Brussels, 05/12/2002 (Agence Europe) - The working group on freedom, security and justice is to present to the Convention, on Friday morning, relatively ambitious proposals for simplifying and improving the setting in place of a European policy on justice and home affairs. The group, chaired by Antonio Vitorino, proposes to replace unanimity by qualified majority and co-decision in most fields. It bases its proposals on two "golden rules": 1) the creation of a common general legal framework recognising the particularities of this area to put an end to the separation between several "pillars"; and 2) a "clearer distinction" between the legislation that must be aligned "in large part" with provisions of Community law, and operational collaboration, which should be kept at "reinforced coordination". In order to ensure real implementation of decisions adopted, the group proposes to strengthen mutual assessment of their legislation by the Member States and to authorise the Commission to take action at the Court for failure to comply if Member States do not fulfil their legal obligations. Generally speaking, most members of the group call for the Court to now have the same powers on such issues as the whole of Community law, and in the same conditions (cancellation, preliminary proceedings). The group also poses the question, though it gives no answers, of keeping the "opt-out" whereby Denmark, the United Kingdom and Ireland do not adopt measures on asylum, immigration and civil judicial cooperation, with the possibility for the last two to take part in opt-in whenever they wish. More specifically:
I. Legislative procedures: 1) First pillar: For asylum, refugees and displaced persons, as well as for immigration, the group considers that the slow progress made is mainly due to the rule of unanimity, and therefore proposes using qualified majority and codecision for all legislative acts (while the Nice Treaty proposes this change only when basic legislative acts have been approved by unanimity). The Vitorino report suggests that this treaty should embody the principle of solidarity and the equitable sharing of resources (including financial implications). It also suggests strengthening the legal base of border control. For cooperation in the civilian field, it does not propose much change. It recalls that, with the Nice Treaty, qualified majority will become the rule except for family law (a majority of its members proposes that qualified majority should also apply to parental responsibility).
2) The third pillar: Legal instruments under this pillar must be reformed as a matter of urgency in relation to police and judicial cooperation in criminal matters, the report states, stressing that "most conventions adopted by the Council have not yet been ratified, that it is very difficult to amend, even for small points, existing conventions (such as that on Europol) and that Framework Decisions and Decisions cannot have direct effect". The report therefore recommends that all these instruments should be replaced by Community instruments: regulations, directives and decisions. Still on the procedural level, it considers that the rule of unanimity is "not tenable" and suggests changing from qualified majority to codecision for all measures except the creation of new bodies with operational competence, the approximation of substantive and procedural criminal law in areas which are not covered by the priority list in the treaty, and the rules concerning actions undertaken by national police authorities or joint investigation teams. Member States would continue to share the right of own initiative with the Commission, but all initiatives should be supported by at least one quarter of the Member States. As far as the scope of Community cooperation is concerned, the report suggests: a) approximation of definitions and sanctions under criminal law: such harmonisation should be limited to infringements against common interests embodies in European policy (for example, euro counterfeiting) and to cross-border and particularly serious infringements (which, according to most members, would be set out in detail in a list that could be amended by the Council); b) approximation of criminal procedures: keeping to necessary specific points and the effectiveness of European instruments.
II. Operational cooperation: Current collaboration "lacks efficiency, transparency and accountability". The Vitorino Group discussed, without reaching conclusions, the question of the chairmanship of a High Representative for Justice and Home Affairs, who would chair the JHA Council. Most members of the group are in favour of the creation, in time, of a common European border control unit, and, to begin with, closer collaboration in conformity with the conclusions of the Seville Summit. They trust that the Treaty will give a clear legal basis for such collaboration. Europol, like Eurojust, believes that the report recommends a more concise and general legal base. Europol, says the report, should be subject to the control of the EP and the Court. There was no agreement on the creation of a European prosecutor.
France and Germany have submitted a joint proposal to the Convention with the same general objectives of merging justice and home affairs into a single pillar, of increasing the powers of the European Court of Justice, and simplifying procedures, with the abolition of the convention and the framework-decision.
The text by Joschka Fischer and Dominique de Villepin is less ambitious for the move to qualified majority voting: we would stick with the Nice rules for asylum and immigration; for police co-operation (other than questions of pending prosecution, where unanimity would remain the rule) passage to qualified majority voting would be gradual; in criminal matters (for which the two countries are in favour of the adoption of a list of infringements) unanimity would remain for certain "sensitive" issues. France and Germany do, however, come out clearly in favour of Eurojust becoming, in stages, a genuine European prosecutor's department, which would be enshrined in the Treaty. The Franco-German proposal is very careful to make the difference between national and European competency regarding the police.