Select Committee on European Communities Sixth Report


The legislative process and legislative procedures applicable under the Justice and Home Affairs Pillar of the Treaty on European Union


  The inclusion of justice and home affairs in the Treaty on European Union (the Maastricht Treaty) formalised existing inter-governmental arrangements which had grown up over the years. Prior to the creation of the Third Pillar a plethora of working groups and fora dealt with different issues, ranging from drugs to illegal immigration, and from terrorism to customs co­operation. Title VI of the Maastricht Treaty, consisting of a single Article K, divided into nine provisions K.1 to K.9, places inter-governmental co-operation in justice and home affairs on a formal treaty basis and sets out a list of areas which are of common interest.

Legislative Process

  The organisational structure of the Third Pillar represents a convergence of the previously existing working groups and structures at European Union level. The accompanying diagram indicates the institutional structure applicable under the Third Pillar. Preliminary work is carried out in various working groups which are overseen by three steering groups dealing with (a) immigration and asylum, (b) security, police and customs co­operation and (c) judicial co­operation. The three Steering Groups are brought under the umbrella of the Co­ordinating Committee, established by Article K.4 and also known as the K.4 Committee. The Co­ordinating Committee contributes alongside the Committee of Permanent Representatives (COREPER) to the preparation of the work of the Council of Ministers of Justice and Home Affairs. Where agreement cannot be reached on a proposal in the Justice and Home Affairs Council it may be referred to the European Council.

  In the classical case, a proposal will start life in a Third Pillar working group and then progress up the line, through the relevant steering group, the K.4 Committee and COREPER to the Justice and Home Affairs Council where it will be adopted. There are, however, many exceptions to this. The Steering Groups now play little part in the negotiating process. In addition, recent Presidencies have adopted a more sensible division of work between the K.4 Committee and COREPER avoiding unnecessary duplication between the two. Some proposals have been processed almost entirely at K.4 Committee and COREPER level, with assistance from an ad hoc group of Counsellors based in Member State Permanent Representations in Brussels.

  The Justice and Home Affairs Council, pursuant to Article K.4(3), acts unanimously except on matters of procedure and in cases where Article K.3 provides for other voting rules. Article K.3(2)(b) provides that the Council may decide "that measures implementing a joint action are to be adopted by qualified majority", and according to Article K.3(2)(c) measures implementing conventions drawn up under the Third Pillar "shall be adopted within the Council by a majority of two-thirds of the High Contracting Parties." However, the convention itself can stipulate different decision-making rules and in practice implementing measures are usually adopted on the basis of unanimity.

  Because the underlying principle for all Council deliberations is that the Council is one and indivisible it is possible for Third Pillar proposals to be given formal approval in Councils other than the Justice and Home Affairs Council. However it is only Third Pillar items which do not require discussion by Ministers ("A" points) which are put to Councils covering other sectors of EU business. These proposals still require the prior approval of the Governments of the Member States, who will decide internally what clearances they need to approve the item. It is not unusual for political agreement to be reached on a Third Pillar proposal at a Justice and Home Affairs Council and for the proposal to be subsequently adopted at another Council meeting once the accuracy of the text in the different languages of the Member States has been checked by jurist linguists. This avoids the need to delay the formal adoption of a proposal until the next Justice and Home Affairs Council meeting and allows for the efficient conduct of Council business.

  COREPER decides on the handling of Third Pillar business by the Council and has a formal role in the preparation of the agenda for Council meetings. The general principle which COREPER follows is that anything involving justice and home affairs which requires discussion at the Council level will be handled by the Justice and Home Affairs Council. There have, however, been a few occasions where a matter has been discussed at the General Affairs Council after discussion at the Justice and Home Affairs Council.

  The K.4 Committee is chaired by the Presidency and composed of senior officials mainly drawn from the national ministries responsible for justice and home affairs. The K.4 Committee occupies a key position between the Council and the Steering Groups as it will give opinions to the Council and help prepare its discussions (a task it shares with COREPER). It meets on average once a month. It is important to note that the K.4 Committee does not displace COREPER which retains its role in preparing the Council's work alongside the K.4 Committee. The Steering Groups, like the K.4 Committee, are composed of one representative from each of the Member States and an observer from the Commission, and are serviced by DG H of the Council Secretariat. Under the recent Irish and Dutch Presidencies the steering groups have met only once during each Presidency term and have confined their discussions to the future work programme rather than playing a part in the negotiations on specific proposals. The working groups consist of representatives of the Member States. They are chaired by the Presidency and assisted by the Council Secretariat and the Council Legal Service. The Commission also attend meetings of the working groups.

Nature of the Instruments adopted under the Third Pillar

  Measures adopted under the Third Pillar do not lead to the adoption of Community law under the normal Community legislative procedures because the areas covered are legally outside Community competence. Although the Community institutions have specific roles in this work, instruments adopted under the Third Pillar, where they are legally binding, are binding under international law and not Community law.

  Article K.3 sets out the forms that co­operation in justice and home affairs may take. Article K.3.(2)(a) to (c) lists the following forms of co­operation:

1.  the adoption of joint positions and the promotion of any co­operation contributing to the pursuit of the objectives of the Union;

2.  the adoption of joint action and the decisions on measures implementing joint action; and

3.  the drawing up of conventions and measures implementing such conventions.

  Only conventions drawn up pursuant to Article K.3(2)(c) are clearly indicative of a binding act of public international law. The legal status of joint positions and joint actions is less clear and has given rise to considerable academic argument. The question whether or not an act in the form of a joint action (or joint position) is binding in international law will primarily depend upon the intention of the parties and the terms of the act itself.

  The Council may also adopt non-binding resolutions and recommendations.

  Unlike the Community Pillar where the Council may only amend a Commission proposal by unanimity, a much more flexible approach applies under the Third Pillar. The majority of Third Pillar proposals emanate from the Presidency in office who may decide to change its draft at any stage in the process in order to achieve consensus among the Member States.

Role of the Commission

  The position of the European Commission is set out in Article K.4, which provides for a full association of the Commission with the work in the field of justice and home affairs but its powers are not the same as those it enjoys under the Community pillar. It has a right of initiative which is shared with the Member States in the areas referred to in Article K.1(1)-(6). Hence, the Commission has a right of initiative in the following matters of common interest: asylum policy; rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon; immigration policy and policy regarding nationals of third countries; combating drug addiction; combating fraud on an international scale; and judicial co­operation in civil matters. Excluded from this right of initiative are: judicial co­operation in criminal matters; customs co­operation and police co­operation. These matters remain reserved to initiatives taken by a Member State (Article K.3(2)).

Role of the European Parliament

  Under Article K.6 the European Parliament will be informed of discussions by the Presidency and the Commission, it will be consulted on the principal aspects of Justice and Home Affairs activities and its views must be "duly taken into consideration". It may ask the Council questions or make recommendations to it and every year it is required to hold a debate on the progress made in implementation of the areas referred to in Title VI. However, because of the inter-governmental nature of Justice and Home Affairs co­operation, democratic control rests with national parliaments rather than the European Parliament. In the Third Pillar. therefore, the views of the European Parliament have no binding force.

Role of the European Court of Justice

  The European Court of Justice is given no jurisdiction in respect of the Third Pillar itself. The only provision of Title VI listed in Article L (this Article sets out the scope of the European Court of Justice jurisdiction under the Treaty on European Union) is the one enabling conventions concluded under Article K.3(2)(c) to confer jurisdiction on the Court "to interpret their provisions and to rule on any disputes regarding their application, in accordance with such arrangements as they may lay down". The Member States therefore have discretion whether or not to provide in a convention for the European Court of Justice to have jurisdiction, and if so, to prescribe the extent of such jurisdiction and the arrangements applicable to it.

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Prepared 12 September 1997