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.



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.”

European Area of Freedom Security and Justice : Council draft Agendas for the First Semester 2013

In compliance with the principle of transparency and in order to improve the decision making process the Council of the European Union organize its internal works in the framework of two main instruments:

a) A 18 months program prepared by a the pre-established group of three Member States holding the Presidency of the Council. The draft Program shall be prepared in close cooperation with the Commission and the President of the European Council, and after appropriate consultations it should be endorsed by the General Affairs Council. (art.2 p6 of the Council Rules of Procedure).
The current “Trio Presidency” program cover the last 18 months of the legislature : Ireland (January-June 2013) Lithuania (July -December 2013) and Greece (January –June 2014).

b) A 6 months Programme which is prepared and diffused by the incoming Council Presidency. This program “shall establish, for each Council configuration, and after appropriate consultations, draft agendas for Council meetings scheduled for the next six-month period, showing the legislative work and operational decisions envisaged” (art.2 p7 of the Council Rules of Procedures). It is worth recalling that according to a Council Declaration “‘The President will endeavour to ensure that, in principle, the provisional agenda for each meeting of the Council dealing with implementation of the Title of the TFEU relating to the area of freedom, security and justice and any documents relating to the items involved reach members of the Council at least 21 days before the beginning of the meeting.”
The current Irish Presidency 6 months Program foresee two formal meetings of the Justice and Home Affairs Council on March 7-8th and on June 6-7th.

An informal Justice and Home affairs Council meeting is already foreseen on 17th/18th of January . It is worth recalling that this kind of Meeting is devoted to strategic debates and no formal votes can take place. For the incoming meeting the main issues to be debated are :
*”Migration for Growth”,
*“Greek National Action Plan on Asylum & Migration” an
*“Update on Situation in Syria (Presented by key EU agencies such as Frontex and EASO).
The second day will be devoted to :
*”Internal Security and Growth”,
*“European cross-border Insolvency law” and certain aspects of the European Data Protection reform.

The main issues to be debated respectively for the “Home affairs” and “Justice” at the formal Council meetings are the following:
Continue reading “European Area of Freedom Security and Justice : Council draft Agendas for the First Semester 2013”

Action Plan on the Stockholm Programme released by Statewatch

European Commission: Stockholm Programme: Statewatch Analysis: Action Plan on the Stockholm Programme: A bit more freedom and justice and a lot more security (pdf) by Tony Bunyan: “The “harnessing of the digital tsunami” as advocated by the EU Future Group and the surveillance society, spelt out in Statewatch’s “The Shape of Things to Come” is embedded in the Commission’s Action Plan as it is in the Stockholm Programme….There is no mention of the European Security Research Programme (ESRP). Much of the technological development is being funded under the 1.4 billion euro security research programme. See: Statewatch/TNI report: Neoconopticon: EU security-industrial complex.

Statewatch Briefing: European Commission: Action Plan on the Stockholm Programme (pdf) Comments by Professor Steve Peers, University of Essex – Full-text: Communication from the Commission: Delivering an area of freedom, security and justice for Europe’s citizens Action Plan Implementing the Stockholm Programme (COM 171/2010, pdf)

The European Council JHA informal debate of 16/17 July on the Stockholm Programme and Member States’ national contributions

An informal meeting of Justice and Home Affairs ministers was held on 15-17 July in Stockholm with the aim to delineate the political orientation of the five years programme that the European Union will negotiate during the Swedish Presidency in relation to the area of Justice and Home Affairs, which will result in the Stockholm Programme. 

The Presidency focuses on putting the citizen at the centre of its agenda and specifically it has been discussed of: 

1. Security and Protection of Freedoms of European citizens

Europe’s home affairs ministers delegations discussed issues including how to increase the effectiveness of cooperation between EU countries in the fight against cross-border crime, while at the same time strengthening the rights of the individual by implementing measures to increase mutual trust between different legal systems and reinforce data protection. Furthermore, protection of children rights has been underlined has a priority of the European Union.

 2. Immigration and Asylum

The debate focused on the necessity to strengthen practical cooperation between Member States fully respecting human rights. To this end differences related to the concession of asylum status between Member States should be eliminated, in particular it must be ensured that asylum seekers, as far as possible, receive the same treatment and have their applications assessed according to the same criteria, irrespective of which Member State they arrive. This goal will be reached through a further development of the Common European Asylum System. The duty of offering protection to those escaping from persecutions and those that need International protection has been also recalled.

Equilibrium between an efficient management of borders and the protection of human rights shall be respected.  Solidarity and the division of responsibility both among Member States and between the EU and countries outside the Union must be consolidated through the European Pact on Immigration and Asylum.

The Presidency recalls for a global approach to migration where the fight against illegal immigration goes hands to hands with the full respect of human rights.

3. Justice

Delegations have highlighted the need to strike the right balance between law enforcement measures and measures to safeguard individual rights and the rule of law.  To reach the rights balance among these aspects, the Presidency proposes a number of measures and initiatives, such as: EU accession to the European Convention of Human Rights; protection of the rights of victims of crime; protection of personal data and privacy.

In addition, the Presidency reiterate the necessity of implementing measures to provide real access to justice for citizens, such as: facilitate the Exchange of information among judicial authorities of the Member States; an effective judicial and police cooperation; the guarantee of an equal access to information during judicial procedures. 

The Presidency continues consultations, particularly with the European Parliament. Issues related to the Stockholm Programme will be examined by the European Parliament and the National parliaments at the COSAC meeting on 4-5 October and during the mixed parliamentary meeting (mixed committee) on 9-10 November.

Leda Bargiotti