Select Committee on European Union Sixteenth Report

Article 8:[Right of initiative]

The acts referred to in Chapters 3 and 4 of this Title shall be adopted:

-  on a proposal from the Commission, or

-  on the initiative of a quarter of the Member States.

Explanatory note

"This article takes over a proposal contained in the Group's final report (page 15). As already mentioned within the Group, the Convention should carefully examine the possible implications of creating a right of initiative for a group of Member States within the legislative procedure (codecision). Depending on the guidelines which the Convention arrives at for that procedure, it might be necessary to review the wording of this provision."


32.  As mentioned above (see paragraph 17 commenting on Article 31(3)), some form of restraint on Member States' right of initiative is desirable. The one quarter of Member States criterion, as proposed by Working Group IX on Simplification, seems sensible. It should help to counter the tendency of Member States attempting to 'export' their own particular domestic interests and priorities, which may disrupt the timetable and coherence of the legislative programme, lead to proposals for measures that may not comply with the subsidiarity principle, and may do little to enhance the overall quality of legislative drafting.[25]

33.  The Praesidium's Explanatory note points to possible problems with integrating Member States' initiatives into the co-decision (the "legislative") procedure. The difficulty would seem to be in identifying the Commission's role in the procedure when it was not the author of the proposal.

Article 9:[Judicial control]

In exercising its competences regarding the provisions of Chapters 3 and 4 of this Title, the Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security, where such action is a matter if national law.

Explanatory note

"Having analysed the various limitations on and derogations to the general rules relating to the Court of Justice which currently exist in the area of justice and home affairs (cf. Articles 68 TEC and 35 TEU), Working Group X concluded that these derogations should be abolished (see page 25 of the report):

"The Working Group considers that the specific mechanisms foreseen in Articles 35 TUE and 68 TCE should be abolished and that the general system of jurisdiction of the Court of Justice should be extended to the area of freedom, security and justice, including action by Union bodies in this field."

However, the report mentions that some members of the Group, although starting from the same general assumption, felt that it was still necessary to maintain a provision to the effect that the Court of Justice has no jurisdiction for police operations and actions related to the maintenance of law and order (cf. Article 35(5) TEU in the area of the current third pillar). This viewpoint, which was contested by a number of other Convention members, was repeated in the plenary debate. In the light of that debate, the Praesidium is proposing this compromise formula, which is based largely on the wording of Article 35(5) TEU and clarifies it: the Court has no jurisdiction for police action and action relating to the maintenance of law and order which is covered by national law; however, in the case of acts carried out pursuant to Union law, the Court shall be competent to give a ruling on the application of Union law."


34.  Article 9 provides an exception to the jurisdiction of the Court of Justice. This excludes review by that Court of the legality of operations by national police forces and the exercise of law and order responsibilities by Member States "where such action is a matter if (sic) national law". It is implicit from this Article that the Praesidium is proposing that the Court has jurisdiction over the matters dealt with in this Title. The Praesidium's Explanatory note makes clear the intention to sweep away the current limitation on the Court's jurisdiction contained in Articles 68 TEC and 35 TEU. Second, the Explanatory note also makes clear that the exception does not apply where the action in question is carried out pursuant to EU law.

35.  The Union's business is no longer solely economic, as recent and current activities in relation to such matters as fraud, organised crime, drugs, terrorism, human trafficking, immigration and border controls clearly demonstrate. As we said in our recent Report on the EU Charter of Fundamental Rights,[26] were the Charter to become legally binding on the institutions and bodies of the Union across the whole area of EU law the jurisdiction of the ECJ should be extended in relation to those areas where it is at present restricted, ie Title IV TEC (Justice and Home affairs) and Title VI TEU (police and criminal matters) and the full range of remedies made available. Whereas at present remedies are largely confined to actions within the First Pillar and the major EU institutions and bodies, remedies should extend to the whole field of Union activities. As recent developments, such as the European Arrest Warrant, show, such matters may impinge directly on the interests and rights of the individual. We recommended that the ECJ should be entitled to measure the legality of Union action, including that of Member States and their authorities when implementing EU law, against the norms contained in the Charter and the ECHR. Accordingly we are pleased to see that the new Treaty will remove the current limitations of the Court's jurisdiction in relation to justice and home affairs matters. We note that Article 9 contains a very limited (indeed an apparently tautological) exception.

Chapter 1: Policies on border checks, asylum and immigration

Article 10:[Checks on persons at borders]

1.  The Union shall develop a policy with a view to:

-  ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;

-  carrying out checks on persons and efficient monitoring of the crossing of external borders;

-  the gradual introduction of a common integrated management system for external borders.

2.  For this purpose, the European Parliament and the Council, in accordance with the legislative procedure, shall adopt laws or framework laws concerning:

-  conditions of entry for a short stay for nationals of third States, including the visa requirement and exemption from this requirement, the rules, procedures and conditions of issue of permits for crossing external borders, and the uniform format for such permits;

-  the controls to which persons crossing external borders may be subject;

-  the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;

-  any measure necessary for the gradual establishment of a common integrated management system for external borders;

-  the absence of any controls on persons, whatever their nationality, when crossing internal borders.

Explanatory note

"Paragraphs 1 and 2, drawn largely from existing Article 62 TEC, reflect the Group's conclusions and the outcome of the plenary session concerning external borders. The concept of the gradual introduction of an integrated border management system refers back to points mentioned in the conclusions of the Seville European Council of June 2002 (cf. paragraphs 31 and 32. The content of Article 62 TEC has, however, been shortened so as to take account of the provisions that have already entered into force since its adoption."


36.  Article 10 largely reproduces the 'border control' provisions of Title IV (Article 62(1) and (2) TEC). There is, however, one important addition. There is now a specific legal base for the gradual introduction, at an EU level, of a 'common integrated management system for external borders'. This follows a number of EU initiatives in the field, most notably the Commission Communication on the 'integrated management of external borders and a subsequent Council Action Plan.[27] Further political impetus was given by the Seville European Council (June 2002), which called on the Council, the Commission and the Member States to implement a series of steps before June 2003.[28] It is, however, not yet fully clear what an 'integrated management for external borders' will entail and whether it will lead to the gradual establishment of a 'European Border Guard'. This is the subject of an inquiry currently being undertaken by Sub-Committee F and it is therefore something to which we will return in more detail.

37.  An important development relating to Article 10 is the shift from unanimity (and consultation of the European Parliament) to the adoption of measures by co-decision and QMV, in accordance with the "legislative procedure" referred to in Article 10(2). This will be controversial in view of the close link between border control functions and national sovereignty. As mentioned above, the document is silent on the question of the special position of certain Member States, including the UK, in relation to the subject matter of this Title (see paragraphs 9-13 above).

25   Recent examples of national initiatives where such problems were encountered are the Spanish initiatives on drug trafficking on the high seas and private security, the Danish initiatives on war crimes and confiscation and the Belgian proposal on restorative justice. Back

26   The Future Status of the EU Charter of Fundamental Rights (6th Report, Session 2002-03, HL Paper 48). Back

27   Doc COM (2002) 233 final and Council Doc 9834/02. Back

28   Presidency Conclusions. Doc SN200/02, at paragraphs 31 and 32. Back

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