Member States began to cooperate in the area of Justice and Home Affairs (JHA) in the mid-1970s on an informal, intergovernmental basis outside the Community framework. In 1985, Germany, France and the Benelux countries signed the Schengen Agreement, which remains one of the most important steps toward cooperation among the Member States in this area. The aim of the agreement was to introduce genuine freedom of movement for all citizens of the European Communities within the Schengen area and resolve a multitude of visa, immigration and asylum issues.
The Treaty on European Union, which entered force in November 1993, took a further step by incorporating Justice and Home Affairs in its institutional framework, thereby adding a further dimension to the construction of Europe.
The entry into force of the Amsterdam Treaty in May 1999 incorporated the Schengen acquis into the institutional framework of the European Union. One of the main objectives of the Treaty was to maintain and develop the Union as an area of freedom, security and justice, in which there would be free movement for persons combined with suitable measures pertaining to the control of external borders, asylum, immigration, as well as the prevention and combating of crime.
However, lifting the borders between Member States to permit the free movement of people should not be to the detriment of security, order and civil liberties. Consequently, the intensification of external border controls – as a measure to counterbalance the abolition of control at internal frontiers – necessitates close cooperation between home affairs and justice services and particularly among the police, customs and immigration services.
The free movement of persons has now become a reality within the European Union, with the exception of the United Kingdom and Ireland which retain, inter alia, their right to carry out controls on persons at frontiers. Specific provisions have also been laid down for Denmark. The Schengen cooperation agreement entered into force for the three Nordic countries on 25 March 2001.
Steps have also been taken to strengthen cooperation in matters of civil protection, an issue which has taken on greater importance following the terrorist attacks in the USA on 11 September.
Article 2, par. 4 of the Treaty on European Union states that one of the prime objectives of the European Union is to maintain and develop the Union as an area of freedom, security and justice. Title VI of the Treaty on European Union (Articles 29 to 42) contains provisions on police and judicial cooperation in criminal matters, whereas Article 30 refers to issues of customs cooperation.
Title IV of the EC Treaty (Articles 61 to 69) defines matters relating to visas, asylum, immigration and other policies regarding the free movement of persons.
In October 1999, the Tampere European Council adopted a series of political guidelines and objectives regarding cooperation among EU Member States in justice and home affairs, with the aim of creating an area of freedom, security and justice. In summary, these objectives involve:
- The creation of an open and safe European Union, where all citizens can exercise their right to free movement under conditions of security and justice
- The development of common policies on asylum and immigration, taking into account the need for a consistent external border control
- A common approach on immigration, within the framework of which matters of policy and human rights will be regulated
- The fair treatment of third country nationals legally residing in the Community
- A balanced development of Community-wide measures against crime, while protecting the freedom and legal rights of individuals and economic operators
- Improved access to justice within Europe and greater convergence in matters of civil law
European cooperation in matters of civil protection is one of the EU’s top priorities in the area of crisis management. The Gothenburg European Council (June 2001) adopted a series of specific objectives for strengthening the effectiveness of political crisis management within the EU. These objectives must be attained by 2003 at the latest. The Laeken European Council (December 2001) confirmed the need to develop autonomous political structures for crisis management. At the same time, it emphasised the importance of effective cooperation among Member States in combating terror attacks with the use of biological and chemical substances.
Meanwhile, the Laeken European Council confirmed the will of the Member States to adopt a common policy on asylum and immigration on the basis of the conclusions drawn in Tampere.
The immediate intensification of efforts to achieve the objectives set by the Vienna Action Plan (December 1998) and the conclusions of Tampere and Laeken is aimed at creating a common judicial area, combating international crime (and terrorism in particular), as well as stronger external action on the part of the EU.
Cooperation in matters of civil law is necessary for the smooth functioning of the internal market. The main issues in this respect are the improvement and simplification of cooperation relating to the cross-border service of judicial and extrajudicial documents, cooperation in the taking of evidence, the recognition and enforcement of court rulings in civil matters, as well as rules on applicable law and the competence of courts. Future efforts in this area are likely to focus on plans to create a European Enforcement Order for undisputed claims, legal aid and mutual assistance in judicial matters, improved recognition and enforcement of decisions concerning custody of children and access rights, in addition to external cooperation with third countries concerning the recognition and enforcement of court rulings.
In matters of refugees, immigration, visas and border control, the intention is to promote a common European policy on asylum and immigration to ensure that third country nationals are treated fairly. A balanced policy on the administration of migratory flows means combating illegal immigration, striving for increased cooperation with the countries of origin and joint, effective administration of external borders. Efforts will now be focused on attaining the targets set since the Amsterdam Treaty and building – by 2004 – the foundations for a common European policy on immigration and asylum, with special emphasis on the integration of legal immigrants, the effective protection of refugees and the combating of racism and xenophobia.
Despite the integration of Justice and Home Affairs into the framework of the Treaty on European Union, the intergovernmental nature of cooperation has been preserved. The main reason why the powers of the EU’s institutional bodies (European Commission, European Parliament and Court of Justice) have been limited in this policy area is the great sensitivity in the Member States on matters relating to public order. Under the Treaty of Maastricht, the JHA lacked legal instruments such as directives or regulations and used only instruments that were specific to the third pillar, which differs markedly from the first pillar as far as decision-making and implementation of policies are concerned.
The Amsterdam Treaty went a step further by transferring part of the JHA subject matter to the supranational first pillar of the EU, while at the same time strengthening the role of Community institutions. This brought cooperation in matters of asylum, civil law, immigration and visas, as well as in other policies pertaining to the free movement of persons and border control within the Community legal order. The intergovernmental approach continues to apply with regard to police and customs cooperation as well as judicial cooperation in criminal matters.
The United Kingdom, Denmark and Ireland are not party to the judicial cooperation in matters of asylum, immigration, border control, civil law and some issues relating to visas. This means that these countries do not take part in Council decision-making on the adoption of measures in the respective fields and are therefore not bound by any decisions taken.
With regard to police and judicial cooperation in criminal matters, the Council adopts conventions, common positions, decisions and framework decisions to approximate (align) the penal codes of Member States. Proposals are made on the initiative of the Commission or a Member State and must be adopted unanimously.
Cooperation in Justice and Home Affairs (CJHA) also extends to matters of civil law, where implementation is achieved through the adoption of regulations, directives, guidelines and other decisions.
In matters of refugees, immigration, visas and border control, EU cooperation consists in the adoption of legislative acts and action plans by the Council.
Of particular importance are two recent EU framework decisions on combating terrorism and the introduction of a European arrest warrant. The warrant, which will replace complicated extradition procedures between Member States in cases of serious crime, covers 32 offences ranging from terrorism to financial fraud. In addition, efforts are under way to revise and improve the 1977 Council of Europe Convention on the Suppression of Terrorism. The revision aims to broaden the definition of criminal offences of a terrorist nature to include preparatory acts, the membership of associations and the funding and setting up of logistics to perpetrate offences of this kind.
Efforts on the narcotics front have been given a boost by the European Union Drugs Strategy and its concrete follow-up, the Action Plan to Combat Drugs (2000-2004). The strategy set 11 general aims and six main targets, while the plan lists around 100 specific activities to be implemented by the EU and its Member States by the end of 2004.
The EU has been quite productive in respect of its legislative task, adopting regulations concerning judicial cooperation in civil matters and the crossing of external borders, as well as decisions and framework decisions pertaining to police and judicial cooperation in criminal and customs matters.
Perhaps the most important element of judicial cooperation is the mutual recognition of judicial decisions in both civil and criminal matters, since it strengthens the EU’s ability to combat international crime by simplifying and speeding up procedures, while at the same time significantly enhancing the services provided to citizens.
CJHA brings together the ministers of justice and home affairs of the EU’s 15 Member States, as well as their respective departments. It enables dialogue, mutual assistance and joint tasks between the judicial, police, customs and immigration authorities of all the Member States.
Political cooperation involves, inter alia, functional cooperation in the prevention, detection and investigation of criminal activities, cooperation in the exchange and analysis of information, as well as collaboration in the field of training and cooperation between liaison officers.
Judicial cooperation in criminal matters is implemented primarily between the competent authorities of the Member States and through EUROJUST. This unit is made up of prosecutors, judges and police officers seconded by the Member States. This form of cooperation covers, inter alia, mutual judicial assistance regarding criminal offences, cooperation between the Member States in matters of extradition, mutual recognition of judicial decisions and the approximation of the penal codes of the Member States, including penalties for organised crime, terrorism and drug trafficking.
Within the framework of customs cooperation, controls are carried out in order to ensure compliance with the rules in a number of policy areas, such as consumer protection and protection of the financial interests of the Community and the Member States. The customs authorities play a key role in the fight against smuggling, forgery, fraud and other illegal activities relating to the cross-border movement of goods. Mutual assistance and cooperation between the customs authorities of the Member States is aimed at ensuring adherence to national and Community legislation.
In view of EU enlargement and the challenges this entails for the customs authorities, the candidate countries are being called on to apply modern work methods based on risk analysis and information collection.
Police cooperation takes place both directly between the national police authorities as well as through the European Police Office (Europol), which was established by virtue of the Europol Convention (26 July 1995) and became fully operational on 1 July 1999.
Cooperation in matters of civil law involves certain measures necessary for the proper functioning of the internal market. These include, inter alia, the improvement and simplification of the system for the cross-border service of judicial and extrajudicial documents, cooperation in the taking of evidence, the recognition and enforcement of decisions in civil and commercial cases, as well as the elimination of obstacles to the good functioning of civil proceedings.
The results achieved to date in the area of civil law cooperation relate to the service, recognition and enforcement of judicial acts, rules on bankruptcy, the establishment of a civil law network in order to promote practical cooperation, as well as rules on the taking of evidence in cross-border cases.
At the Tampere European Council, the Commission was invited to prepare a scoreboard, the purpose of which would be to constantly review the progress made in refugee, immigration, visa and border control matters. Since first being presented, this scoreboard has been retained and is regularly updated as a working tool to monitor implementation of the relevant measures.
Within this framework, the Commission has presented a number of proposals on asylum, immigration and visa matters, particularly in relation to the reception of asylum seekers, asylum procedures, refugee status and subsidiary protection, the Dublin Regulation, family reunification, the entry and residence of third-country citizens and status as resident alien.
In addition, the Council has adopted the Eurodac system for comparing the fingerprints of asylum applicants and illegal immigrants, visa regulations, the refugee fund and the directive on the temporary protection of displaced persons.
A large number of cooperation programmes are now in progress which are aimed at combating illegal immigration through the coordinated management of external borders. Supervision of the relevant joint actions will lead to the presentation of a final report to the European Council in the first half of 2003 concerning the implementation of the Seville European Council guidelines on the control of external borders.
European cooperation in the area of civil protection is largely based on the intentions expressed in the Council decision of 9 December, 1999 regarding the introduction of a relevant action plan. Operational cooperation in matters of civil protection is founded on the Council decision of 23 October 2001, which provides for the introduction of a Community arrangement to promote enhanced cooperation in the field of civil protection in the event of catastrophes or major accidents. Task forces and experts appointed by the Member States are now participating in this scheme, implementation of which began in early 2002.
In addition, the Member States share intelligence about recent terrorist incidents and jointly contribute to the preparation of an evaluation report on the threat of terrorism in the EU. Steps are also being taken to implement an action plan in the EU to combat terrorism.
Lastly, the need has been acknowledged to strengthen the EU’s relations with third countries in matters relating to justice and promote the multi-faceted programme on external relations in this policy area.
Communication from the Commission on integrating migration issues
Communication from the Commission on an open method of coordination for the Community immigration policy
Speech by Romano Prodi : Priorities for Seville
Presidency Conclusions: Seville European Council