Article 31:Implementation of the area
of freedom, security and justice
|1. The Union shall ensure an area of freedom, security and justice:|
- by adopting laws and framework laws intended in particular to approximate national laws in the areas listed in Part Two of the Constitution;
- by promoting mutual confidence between the competent authorities of the Member States, in particular on the basis of mutual recognition of judicial and extrajudicial decisions.
- by operational cooperation between all competent authorities of the Member States for internal security.
2. Within the area of freedom, security and justice, national parliaments may participate in the evaluation mechanisms foreseen in Article [4, Part Two] of the Constitution, and shall be involved in the political monitoring of Europol's activities in accordance with Article [Article 22, Part Two) of the Constitution.
3. In the field of police and judicial cooperation in criminal matters, Member States shall have a right of initiative under the arrangements set out in Article [8, Part Two] of the Constitution.
"This article contains the specific characteristics of Union action within the area of freedom, security and justice. The first paragraph mentions the areas of Union action, namely legislative and operational cooperation (with the latter being a characteristic specific to this Union policy).
Paragraph 2 specifies the role of national parliaments, in particular concerning evaluation conducted in the Council of the implementation of Union policies (see Article 4, Part Two and their involvement in the political monitoring of Europol (see Article 22, Part Two).
Paragraph 3 mentions another specific characteristic, namely the Member States' right of initiative, which would co-exist alongside the Commission's right of initiative in the fields of police and judicial cooperation in criminal matters."
14. The instruments listed and defined in Article
24 (European laws, European framework laws, European decisions
etc) are intended to apply in all areas of the new Constitution,
including those which currently fall under the Second Pillar (Common
Foreign and Security Policy) and Third Pillar (Cooperation in
police and criminal matters). But as the Working Group IX on Simplification
recommended, what are now Second and Third Pillar matters could
be subject to special rules. Hence Article 31 has been produced.
The two "specific characteristics"
of Freedom, Security and Justice are (1) operational cooperation
and (2) Member States' right of initiative.
15. Article 31 contains a number of important
innovations. First, Article 31(1), second indent, 'constitutionalises'
the principle of mutual trust/confidence between the competent
authorities of the Member States. The principle of mutual recognition
has been "the cornerstone of judicial cooperation"
and a fundamental feature of the creation of an area of freedom,
security and justice. However, the term 'competent authorities'
is potentially wide and unrestricted. So too is the reference
to "extrajudicial decisions". Some clarification is
needed as to the extent this provision would reach beyond the
recognition of judicial decisions and judgments.
16. Article 31(1) clearly separates legislative
measures from operational cooperation. Indeed there would, for
the first time, be express reference to 'operational cooperation'
between "all competent authorities of the Member States
for internal security" (emphasis added). Again the meaning
of 'authorities' is unclear but presumably in this context it
is intended to cover not only judicial (including Continental-style
investigating magistrates) authorities but also police and customs
Most significantly, the Article gives prominence to "operational
cooperation", which may be of particular importance in policing
17. Article 31(2) is also innovative in two respects.
First, it implies the establishment of 'evaluation mechanisms'
(for more detail see comments on Article 4 below). Second, it
provides for an enhanced role for national parliaments, in participating
in such evaluation as well as in monitoring Europol's initiatives.
We welcome both these developments. We support, in particular,
the notion of national parliaments scrutinising the activities
of Europol, though as we said in our recent Report on Europol,
that scrutiny might better be done by national parliaments working
together with the European Parliament so as to avoid unnecessary
duplication of work.
There is, however, a problem with the language of the second clause
of Article 31(2). The words "shall be involved" imply
that the new Constitutional Treaty can impose obligations on national
parliaments. We therefore suggest that "shall be involved"
should be deleted or that "shall" be replaced by "shall
have the right to".
18. Article 31(3) maintains Member States' right
of initiative in the field of police and judicial cooperation
in criminal matters.
But following the Working Group's suggestion, Member States' initiatives
would have to have the support of a quarter of Member States.
This is a welcome limitation. The "arrangements"
are set out in Article 8 (see below).
Title X: Area of Freedom, Security and
Article 1:[Definition of the area]
The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and taking into account the different European legal traditions and systems.
It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control based on solidarity between Member States and fairness towards third-country nationals.
The Union shall ensure a high level of safety by measures to prevent and combat crime and promote coordination and cooperation between criminal police and judicial authorities and other competent authorities, as well as by the mutual recognition of judgments in criminal matters and the approximation of criminal laws.
The Union shall facilitate access to justice, in particular by the free movement of documents and judgments in civil matters based on the principle of mutual recognition.
"This Article constitutes the general definition of both aspects of the area of freedom, security and justice: the legislative and the operational. The text is based on the Working Group's final report. The general reference to the principles of subsidiarity and respect for the different legal traditions and systems is included in this provision. The same applies to the reference to solidarity in the field of the common policy on immigration, asylum and external borders. In the field of police and judicial cooperation in criminal matters and judicial cooperation in civil matters, the Working Group - following the Tampere conclusions - decided that the principle of mutual recognition of judgments should be explicitly enshrined in the Constitution. By the same token, and in the light of the Tampere conclusions, it was considered appropriate to add the reference to access to justice."
19. Article 1 reproduces the main elements that
constitute an 'area of freedom, security and justice' found in
the current Treaties. But some changes have been made. First,
there is an express reference to the need to respect fundamental
rights and to take account of "the different European legal
traditions and systems". This is welcome.
20. Second, common policies on asylum, immigration
and border controls have to be based on 'solidarity between Member
States and fairness towards third country nationals'. The issue
of solidarity between Member States in this context is not new
and was discussed when we considered the so-called Dublin II Regulation.
It is also under consideration in the current inquiry by Sub-Committee
F into the European Border Guard. The principle of solidarity
is also the subject of a separate Article 13, on which we comment
21. Third, Article 1 also makes express reference
to the Union facilitating 'access to justice'. The Praesidium
justifies its inclusion by reference to the Tampere Conclusions.
We note that Chapter VI of the EU Charter of Fundamental Rights
may be relevant here, especially Article 47 which contains a broad
statement relating to the provision of legal aid. The phrase
"access to justice" also appears in Article 12(2), where
it seems clear that it is not restricted "in particular"
to the free movement of documents and judgments as in Article
1. The implications (most notably financial) of these statements
on access to justice may be considerable. We return to this in
the context of Article 12 below.
22. Finally, the Praesidium's Explanatory note
makes no mention of the special rights which apply to the UK.
The reference in the second paragraph of Article 1, to "ensure
the absence of internal border controls for persons", has
to be read in the light of the Protocols (described at paragraphs
9-13 above) enabling the UK to maintain its border controls.
8 Ie to harmonise. Back
As the Praesidium's Explanatory note indicates, Article 31 contains
two "characteristics specific" to Union policy on Freedom,
Security and Justice. This terminology links Article 31 with Article
24 (the legal acts of the Union). See the Praesidium's note to
Article 24 (reproduced in our Report on Articles 24-33) and our
commentary at paragraph 15 of that Report). Back
Presidency Conclusions, Tampere European Council 15/16 October
Those currently identified in Article 29 TEU. Back
Europol's role in fighting crime (5th Report, Session 2002-03,
HL Paper 43, at para 40). Back
Member States currently have a right of initiative in respect
of matters falling under Title IV TEC (Visas, asylum, immigration
and other policies related to the free movement of persons). That
right is presently shared with the Commission. From 1 May 2004,
the Commission has the sole initiative as regards those matters.
See Article 67 TEC. Back
The Praesidium notes that since the articles in Part Two of the
Constitution will have no headings, the headings in square brackets
are given simply as an aid to Convention members at this stage,
but will disappear in the final version. Back
The subject of our Report: Asylum applications: who decides?
(19th Report, Session 2001-02, HL Paper 100). Back