Select Committee on European Communities Nineteenth Report



34. The Justice and Home Affairs provisions of the Amsterdam Treaty, followed up by the Action Plan adopted at the Vienna European Council in December 1998 mark a major development in justice and home affairs policy in the European Union, and set out an ambitious work programme. Taken together, the new Treaty provisions and the Action Plan identify a number of priority areas where action is to be taken within a 2 - 5 year timeframe. But this is undoubtedly only the beginning of a longer-tem project. In the course of our enquiry, the Home Secretary suggested that this was, in some ways, an initiative comparable in scope and importance to the programme leading to the single European market. We agree.

35. The decision to hold a Special European Council—the first to deal with this area of policy—is therefore a very important initiative. Over the past few years, the level of intergovernmental activity in this field has increased enormously, and the Amsterdam Treaty has extended Community competence in these areas beyond what was agreed at Maastricht. The implications of these Treaty commitments need to be considered in detail.

36. The Special European Council comes at an opportune moment for other reasons. The issues with which governments are concerned in the JHA field have changed radically in recent years. The completion of the internal market has, among other effects, led to an increase in cross-border crime. Crises in Eastern Europe and Africa have led to increasing pressure on the EU's frontiers. Migration and asylum issues have come to the fore. As the Home Secretary told us "whenever two or three Interior Ministers are gathered together, they tend to talk about nothing else" (Q 273).

37. The Special European Council could serve a dual purpose. On the one hand, it will raise the profile and visibility of co-operation in the field of justice and home affairs. On the other, it will introduce a political dimension into issues perceived as technically complex and hence the preserve of specialists. Perhaps most significantly, political leaders will have to re-acquaint themselves with the concept of an area of freedom, security and justice, and will have to establish guidelines demonstrating the relevance of this concept to the citizens of the EU's member states. If the summit succeeds in adopting clear and substantial guidelines, this could help the European Union to overcome its so far rather fragmented and intermittent decision-making in the field of justice and home affairs

38. There are, however, some possible risks. Crucially, the European Council must carry public opinion with it. There is very little knowledge or understanding of the potential scope for EU activity in the justice and home affairs field. Governments have to be more open and communicate more effectively to build public confidence. There have to be demonstrable benefits for citizens - most importantly, in relation to civil liberties - resulting from each proposed objective. Issues of accountability, visibility and public acceptance have so far been underplayed. National parliaments also have a significant role to play in these areas, and it is important that they should be kept fully informed and involved in the run-up to the Tampere meeting and after.

39. There is also the question of resources. We received no evidence on this point, but it is clear that the proposals on the Tampere agenda - which may include the development of new institutions - have substantial resource implications. The European Council should, in our view, ensure that it tailors its ambitions to the human and financial resources available. To fail to do so would risk arousing expectations which stand little chance of fulfilment.


40. Preparations for the summit have already demonstrated that the Member States have different priorities. For the French Government, for instance, a clear priority is to achieve progress on the "European judicial area" project which is seen as necessary to bring Europe closer to its citizens and which ties in well with current reforms of the French national judicial system. The German Government is primarily interested in progress towards a comprehensive common European asylum and immigration strategy with an effective system of burden-sharing which could relieve Germany of some of the intense pressure it experiences because of its geographical position.


41. Her Majesty's Government proposes using the Tampere summit to agree on an extension of the principle of mutual recognition of judicial decisions, especially in the area of criminal law. The Government considers this to be a more promising approach than the harmonisation favoured by a number of other Member States. Mutual recognition can cut through the problems caused by the differences between national legal systems and does not require the controversial and time consuming harmonisation of national laws. This initiative has been supported mainly by Germany and the Scandinavian countries. The Government is also aiming to achieve progress at Tampere on improving citizens' access to justice across European borders. Unlike the Belgian and French governments, however, the Government sees scope for practical progress by the coordination of existing national procedures rather than steps towards the creation of a single European code of civil procedure.

42. The Government has also launched an initiative on preventing and combating youth crime, which is aimed at the creation of EU programmes for comparing experiences, identifying and promoting good practice, training, research and seminars. This initiative has not been met with an overwhelming response from other Governments, some of which feel that this issue does not necessarily require action by the Heads of State and Government and may perhaps better be dealt with in the national context, in line with the principle of subsidiarity. On the other hand, it is clear that a common European asylum and immigration system, as favoured by Germany, Italy and Austria, is not one of the Government's priorities.

43. Member States' approaches to Tampere range from the visionary to the pragmatic, with perhaps some degree of indifference in between. The Committee welcomes the Government's initiative in putting forward its own proposals for Tampere. We agree with the Government's analysis that a practical, "needs-based" approach is likely to produce tangible benefits and command greater public support than setting ambitious long-term objectives, which may be difficult to implement and could cause friction and division. The existing national procedures and institutions are the product of long experience, and reflect cultural differences in the Member States. The European Council has the difficult, but necessary, task of reconciling the conflicting claims of effectiveness, democratic accountability and national autonomy.


44. The Finnish Presidency has been working to narrow down the extremely wide-ranging proposals which have been made for the agenda. They have chosen to focus on three broad headings. This is useful, but in our view the agenda is still too wide. Each of the three headings chosen by the Presidency would itself provide sufficient material for a well-filled European Council agenda. We doubt whether the Heads of State or Government will have the time to discuss effectively all of these issues. As a result there may be a risk that either political guidelines void of substance are adopted or that some objectives are agreed on whose longer term implications are not understood. For this reason, the Committee hopes that Ministers responsible for implementing the objectives agreed at Tampere will be present at the summit[3].

45. In our view, the final stages of the preparations for the Council must focus on setting priorities, and should establish realistic targets which are capable of fulfilment in the short-to-medium term. We would emphasise, in particular, that the measure of the success of the European Council should not simply be the creation of new institutions or grandiose policy objectives.


46. Experience with refugees from south-east Europe, especially the dramatic events in Kosovo, are bound to influence the discussions at Tampere. Member States, however, are unlikely to have drawn the same conclusions, particularly on such sensitive issues as burden-sharing. The Committee considers the demand of the German Government for greater European solidarity in the areas of asylum policy and protection of refugees with considerable sympathy. However, having looked at the enormous political and practical difficulties of agreeing and implementing an obligatory system of burden-sharing it feels that a voluntary approach, building upon the progress achieved on this issue under the German Presidency, is at the moment the only realistic option. The Tampere European Council should be used to consolidate the Union's approach in this direction.

47. The summit also faces a major political dilemma in having to reconcile, on the one hand, the need to safeguard asylum as an individual right and to ensure adequate protection of refugees and, on the other, the desire common to all Member States to resist economic migration. We see some value in establishing minimum basic standards, based on the 1951 Geneva Convention and UNHCR guidelines, as regards the substantive rights of asylum seekers and the procedural rules for handling asylum claims. But we are also conscious of the risk that standards might be set at the lowest common denominator, thus provoking a downward spiral in the level of protection available in the EU. We welcome discussion of the need for complementary forms of protection for those falling outside the criteria laid down in the 1951 Geneva Convention, and we draw attention to Declaration 17 annexed to the Amsterdam Treaty, which provides that "Consultations shall be established with the United Nations High Commissioner for Refugees and other relevant international organisations on matters relating to asylum policy."

48. We support a comprehensive approach to identifying and addressing the causes of migratory flows into the EU, and we await with interest the reports from the High Level Working Group on Asylum and Migration on the various tools available to tackle or alleviate the problems at source. This is a complex area, and has major implications for the shaping of the EU's policies for development and financial aid, as well as for the Common Foreign and Security Policy. We share the Government's concern that the prevention of migration should not displace the primary objective of poverty reduction in the Community's development policy. Indeed poverty reduction, over time, is likely to reduce migratory pressures.


49. The Committee believes that further progress in the fight against cross-border crime at the European level is of major importance. However, the evidence taken failed to convince us that the best way forward would be to engage in a process of harmonisation of national criminal laws. This would not only be controversial in some Member States but would also take a very long time to achieve substantial results. Similarly, the development of a uniform code of criminal offences for the EU would be problematic. The Corpus Juris project, a research study aimed at providing an EU-wide regime to deal with fraud on the Community's finances, gives some idea of the difficulties which would be encountered[4]. Instead the Committee favours the idea of an increased use of the method of mutual recognition of judicial decisions in criminal matters as has been proposed by the Government. This is discussed in greater detail in our conclusions on a European judicial area (see paragraphs 51-57 below).

50. The Committee considers that EUROPOL needs to demonstrate its ability effectively to perform its current tasks before any consideration should be given to extending its role and competences. However, the Committee supports in principle two other institutional innovations proposed during the preparations for the Tampere European Council:

    (i)  the creation of a European Police Staff College which could provide special training for police officers of the Member States and the applicant countries for the fight against cross-border crime. A European Police Staff College could help to identify and propagate best practice in investigative techniques, operations and enforcement against cross-border crime throughout Europe. The United Kingdom would be a highly appropriate base for such a project, and we encourage the Government to consider whether the United Kingdom should offer to host such a college.

    (ii)  the creation of a "Eurojust" unit composed of national prosecutors or magistrates vested with certain powers to prosecute cross-border criminal activities. The Committee believes, however, that the precise role, powers and financial implications of such a unit need further consideration. It regards "Eurojust" as a necessary parallel unit to Europol. The Committee considers it important that the national liaison prosecutors or magistrates posted to this body should only initiate and direct investigations within their own national territory in accordance with their national law. We note that, if Eurojust is established, it will be essential to maintain a balance between the effective prosecution of cross-border offences and the protection of the rights of the defence. As we remarked in our report on the Corpus Juris, the accused also has a place in the area of freedom, security and justice. Moreover, the issue of accountability will arise as much for Eurojust as for Europol. We urge the Government to consider further how mechanisms of accountability at the European and national level should be developed for these bodies.


51. This concept, more than any other on the Tampere agenda, is open to a wide variety of interpretations. In the field of civil law, it would seem to imply easier access to justice across European borders. In the criminal field, it would mean co-operating "as though there were no legal boundaries", with each Member State recognising as valid the decisions of another Member State's courts in the criminal area with the minimum of formality[5].

52. Proposals made by the Lord Chancellor's Department include better provision of information on small claims procedures in other Member States; facilitating access to justice systems through the use of information technology; and exchanging best practice to improve the efficiency of civil justice procedures and to reduce delays. These ideas, while welcome, are hardly novel. The Committee regrets that the Government has not taken the opportunity to promote more substantial measures to tackle the practical obstacles citizens face in seeking justice in another jurisdiction. These might include minimum rules for obtaining legal aid and advice, or the establishment of common procedures for small claims which would provide quick and effective remedies[6].

53. The Committee welcomes the Home Office's paper on mutual recognition of decisions and judgments in criminal matters. We believe that the "mutual recognition" approach is preferable to harmonisation of differing systems of criminal law and is likely to give quicker results. We agree with the Government that mutual recognition should apply at an early stage in criminal proceedings (for example, in connection with arrest warrants, witness summonses, warrants for search and seizure etc.). Two factors are of particular importance if this proposal is to make progress, and were stated by the Government in its explanatory memorandum on the proposal. The first is that "the key underlying concept … is the principle that Member States of the EU should have full confidence in each others' legal systems. Progress towards mutual recognition may therefore depend on agreeing common minimum standards and safeguards, for example on the treatment of suspects in custody and procedures for ensuring that the standards and safeguards are actually applied." The second factor is public opinion. The Home Office memorandum argues that "public opinion is not yet always ready to accept that the judicial authorities and procedures of other Member States are equivalent to their domestic courts, especially where their own nationals are involved." We agree with this analysis.

54. We believe that some form of inspection and evaluation is essential to build up mutual confidence in the judicial systems of the Member States. We note that there exists among Schengen states a rigorous system to test the effectiveness of each others' external border controls. In our report on the Corpus Juris[7], we welcomed the development of a system of mutual assessment and peer review of various States' mutual legal assistance arrangements. It will be necessary to give careful consideration to appropriate forms of inspection and evaluation as a means of gaining public acceptance for the principle of mutual recognition.

55. We were impressed by the evidence given by Mr Stephen Jakobi, of Fair Trials Abroad, on the need for a Europe-wide system of provisional liberty, or "Eurobail". We believe that, in parallel with the development of a "Eurojust" organisation, further consideration should be given to the concept of "Eurobail", as a way of ensuring that the prosecution of cross-border crime does not result in a substantial increase in the numbers of citizens of one EU Member State on remand without bail in another EU state. In our report on the Corpus Juris, we identified a need for research across all the Member States to ascertain the nature and scale of the problem. We continue to urge the Government to seek to persuade the Union of the value of such research. The development of a system of "Eurobail" would help to demonstrate that closer European co-operation in this field can also enhance respect for civil liberties in all the Member States.

56. The Committee has two particular concerns about the Government's paper on mutual recognition. First, it does not consider the possible grounds on which the application of the principle of mutual recognition may be challenged. The Convention on Driving Disqualification, agreed last year, specifies the circumstances in which the Member State of residence may refuse to give effect to a disqualification imposed in the State where the offence was committed. These include cases where it considers that the disqualified driver did not have an adequate opportunity to defend himself. In developing the idea of mutual recognition across a range of criminal offences, it will be necessary to define in each case the possible grounds for refusing to enforce a judicial decision given in another Member State.

57. Secondly, the paper is silent on the role, if any, of the European Court of Justice. The Committee considers that mutual recognition must be founded on a rigorous and transparent evaluation of the criminal justice systems in the Member States. In addition to a system of mutual evaluation and inspection, a judicial mechanism must be available at EU level to ensure compliance with common minimum standards and safeguards. This principle has been readily accepted in the interpretation and implementation of internal market rules. It is no less important in matters affecting the liberty of the citizen.


58. In the course of our enquiry, we heard evidence on the German proposal for a European Union Charter of Fundamental Rights. We have not drawn any conclusions on this proposal, which is not on the agenda for the Tampere summit, but it is a matter to which the Committee may return as this proposal is developed. The proposed Charter raises the question whether the object of protecting fundamental rights could not be more effectively achieved by full incorporation of the European Convention on Human Rights into Community law. The Committee last considered the question of Community Accession to the European Convention in 1992-93[8]. At that time, the Committee concluded " … we do not favour Community Accession to the European Convention on Human Rights." However, with the changes introduced by the Maastricht and Amsterdam Treaties, Community law has diversified well beyond the field of economic activity. There is an explicit Treaty recognition of the importance of the Convention in ensuring respect for human rights and fundamental freedoms. But we will need to be sure that adequate means exist for enforcing such rights, especially in the new spheres of Union activity. We may, therefore, have to look again at the question of Community accession to the Convention.

3  A Declaration agreed at Maastricht provided that "the President of the European Council shall invite the Economic and Finance Ministers to participate in European Council meetings when the European Council is discussing matters relating to economic and monetary union". There is, therefore, a precedent for involving other Ministers in addition to those responsible for Foreign Affairs, as required by Article 4 TEU. Back
4  See our 9th Report, Session 1998-99 (HL Paper 62), Prosecuting Fraud under the Communities' Finances - the Corpus Juris. We concluded that at the present time this was not "a practically feasible or politically acceptable way forward" and argued that, "in the short term, energy and resources would be better directed towards improving mutual legal assistance and practical co-operation." Back
5  Speech given by the Home Secretary to a seminar on judicial co-operation in criminal cases, Avignon, 16 October 1998. Back
6  As part of the action plan on consumer access to justice, a Commission Communication adopted in March 1998 recommended the use of a European consumer complaint form (available on the Internet at to help resolve small claims disputes. Back
7  9th Report, Session 1998-99 (HL Paper 62), see paragraphs 102 and 131. Back
8  Human Rights Re-examined, 3rd Report Session 1992-93, (HL Paper 10). Back

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