Transforming the EU in a freedom security and justice area: first Council ideas for a Strategic Agenda (2019-2024)

This is a joint discussion paper for both justice and home affairs submitted by the Croatian Presidency to the other delegations and to be debated at the Informal JHA Council in Zagreb on January 23rd-24th

Working  Session  I.

Looking ahead to the area of freedom, security and justice

In June 2019, the European Council adopted the Strategic Agenda 2019-2024 to guide the European Union’s work in the next five years. Its first priority, ‘protecting citizens and freedoms’, is particularly relevant for Justice and Home Affairs, as is its second priority on the ‘economic base’ and the ‘European model for the future’.

As indicated in the concluding section of the Strategic Agenda, the Council is to integrate these priorities into its work.

The first step in the implementation of the Strategic Agenda in the field of JHA was a reflection process initiated by the Romanian Presidency and further developed by the Finnish Presidency.

Several important debates have taken place at preparatory and ministerial level on the basis of reflection papers covering a wide range of JHA topics.

The Finnish Presidency wrapped up this important work in December 2019.

The outcome of this extensive process and the numerous projects that emerged from it are reflected in various documents addressed to all Member States and the Commission by our Finnish colleagues.

The Croatian Presidency has inherited the results of this reflection process and considers it essential to continue looking ahead and start preparing the ground for strategic guidelines under Article 68 TFEU2 which will take forward the Strategic Agenda and facilitate its implementation.

The first topic mentioned in the Strategic Agenda refers to fundamental rights, the protection of our democratic and societal models and the rule of law. Hence, a priority for our future work should be values and the rule of law.

The Strategic Agenda also mentions our common values as ‘the foundation of European freedom, security and prosperity’. Debates within the Council have demonstrated a growing   concern that respect for these values is being challenged.

This hampers the proper application of EU law and instruments that are based on mutual recognition.

The second priority could therefore be to find ways of restoring mutual trust.

The third topic developed in the Strategic Agenda relates to the integrity of our territory, understood to mean control of our borders, the development of a functioning migration policy, and the fight against terrorism and cross-border crime.

A third area for consideration could thus be protecting the integrity of our common European space.

Finally, the first part of the Strategic Agenda mentions the need to protect our societies from malicious cyber activities and acknowledges the critical importance of more cooperation, more coordination, more resources and more technological capacities.

In addition, the second part, related to economic development, refers to the digital transformation and the need to shape our policy in a way that embodies our societal values, promotes inclusiveness and remains compatible with our way of life. We would therefore suggest that the fourth priority should be to find ways of mastering artificial intelligence and new technologies.

To inform our discussion, you will find attached a thematic annex which covers, for ease of reference, most of the policy areas explored in the reflection process conducted by previous presidencies.

As we try to identify possible ways forward in our policy field, the Croatian Presidency suggests organising our discussions around these four cross-cutting issues and focusing our attention on how to organise our work, tools and structures to achieve our common objectives.

Ministers are invited to discuss how these four cross-cutting issues (values and rule of law, mutual trust, protecting our common European space, and new technologies) can be best addressed in order to deliver on the Strategic Agenda and the priorities developed in the thematic annex.

ANNEX

Developments in the area of freedom, security and justice for the period 2019-2024

Introduction

Following the Treaty on the European Union (the Maastricht Treaty, signed in 1992), justice and home affairs became one of the three pillars of the European Union.

The Schengen Agreement (1995) and the Treaty of Amsterdam (1997) emphasised the importance of cooperation and exchange of information among Member States’ justice and law enforcement authorities with the aim of creating an area of freedom, security and justice.

Moreover, the Tampere Programme (European Council conclusions of 1999) and the Hague Programme laid the foundations of the common European Justice and Home Affairs policy, including the cornerstones of cooperation with third countries and the future European judicial area.

Following the institutional changes introduced by the Treaty of Lisbon in 2009, the Member States adopted the Stockholm Programme (2009-2014), which highlighted the significance of European policies for European citizens, particularly in the following areas: rights of citizens, rule of law and justice, internal security (combating terrorism, law enforcement and disaster management, management of the external border and visa policy, migration and asylum (including integration) and the external dimension of the area of freedom, security and justice).

In its conclusions of June 2014, the European Council established, on the basis of the values defined in the Stockholm Programme, the strategic guidelines for legislative and operational planning in the area of freedom, security and justice (for the period 2014-2019).

On 20 June 2019, the European Council adopted the new Strategic Agenda 2019-2024, which, among other goals, emphasises the importance of protecting citizens and freedoms and promoting European interests and values on the global stage.

Accordingly, the Croatian Presidency recognises the importance of the prompt adoption of the strategic guidelines through which the Member States will pave the way to the implementation of further policies in the field of justice and home affairs, with the aim of creating an environment of the European Union as an area of freedom, security and justice.

Looking ahead to the area of freedom, security and justice

Criminal justice

The Strategic Plan for the Union (2019-2024) clearly confirms the aim of strengthening the fight against terrorism and cross-border crime, as well as improving cooperation.

The emphasis in this area will be on improving the implementation of existing instruments and filling gaps in the legislative framework where they exist.

Also, in the coming period it will be necessary to work on strengthening mutual trust between the Member States, which is key to successful judicial cooperation, as well as on developing networks and fostering coordination and synergies between them.

In the coming period, it is important to work on improving the existing acquis in the area of substantive criminal law, and to develop it cautiously, where necessary.

The EU’s ability to develop new acquis in this area must enable common solutions to common challenges, based on the real needs of the EU.

This is relevant to the extension of the competence of the EPPO as well.

Further development of victims’ rights should be approached in a systematic and holistic manner, taking into account the need to secure and/or strengthen all aspects of their protection.

Civil justice

In the coming period, it is necessary to continue with development of judicial cooperation in civil matters, with a focus on citizens, enabling faster and cheaper justice for citizens and businesses in the EU. The implementation of European Union instruments needs to be strengthened to this end.

Legal certainty and prosperity of citizens and businesses must be a guiding principle for future legislative initiatives in civil and commercial law at EU level.

In this sense, effective access to justice is a precondition for economic growth and development, and thus the development of society in general.

Accordingly, all new legislative developments must be based on the practical needs of citizens and businesses, and on evidence of clear added value.

Work needs to be done to strengthen the single market, whose backbone is formed by    SMEs, and it is necessary to secure fair competition and promote fairness and legal certainty in business relations.

It is also necessary for the EU to continue to protect citizens and families in cross-border situations.

One of the aspects of modernisation of the judiciary, which must respond to the needs and trends of modern times, is the further development and application of alternative dispute resolution, including online, bearing in mind its effectiveness, speed and acceptability to the parties.

Judicial training

Judicial training was recognised as an important prerequisite for establishing a unified European judicial culture and for the proper application of EU law.

Therefore, in the forthcoming period, it will be necessary to continue to invest effort both in expanding the content of training and in improving the quality of learning about EU law through sustainable funding, consistent programmes, an enlarged scope to include all judicial professions as well as, for example, familiarisation with the practice of European courts through internships, and further use of modern learning techniques and further linguistic training.

A modern judiciary

The progress and modernisation of the judiciary must, in the coming period, be a particular focus of our activities and be in line with the progress of the European Union as a whole.

The modernisation of the judiciary will make it more effective and also facilitate access to justice for both natural and legal persons. Therefore, the modernisation of the judiciary should continue to be developed through the additional improvement of IT tools/systems, and the introduction of the use of digital technologies into the acquis as a shared standard in its application and thus a key component of efficient digitalised justice systems in the EU.

It will also be necessary to work on interconnection and interoperability between Member States’ systems. Particular emphasis in this respect should be placed on the development of artificial intelligence.

Protection and promotion of common values, including fundamental rights, the rule of law and democratic values

Ensuring continuity in protecting the fundamental values of the European Union – respect for human dignity and human rights, freedom, democracy, equality and the rule of law – will continue to be crucial to the democratic functioning of the European Union and the protection of all its citizens, as well as the reputation and acknowledgement of the European Union in the world.

In this context, the European Union, with the ongoing task of upholding and promoting these values, must be capable and respond to threats to them within the European Union, always in an effort to maintain the unity of the European Union and its Member States.

In addition, the phenomenon of hate speech and large-scale disinformation will have to be addressed, and further efforts should be made to protect vulnerable groups.

The external dimension of the judiciary

Co-operation with third countries and international organisations is important for a number of reasons. Namely, the European Union can, through the external dimension of the judiciary, contribute to a more uniform legal framework in the international setting, which contributes to the overall economic progress of the European Union, the successful fight against crime and terrorism, and also the protection of human rights.

Furthermore, the European Union can be an ‘exporter’ of its own values, many of which are reflected in the judiciary – for example, the independence of the judiciary. The latter is particularly important in relations with candidate countries for EU membership.

Efficient control of external borders and a return to the proper functioning of the Schengen area

Strong and reliable external border protection, efficient return of irregular migrants and strict implementation of other relevant tools contributing to successful and comprehensive migration management are the key prerequisites for a return to a properly functioning Schengen area and for the overall security of the European Union.

With the aim of meeting these goals, the Member States need to invest further efforts to establish a fully operational European Border and Coast Guard, which should reach its target capacity of 10 000 border guards as soon as possible, and at the latest by 2024.

In parallel, more determination is required in order to implement the status agreements in the countries of south-east Europe, which will enable the exercise of the Agencies’ external competences in this region.

Together with the full operationalisation of the European Border and Coast Guard and  efficient returns, Member States need to continue work on efficient and timely implementation of the interoperability legislative framework, ensuring that the synergy of all these measures will lead to well-protected external borders and subsequent restoration of a genuine Schengen area. In doing so, the Member States should strive to improve their cooperation with third countries and invest greater effort in restoring mutual trust.

A comprehensive and functional migration policy

Proactive migration management calls for comprehensive action-taking on all levels and a truly European approach based on responsibility and solidarity. The focus must be on all   migratory routes, particularly land routes, which directly influence the security of the EU external border.

Establishment of a functional, humane and resilient asylum system, as an inevitable part of a comprehensive migration policy, should be based on joint obligations and fair burden-sharing among the Member States. Such an approach is the only way for the Member States to fulfil their obligations towards those who are truly in need of international protection.

It is also crucial in this context to establish a system for the quick return of those who have no right to stay in the European Union. Thus, the list of safe third countries and the list of safe countries of origin should be urgently adopted.

Along with these measures, establishing pathways for legal migration to the European Union is becoming increasingly important. Legal manners of arrival, including resettlement, reduce the incentive to use smuggling routes to Europe, protect human life and dignity and have multiple benefits for our societies and economies.

Therefore, our cooperation with partner countries should be the main tool for tackling the root causes of illegal migration, providing assistance to refugees, managing mixed migration flows, combating smuggling and document fraud, ensuring efficient readmissions and providing tailor-made legal pathways.

A Europe that protects a safe Union

The security environment of the European Union has changed drastically in the past few years. Therefore, we need to aim to build an efficient and genuine Security Union, capable of responding to the threats of the new age and protecting our children, citizens and societies.

The main challenges we need to deal with are those of a cross-border nature, such as terrorism, organised crime and cybercrime, but also other forms of unacceptable behaviour that could undermine our common security and the values of our societies – child sexual abuse, hate speech, radicalisation leading to violent extremism and intolerance.

In the years to come, no efforts should be spared in tackling the dissemination of terrorist content and child sexual abuse material online, protecting public spaces and addressing the proliferating challenge of hybrid threats that attack the heart of our democracies and endanger our critical infrastructure.

Thus, along with the swift implementation of legislative acts in the field of border protection, exchange of data among law enforcement bodies, firearms, explosives, financing of terrorism and interoperability, we have to strive for adequate legal and technological solutions for the use of artificial intelligence and other new technologies that take into account the protection of personal data and privacy, meet the highest standards of security of information systems, and are defined by ethical boundaries.

Finding the right answers to such a wide spectrum of security challenges should also be complemented by efforts to increase the EU’s resillience against both natural and man-made disasters. Unfortunately, the European Union is facing a great number of frequent and complex disasters which cause loss of human lives and other adverse consequences for our citizens, economies, communities and environment.

It is therefore crucial to keep on building capacities at both national and EU level in order to prevent or to decrease the possibility of disasters. However, being aware that not all disasters can be prevented, we need to continue to work on strengthening our national and common EU reactive capacities in order to be able to save as many lives as possible and to recover from the consequences of various disasters in the shortest possible period.

Investing in our capacities to face the security challenges of the digital age

Responding properly and in a timely manner to such diverse and complex security challenges requires that our police, border, asylum and customs services are well-equipped, and that the legal framework in place provides for their successful mutual cooperation, as well as for cooperation with the relevant EU agencies.

Therefore, in the next five years, Member States will work hand in hand in order to successfully implement the adopted legal acts in a timely manner and to fill legal gaps where they exist. To this end, the swift adoption and implementation of the proposed Regulation on preventing the dissemination of terrorist content online is a key priority.

Furthermore, Member States will insist that sufficient EU funds within the next multiannual financial framework will be allocated to upgrading the technical capabilities, human resources and expertise of all relevant actors whom we expect to play a vital role in ensuring our security in the digital age. It is necessary to ensure practical uptake of the outcomes of research and innovation, and thus coordination between Horizon Europe and other European financial programmes. Due to the economies of scale and the need to provide all EU Member States with the same level playing field, it is advisable to opt for concentrated investments related to the innovation and development of artificial intelligence in the domain of security and migration to make the outcome accessible and available to all Member States.

Therefore, the JHA Agencies, in particular the European Innovation Lab within Europol, should play a central role, taking into account the concentrated knowledge, expertise and secure environment at their disposal. Furthermore, private business should be involved throughout the process, and public-private partnerships should be promoted.

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