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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 draft constitution contains 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.
The general definition of the area of freedom, security and justice is contained in Articles I-41 and III-158 of the draft constitution. Article I-41 lists the types of Union action in this field, i.e. operational cooperation (which is specific to JHA) and legislation.
Article III-158 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-41 and III-160. 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 is not due to figure in the Constitution, the members of the Convention proposed three measures which would 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;
participation in the monitoring of Europol and the evaluation of Eurojust's activities, which represents an innovation; and
participation in the mutual evaluation mechanisms ("peer review") applied in cooperation with the Commission .
The latter provision (Article III-161) 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 future, national parliaments will be kept up-to-date with the work of the committee previously 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-162 provides for the committee to be merged with the various groups within the Council and 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 would be focusing more on the coordination of operational cooperation between authorities with responsibility for police and security.
Administrative (non-operational) cooperation between relevant departments is covered by Article III-164, which contains no amendments to the provisions of the current Article 66 of the Treaty establishing the European Community (EC Treaty), except with regard to the legislative procedure.
As for the powers of the Court of Justice in the field of JHA, the draft 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 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-283.
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In the draft constitution, policies on border controls and asylum and immigration become common policies in accordance with the agreement reached by the Heads of State or Government at the 1999 Tampere European Council.
In accordance with the wishes of the majority of members of the Convention, and of those from the new Member States in particular, the draft constitution provides that this field, including its financial implications, will be governed by the principle of solidarity and a fair sharing of responsibility (Article III-169). By contrast, 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). The draft constitution removes the obligation laid down in Article 67 of the EC Treaty for 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. The Court of Justice will have full and complete judicial review powers, which means that all the exceptions provided for in Article 68 of the EC Treaty are abolished.
By contrast with the EC Treaty, the new draft constitution 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-166. Two main changes should be stressed:
- the Constitution enshrines 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; and
- the wording on short-term visas and residence permits has been simplified.
Following the removal of the reference to minimum rules, Article III-167 of the draft 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-168) 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 Convention 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, since the Union may in future add value to national integration measures by adopting incentive and supporting measures, excluding any harmonisation of national laws and regulations (as in the case of crime prevention).
In addition, Article III-168 provides a legal basis for defining the rights of third-country nationals. Member States will, in practice, 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 does prevent the adoption at Community level of quotas for entry for employment purposes.
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.
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As was the case under Article 65 of the EC Treaty, judicial cooperation remains restricted to civil matters having cross-border implications, although no longer only "in so far as necessary for the proper functioning of the internal market".
In addition, the principle of mutual recognition of judicial decisions has been written into the draft constitutional Treaty. 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, 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 Convention did consider it necessary to add to Article III-170 a paragraph enabling the Council of Ministers, acting unanimously, to extend the normal legislative procedure to certain aspects of family law. This provision 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 normal legislative procedure (co-legislation by the Parliament and the Council of Ministers subject to review by the Court of Justice).
Qualified majority voting becomes the norm, except with regard to the approximation of criminal legislation applicable to crimes not listed in Article III-172, Council decisions extending the scope of the provisions of the Constitution, and the European Public Prosecutor's Office. 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 Member States), whereas Article 34 of the EU Treaty provides that each Member State may exercise its right of initiative. This amendment will hopefully 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-41 of the draft constitution).
Cooperation also covers the approximation of laws through the establishment of minimum rules in the fields of:
Criminal proceedings. Article III-171 of the draft constitution introduces three areas of action:
- mutual admissibility of evidence (the draft 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 (with the Member States allowed to introduce a higher level of protection); and
- the rights of victims of crime.
Substantive criminal law. Article III-172 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, but with respect to substantive criminal law only, when the approximation of national laws proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, the Council, acting unanimously, may establish minimum rules with regard to the definition of criminal offences and applicable sanctions. 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-173 of the draft constitution provides the legal basis for crime prevention. Proposed by the Convention working group on these matters, the article provides for the adoption of incentive and support measures without, however, seeking to approximate the legislative and regulatory provisions.
Article III-174 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. The
draft constitution provides that in future Eurojust will be able to initiate or coordinate
criminal prosecutions conducted by competent national 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
Article III-175 provides that the Council may establish a European Public Prosecutor's Office from Eurojust. It should make it possible to investigate and prosecute perpetrators of and accomplices in serious cross-border crimes and offences against the Union's interests. This decision will be taken by the Member States unanimously after obtaining the consent of the European Parliament.
This article was subject to intense debate within the Convention and represents a compromise between several positions:
- one favouring the establishment of a genuine, independent and accountable European Public Prosecutor empowered to protect Community financial interests or to deal with all crime directed at Europe;
- one, proposed by the Commission, favouring a Public Prosecutor responsible only for the fight against fraud, but established directly by the Constitution;
- one favouring the establishment of a Prosecutor's Office from Eurojust with a view to enhancing its powers; and
- one held by some members of the Convention, who made clear their opposition to the establishment of any such institution.
In the end, the third position was adopted.
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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-176) 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-178) remain subject to unanimity, whereas measures related to non-operational cooperation are subject to qualified majority voting.
The provisions of Article III-177 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-177 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-321 of the Constitution retains the wording of Article 280 of the EC Treaty. However, the last sentence of paragraph 4, which provides 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 draft constitution is devoted to "non-discrimination and citizenship". Three innovations should be stressed:
- under Article III-8(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-8(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-11 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 II-45 defines the right to free movement and residence as a citizen's right. The main innovation introduced by the draft constitution is Article III-9, 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 by unanimity.
Title III of the EC Treaty on the "free movement of persons, services and capital" is replaced by Section 2, Title III of the draft constitution. With regard to the free movement of persons, the only innovation is in Article III-21 (social security and free movement of workers), where the reference to unanimity in the Council is deleted. Article III-49 restricts the free movement of capital by enabling the adoption of a European legal framework for freezing the assets of persons, groups or non-state entities as a measure in the fight against organised crime, terrorism and trafficking in human beings.
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|I-41||Specific provisions for implementing the area of freedom, security and justice||New provisions|
|III-8||Measures to combat discrimination||Significant changes|
|III-9||Measures concerning the right to free movement and residence|
|III-11||Diplomatic and consular protection||Significant changes|
|III-21||Free movement of workers, social security benefits||Significant amendments|
|III-49||Freezing of assets|
|III-158||Definition of the area of freedom, security and justice||New provisions|
|III-159||Role of the European Council|
|III-160||Role of national parliaments|
|III-163||Measures concerning law and order and internal security||-|
|III-164||Administrative cooperation in the area of freedom, security and justice||Significant changes|
|III-165||Right of initiative||New provisions|
|III-166||Border checks||Significant changes|
|III-169||Solidarity principle||New provisions|
|III-170||Judicial cooperation in civil matters||Significant changes|
|III-171||Judicial cooperation in criminal matters|
|III-172||Approximation of criminal legislation, criminal offences and sanctions|
|III-173||Incentive measures in the field of crime prevention|
|III-175||European Public Prosecutor's office||New provisions|
|III-176||Non-operational police cooperation||Significant changes|
|III-178||Operations in the territory of another Member State||-|
|III-283||Jurisdiction of the Court of Justice over the activities of police or other law-enforcement services|
|III-321||Fight against fraud||Significant changes|
The fact sheets 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.