSJ policies are no more an area restricted to skilled diplomats and burocrats “elites” shaping the Council and Commission’s Strategies, Conclusions, Guidelines, Roadmaps… .

The future Italian Presidency of the EU Council which will take place in the second semester of 2014, could play a decisive role for a more transparent and democratic phase of the EAFSJ.

However to make this change possible hard preparatory work is needed and should start already now because the EU is a sort of “super carrier” which requires time and skillfulness to change its direction. Moreover as soon as this change of strategy will become apparent it will inevitably create the opposition inside the Council, the Commission and even in the European Parliament as it happened for the “access to documents” file. It is well known that soon after the “Turco” ruling of the Court of Justice which has required more transparency in the Council and Commission these institutions have developped a clear opposite strategy to “protect” their old decision making procedures.

This kind of turf wars between the EU institutions could be extremely dangerous from an european citizen’s perspective because the EAFSJ policies should now be negotiated and implemented in full compliance with the EU Charter. They have become the core of a new European Public order which can be considered democratic only if the EU citizens and their representatives could influence both the national and European level. This objective was crystal clear when the Charter has been negotiated, and it has been reiterated also by seminal ruling of national Constitutional Courts, but since then it looks fading away from the EU legislative works and debates.

However this sort of resilience of the “Maastricht style” even after the Lisbon Treaty and EU Charter risks to be a slippery slope for the EAFSJ policies.

For thirty years the EU has underestimated the close relation between the EURO and a true EU Economic policy; let’s hope that the same mistake will not be repeated for the relation which has now to established between the EU Charter and the relevant EAFSJ policies. They should no more evolve, as it is still now the case, in a parallel world separated from the other EU policies notably in the economic and social sphere. In politics (as in nature) everything is linked. Again, the role that the future Italian Presidency could play will be extremely important because it will be at the beginning of a new EU legislature as well as of the new 18th months Trio Presidency cycle which will cover from 1st of July 2014 to December 31st 2015.

By framing the new global EU roadmap bringing together the EAFSJ policies with the new EU 2020 agenda the Italian Presidency can make the difference by setting a new bridge on (still) troubled waters.

EDC

1. See artt 9 and 10 of Protocol 36 on “TRANSITIONAL PROVISIONS CONCERNING ACTS ADOPTED ON THE BASIS OF TITLES V AND VI OF THE TREATY ON EUROPEAN UNION PRIOR TO THE ENTRY INTO FORCE OF THE TREATY OF LISBON

Article 9
The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties.
The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union.

Article 10
1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.
2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.
3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.
4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.
The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.
5. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen Acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area
of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.”

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