The policies of the Union
Borders, asylum and immigration
Judicial cooperation in civil matters
Judicial cooperation in criminal matters
The fight against fraud
Non-discrimination, citizenship and free movement of persons
The Constitution introduces significant steps forward in the field of justice and home affairs (JHA), in particular the abolition of the third pillar and the extension of the community method to virtually all aspects of this field. Compared with the draft produced by the Convention , the Inter-Governmental Conference (IGC) has made a number of specific changes.
The current provisions are found in a single chapter (Part III, Title III, Chapter IV). The general definition of the area of freedom, security and justice (AFSJ) is contained in Articles I-42 and III-257 of the Constitution. Article I-42 lists the types of Union action in this field, i.e. legislation and operational cooperation (which is specific to JHA).
Article III-257 refers to the principles of:
- subsidiarity and respect for different legal traditions and systems;
- solidarity in the area of the common policy on asylum, immigration and external borders; and
- mutual recognition of judicial decisions in criminal and civil matters.
Moreover, in the light of the conclusions of the Tampere European Council, it was considered necessary to include the reference to access to justice, particularly in civil matters.
The role of national parliaments is defined in Articles I-42 and III-259. Under the present system, national parliaments take part in the adoption of the applicable standards through national ratification of conventions. Given that this legal instrument no longer figures in the Constitution, three measures now enable national parliaments to continue to play a key role in monitoring the implementation of this policy:
the "early warning mechanism" on compliance with the principle of subsidiarity; which can be triggered by a quarter of the national parliaments;
participation in the monitoring of Europol and the evaluation of Eurojust's activities, which represents an innovation; and
information on the substance and results of the mutual evaluation mechanisms ("peer review") applied in cooperation with the Commission.
The latter provision (Article III-260) provides for the application of a mechanism which has already been used successfully in recent years. It makes it possible to follow the practical implementation of Union policies at the operational level by police and judicial authorities, while simultaneously facilitating mutual recognition by the Member States.
In the future, national parliaments will also be kept up-to-date with the work of the internal security committee, which to some extent is the successor of a coordinating committee known as the "36 Committee" after the number of the article in the Treaty on European Union (EU Treaty) on the basis of which it was established. Article III-261 in fact provides for its mission to be redefined: whereas the present committee is charged with the task of contributing to the preparation of the work of the Council in the field of police and judicial cooperation, the new standing committee will henceforth focus exclusively on promoting and strengthening operational cooperation between authorities with responsibility for police and internal security.
This concept of internal security is specific to the area of freedom, security and justice, as the IGC uses the broader and less specific term "national security", especially in Part I of the Constitution, in connection with Member States' national identities.
Administrative (non-operational) cooperation between relevant departments is covered by Article III-263, which contains no amendments to the provisions of the current Article 66 of the Treaty establishing the European Community (EC Treaty), which, pursuant to the Treaty of Nice, requires cooperation measures to be adopted by the Council acting by a qualified majority.
As for the powers of the Court of Justice in the field of JHA, the Constitution abolishes the limitations and derogations laid down in Articles 68 of the EC Treaty and 35 of the EU Treaty, thus enabling the Court in particular to review Member State compliance in this field. However, the exceptions relating to the review of the validity or proportionality of police operations, the maintenance of law and order and the safeguarding of internal security laid down in Article 35(5) of the EU Treaty are retained in Article III-377.
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In the Constitution, policies on border controls and asylum and immigration become common policies. The provisions in these areas are the same as those proposed by the members of the Convention.
The new Treaty provides that this field, including its financial implications, will as a general rule be governed by the principle of solidarity and a fair sharing of responsibility (Article III-268t, whereas Title IV of the EC Treaty provides that the principle of "burden sharing" will apply only to the reception of refugees and displaced persons in the event of mass influx.
As far as the procedures are concerned, the Commission will in future have sole right of legislative initiative (as already envisaged in the Treaty of Amsterdam from 1 May 2004). However, the Constitution removes the clause (Article 67 of the EC Treaty) obliging the Commission to examine requests made by Member States.
All measures will be adopted in the form of laws or framework laws through the normal legislative procedure, with the exception of emergency measures in the event of mass influx, for which the Parliament will merely be consulted. The extension of qualified majority voting to all areas of these policies represents further progress from the procedural amendments introduced by the Treaty of Nice.
By contrast with the EC Treaty, the new Constitutional Treaty lays down the principles to follow for each policy in this field.
Checks on persons at borders
Article 62 of the EC Treaty is replaced by Article III-265. Three main changes should be stressed:
- the enshrining of the concept of an "integrated system of external border management" for enhancing future cooperation at both the legislative and the operational level, with the possibility of creating common border-guard units to support action by national authorities;
- the wording on short-term visas and residence permits has been simplified;
- the competence of the Member States is respected in terms of the geographical demarcation of their borders, in accordance with international law.
Following the removal of the reference to minimum rules, Article III-266 of the Constitution incorporates the concept of a "common European asylum system" offering third-country nationals:
- a uniform status and common procedures for the granting and withdrawing of asylum; and
- a uniform status and common procedures for the granting and withdrawing of subsidiary protection status.
The Union does not recognise a uniform status for displaced persons in the event of mass influx but only the possibility of establishing a common temporary protection system, which would comply with the provisions of the Geneva Convention.
The significance of the external dimension of asylum policy is reflected in the provision enabling the adoption of measures relating to partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.
The common immigration policy (Article III-267) comprises the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings (women and children, in particular).
The Constitution confirms the development started in the Treaty of Amsterdam by including a provision empowering the Union to conclude agreements with third countries for the readmission of third-country nationals residing without authorisation in the Union. The main innovations concern third-country nationals residing legally in the Union; the Union may in future adopt incentive and supporting measures for the integration of immigrants, excluding any harmonisation of national laws and regulations (exactly as in the case of crime prevention).
In addition, Article III-267 clearly provides a legal basis for defining the rights of third-country nationals. Member States will, however, retain the right to determine volumes of admission of third-country nationals coming from third countries to seek work. This paragraph is of particular significance given that, although it affects neither access to the labour market of third-country nationals already residing in a Member State nor entry for other purposes (such as family reunification or studies), it constitutes an important reservation of national competence in connections with the common definition of immigration policy.
Finally, the fight against illegal immigration and the possibility of criminal sanctions, which already featured in Article 63 of the EC Treaty, are not subject to amendments, except for the new paragraph on trafficking in human beings.
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As in Article 65 of the EC Treaty, judicial cooperation remains restricted to civil matters having cross-border implications, always "in so far as necessary for the proper functioning of the internal market".
The principle of mutual recognition of judicial and extrajudicial decisions is written into the Constitutional Treaty as a cornerstone of judicial cooperation in this area. The reference to "measures for the approximation" is also highly significant, since the list of fields in which the Union may adopt such measures is widened to include measures aimed at ensuring a high level of access to justice, elimination of obstacles to the proper functioning of civil proceedings, the development of alternative methods of dispute settlement, and support for the training of the judiciary and judicial staff.
As provided for in the Treaty of Nice, all legislative measures are subject to co-decision and qualified majority voting, with the exception of measures concerning family law with cross-border implications, for which unanimity is retained.
However, the Constitution now includes in Article III-269 a paragraph enabling the Council of Ministers, acting unanimously, to extend the ordinary legislative procedure to certain aspects of family law. This specific bridging clause should prevent the need for amendments to the Constitution.
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Following the abolition of the third pillar, the panoply of acts currently used (common positions, decisions, framework decisions, conventions) is replaced by laws and framework laws adopted using the ordinary legislative procedure (co-legislation by the Parliament and the Council of Ministers subject to review by the Court of Justice), except for the European Public Prosecutor's Office (see below).
In the draft Constitution, qualified majority voting was proposed as the norm in the field of judicial cooperation in criminal matters and criminal law. Following the debate, and in order to avoid reverting to unanimity, the IGC introduced a change, known as the "emergency brake" . Under this clause, where a Member State feels that a draft law or framework law will affect fundamental aspects of its criminal justice system it may refer the matter to the European Council, thus suspending the ordinary legislative procedure. After a discussion, and within a period of four months, the European Council has two options: restarting the ordinary procedure or asking either the Commission or the group of Member States from which draft originated to submit a new draft. If no action is taken by the European Council in respect of the initial draft within four months or in respect of a new draft within 12 months, and the law or framework law has not been adopted, one third of the Member States may establish enhanced cooperation. The procedure is simplified, in that the preliminary authorisation required under the general rules is deemed to have been granted automatically.
The right of legislative initiative remains shared between the Commission and the Member States, but the Convention introduces a "quorum" for presenting initiatives (one quarter of the Member States, i.e. seven countries in a Union of 25 or 27 Member States), whereas Article 34 of the EU Treaty provides that each Member State may exercise its right of initiative. This amendment is expected to reduce the number of Member State initiatives which often do not reflect genuinely common European interests.
Fundamental principles, criminal proceedings and substantive criminal law
As in the case of judicial cooperation in civil matters, the principle of mutual recognition of judicial decisions in criminal matters is enshrined in the Constitution, in accordance with the political agreement reached at Tampere. This principle becomes the cornerstone of judicial cooperation in criminal matters, thus helping promote mutual confidence among the competent authorities of the Member States (as provided for in Article I-42 of the Constitutional Treaty).
Cooperation also covers the approximation of laws through the establishment of minimum rules in the following fields:
Criminal proceedings. Article III-270 of the Constitution introduces three areas of action:
- mutual admissibility of evidence (the Constitution does not, however, provide for the harmonisation of evidence or the manner in which it is handled);
- the rights of individuals in criminal procedure;
- the rights of victims of crime.
Following the changes made to the draft Constitution by the Inter-Governmental Conference (IGC), this approximation of legislation is in any event an option only "to the extent necessary", and taking account of the "differences between the legal traditions and systems of the Member States".
Substantive criminal law. Article III-271 provides that the Union may define criminal offences and sanctions in 10 areas of particularly serious crime with cross-border dimensions: terrorism, illicit drug trafficking, organised crime (for which Article 31(1)(e) of the EU Treaty already provides for the adoption of minimum rules), trafficking in human beings and sexual exploitation of women and children, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment and computer crime.
Neither this list, nor the list of aspects of criminal proceedings, is exhaustive: the Council of Ministers, acting unanimously after obtaining the consent of the European Parliament, may decide to extend them.
In addition, the Council may adopt, acting unanimously, minimum rules with regard to the definition of criminal offences and applicable sanctions (substantive criminal law), when the approximation of national laws proves essential to ensure the effective implementation of a Union policy in an area which has already been subject to harmonisation measures. This criterion makes it possible to cover the fight against racism and xenophobia, fraud affecting the financial interests of the Union, tax evasion, crimes affecting the environment and counterfeiting of the euro.
Article III-272 of the Constitutional Treaty provides the legal basis for crime prevention. The article provides for the possibility of adopting incentive and support measures without, however, seeking to approximate the legislative and regulatory provisions.
Article III-273 extends and clarifies the operational powers of Eurojust. Article 31 of the EU Treaty, as amended by the Treaty of Nice, entitled Eurojust to request a Member State to open an investigation, without this request being binding. Following discussion within the IGC, the Constitution now provides that Eurojust can itself:
- initiate criminal investigations (taking due account of national rules and practices, as stipulated in Declaration No 23 annexed to the Final act of the IGC);
- propose to national authorities that prosecutions be initiated;
- coordinate investigations and prosecutions being pursued by the competent authorities.
Eurojust's activities must comply with the Charter of Fundamental Rights and are subject to review by the Court of Justice .
European Public Prosecutor's Office
The Convention's proposal on the European Public Prosecutor's Office has been amended substantially by the IGC. Article III-274 of the Constitution now provides that the Council, acting unanimously and after obtaining the consent of the European Parliament, may establish a European Public Prosecutor's Office from Eurojust, but only to combat crimes affecting the financial interests of the Union. The tasks of the European Public Prosecutor's Office will include investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices in, offences of this type.
However, the Constitution leaves a door open by providing for the possibility for the European Council to extend the powers of the European Public Prosecutor's Office to include serious crime with a cross-border dimension. Any such decision may be taken at the same time as, or after, the decision establishing the European Public Prosecutor's Office and must be taken unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
This article was subject to intense debate within the Convention and represents a compromise between several positions:
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The abolition of the third pillar also affects the procedures laid down for police cooperation.
The Union's powers in this field have not changed significantly since the EU Treaty, since the scope of cooperation among competent authorities (Article III-275) remains the same as under Article 30 of the EU Treaty. The provisions on the exercise of operational powers among national authorities and those on operations in the territory of another Member State (Article III-277) remain subject to unanimity, whereas measures related to non-operational cooperation are subject to qualified majority voting.
The provisions of Article III-276 on Europol represent a summary version of Article 30 of the EU Treaty. They strengthen the powers of Europol with regard to "serious crime affecting two or more Member States" by giving it responsibility for the coordination, organisation and implementation of investigations carried out jointly with the national authorities. However, using a wording similar to that in Article 32 of the EU Treaty, Article III-276 provides that any operational action by Europol must be carried out in liaison with the national authorities and that the application of coercive measures remains the exclusive responsibility of national agents.
The European Parliament, together with national parliaments, will scrutinise Europol's activities. These activities must comply with the Charter of Fundamental Rights and are subject to judicial review by the Court of Justice.
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With regard to the fight against fraud, Article III-415 of the Constitution retains the wording of Article 280 of the EC Treaty. However, the last sentence of paragraph 4, which provided that "the measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Community shall not concern the application of national criminal law or the national administration of justice", has been deleted. This amendment will enable the Union to adopt the necessary legislative provisions on criminal law to protect its financial interests.
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Title II of the third part of the Constitution is devoted to "non-discrimination and citizenship". Three innovations should be stressed:
- under Article III-124(1) on measures to combat discrimination, decisions of the Council remain subject to unanimity but must be approved by the Parliament, whereas under the EC Treaty, the Parliament was merely to be consulted;
- under Article III-124(2) on measures to combat discrimination, the powers of the Union are extended to the definition of the "basic principles" for incentive measures in this field; and
- Article III-127 provides a new legal basis for the Union to adopt laws establishing the measures necessary to facilitate diplomatic and consular protection of citizens of the Union, whereas under the EC Treaty, it was for the Member States to establish such measures.
Like Article 18 of the EC Treaty, Article I-10(2) defines the right to free movement and residence as a citizen's right. The main innovation introduced by the Constitution is Article III-125, which extends the Union's powers to areas previously excluded by the Treaty of Nice, such as measures concerning passports, identity cards, residence permits or any other such document and measures concerning social security or social protection. Such measures are to be laid down by a law adopted unanimously after consulting the European Parliament.
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As in the EC and EU Treaties, the provisions of the Constitution on the area of freedom, security and justice are supplemented by several Protocols, in particular the one on the Schengen acquis integrated into the framework of the European Union and those on special arrangements for certain Member States (United Kingdom, Ireland, Denmark).
As the Convention did not examine these Protocols, the IGC assumed the task of adapting them to the new constitutional framework. The innovations include the following:
- the scope of the Protocol on the position of the United Kingdom and Ireland on policies in respect of border controls, asylum and immigration and judicial cooperation in civil matters has been extended to include police cooperation on measures relating to the collection, storage, processing, analysis and exchange of information among the competent national authorities;
- the opt-out clause in the Protocol on the position of Denmark has been retained. In view of the extensive changes made, especially the extension of the traditional Community method to criminal matters and police cooperation, the provisions of the Protocol have been widened accordingly. To 'encourage' Denmark to abandon the opt-out, an Annex established an intermediate arrangement between the opt-out and full application of EU law, allowing Denmark to apply a system of opt-in modelled on the arrangements applying to the United Kingdom and Ireland;
- a Declaration annexed to the Final Act (Declaration No 25) provides confirmation that the Member States are entitled to conclude international agreements (insofar as they comply with Union law) beyond the terms of Protocol No 21 (deriving from the Treaty of Amsterdam).
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|I-42||Specific provisions for implementing the area of freedom, security and justice||New rules|
|III-124||Measures to combat discrimination||Major changes|
|III-125||Measures concerning the right to free movement and residence|
|III-127||Diplomatic and consular protection||Major changes|
|III-136||Free movement of workers, social security benefits||Major changes|
|III-160||Freezing of assets|
|III-257||Definition of the area of freedom, security and justice||New rules|
|III-258||Role of the European Council|
|III-259||Role of national parliaments|
|III-262||Measures concerning law and order and internal security||-|
|III-263||Administrative cooperation in the area of freedom, security and justice||-|
|III-264||Right of initiative||Major changes|
|III-265||Border checks||Major changes|
|III-268||Solidarity principle||New rules|
|III-269||Judicial cooperation in civil matters||Major changes|
|III-270||Judicial cooperation in criminal matters||-|
|III-271||Approximation of criminal legislation, criminal offences and sanctions||-|
|III-272||Incentive measures in the field of crime prevention||New rules|
|III-274||European Public Prosecutor's Office||New rules|
|III-275||Non-operational police cooperation||Major changes|
|III-277||Operations in the territory of another Member State||-|
|III-377||Jurisdiction of the Court of Justice over the activities of police or other law-enforcement services|
|III-415||Fight against fraud||Major changes|
The factsheets are not legally binding on the European Commission. They do not claim to be exhaustive and do not represent an official interpretation of the text of the Convention.