ILPA Response to the Commission's Communication :
Area of Freedom, Security and Justice: Assessment of the Tampere Programme
and Future Orientations
COM (2004)401 final, 2 June 20041
Introduction
On 2 June 2004, the
Commission adopted its assessment of the progress in achieving an area of
freedom, security and justice as set out in the European Council Conclusions of
Tampere, October 1999. In the document, the Commission congratulates itself for
“progress to date which has been undeniable and tangible”. The Commission
indicates that where there have been weaknesses, these have been the result of
the fact that “it was not always possible to reach agreement at European level
for the adoption of certain sensitive measures relating to policies which remain
at the core of national sovereignty”.
The Commission also
indicates that it considers that once the instruments are adopted “the
institutional limits regarding the real possibilities for verifying the
implementation of policies by national authorities, given the limited role of
the Court of Justice and the restricted powers of the Commission as regards
police and judicial cooperation in criminal matters are a real obstacle to
ensuring that the instruments and decisions adopted are actually effective”.
In light of the
Commission’s own assessment, inherent in these statements, it is difficult to
accept that the first five years of an area of freedom security and justice
have been a success at all.
The Tampere
Conclusions: A measure of success?
If regard is had to
the principles set out in the Tampere Conclusions and the measures adopted, the
assessment must be even more negative.
The Tampere
Conclusions call for:
1. Respect for
the “shared commitment to freedom based on human rights, democratic institutions
and the rule of law”.
The measures which
have been adopted in the field of immigration and asylum have noticeably failed
to fulfil the commitment of respect for human rights – we would refer you in
particular to the action of the European Parliament regarding the failure to
respect the right to family life protected by Article 8 European Convention on
Human Rights in the Family Reunification Directive for third country nationals.
Unfortunately there are many other examples of measures adopted where the
standards of human rights compliance have been abysmal. We refer you to this
association’s alternative scoreboard on the measures. While the adopted
instruments proclaim (often in their Preambles) that they are in conformity
with the ECHR, the EU Charter of Fundamental Rights and the Geneva Convention
relating to the Status of Refugees, such mere references are hardly the same as
provision for a robust framework containing detailed human rights safeguards.
We would further draw attention to the draft Directive
on Asylum procedures represents a significant diminution of the protection of
refugee. Many provisions aim to deny
asylum seekers access to asylum procedures and to facilitate their transfer to
countries outside the EU. This amounts
to an abdication from international law obligations. Indeed, the UN High Commissioner for
Refugees Ruud Lubbers expressed concerns about the Directive, ‘warning that
several provisions … would fall short of accepted international legal standards
… [and] … could lead to an erosion of the global asylum system, jeopardizing
the lives of future refugees.’ The day after political agreement on the
Directive was reached, UNHCR reiterated its concerns, in particular in relation
to the Directive’s safe third country provisions and those non-suspensory
appeals, which would allow Member States to deport asylum seekers whilst their
appeals were pending. It noted in
particular that the Directive would allow ‘a number of .. restrictive and
highly controversial practices that are currently only contained in one or two
member states national legislation but could, as of 1 May 2004, be inserted in
the legislation of all 25 EU Member States.’
As regards respect for the principle of rule
of law, again the measures have failed to meet this objective either. The
action by the Commission against the Council regarding the latter’s assumption
of powers to adopted delegated legislation referred to elsewhere in these
submissions indicate the degree of disregard for the principle of rule of law
at the heart of the project. Moreover, the Council has also adopted measures
without waiting for the opinion of the European Parliament. For example, both
the Directive on the obligation of carriers to communicate passenger data
and the Decision on the organisation of joint flights for removals, were
adopted in this way by the JHA Council at its meeting on 29 April 2004 on the
somewhat spurious basis that the Council had “exhausted all the possibilities
to obtain in time the opinion of the European Parliament”.
Given the potentially serious impact of these measures on the human rights of
returnees, such disregard in the legislative process for the role of the EU’s
elected representatives can hardly advance adherence to the rule of law
principle.
2. The aim is an
open and secure European Union fully committed to the obligations of the Geneva
Convention.
Respect for the
Geneva Convention relating to refugees has been most conspicuous by its absence
in the legislative programme of the first five years of JHA. The UN High
Commissioner for Refugees himself has heavily criticised the proposed directive
on asylum procedures, a key element of the common asylum policy, on the grounds
that it does not fulfil the requirements of the Convention. Instead of taking
those criticisms into account, the Council appears to have aggravated those
parts of the directive which were already considered unacceptable to the
guardian of the Geneva Convention. This is rather far from the “respect” called
for by the Ministers at Tampere.
3. The common
policies must be based on principles which are both clear to our citizens and
also offer guarantees to those who seek protection in or access to the European
Union.
If there is one
part of the JHA acquis which lacks any clarity or consistency it is the rules
regarding access to the EU territory. The incorporation of the Schengen acquis
regarding the common visa and border policy has lacked any sort of
transparency. Individuals who seek visas to come to the EU for short stays are still
subject to a bewildering collection of different rules, partly in the Common
Consular Instructions, partly in national law or practice at the consulates.
Even agreement on a simple decision on border crossing points was only just
adopted on 29 April 2004. There is still no agreement on the proposed measure
defining the standard rate of subsistence which an individual seeking a visa
must show in order to satisfy the support requirements. So instead at each
consulate the officials responsible for visas are still setting their own rates
either on the basis of their own opinions, or national circulars. Any attempts
to introduce a right of appeal against refusal of short stay visa has met with
fierce resistance even though only such a right of appeal will result in a
common interpretation of the rules.
4. A common
approach must also be developed to ensure the integration into our societies of
those third country nationals who are lawfully resident in the Union.
In EU law regarding
migrant workers, integration involves two key elements: the right to equal
treatment in employment and the right to family reunification together with the
best conditions for those family members joining the worker. When the principle
of integration is applied to third country nationals lawfully resident in the
Union a completely different and contrary picture seems to be emerging. It is
about denying the right to move for the purposes of employment (for instance in
the Long Term Residents Directive) unless integration tests have been
satisfied; preventing family members from joining their principal in a Member
State unless they have fulfilled integration requirements (see the Family
Reunification Directive). Far from faithfully implementing the Tampere Council
call for ‘integration’ as it was understood at the time of the Council Meeting
in 1999, the Commission has participated in the deformation of the concept into
a mechanism for denying equal treatment and family reunification.
In our view the
self-congratulatory tone of the Communication is not justified in light of the
Tampere Conclusions and the results of the first five years of an area of
freedom, security and justice. In our view the Commission needs to consider
very seriously its role in the undermining and abusive interpretation of the
European Council’s Conclusions in Tampere which has taken place over the past
five years.
Is the
Council solely to blame?
One common refrain
in the Communication is underlying criticism that while the Commission has
proposed adequate and measured proposals, the Council has changed them and
undermined their effectiveness or efficiency. We do not consider this argument
to be justified. A quick perusal of the minutes of meetings where the different
adopted measures in JHA are considered reveals the proposed changes and
discussion of each measure and the actor suggesting the change. What is most
noticeable is the silence of the Commission in these documents. From the
records of proceedings, it would appear that the Commission did no more than present
a proposal and then leave it to the Member States representatives from the
working groups to COREPER to distort the measure. There are very few
indications of the Commission taking a position in the meetings and assisting
the resolution of issues in a manner favourable to its initial proposal. In two
instances in particular, the Commission has effectively relinquished
legislative initiative to the JHA Council as seen in the latter’s adoption of
Conclusions on conditions for the reception of asylum seekers and the
development of the proposed Visa Information System (VIS),
which have both preceded the Commission’s own legislative proposals in these
areas.
This apparent lack
of “ownership” by the Commission as regards the proceedings in the Council regarding
its proposals must be laid at the feet of the Directorate General responsible:
DG Justice and Home Affairs. At the same time as the proposal of measures in DG
JHA, another DG, Employment successfully negotiated the passage through the
Parliament and Council of two directives on discrimination (on the basis of
race and other grounds contained in Article 13 EC) and a directive extending
the EU coordination of social security mechanism to third country nationals
lawfully within the Union. Both of these fields are highly sensitive and touch
central issues of state sovereignty yet they were successfully adopted without
their content being irreparably compromised as has happened with so many of the
JHA proposals.
A lack real
substance in the Commission’s assessment
The Commission’s
assessment of the Tampere programme is unacceptably lacking of substance. This
is most evident in the absence of any meaningful evaluation of the
measures adopted in the areas of justice and home affairs.
Achievement appears to be measured solely in terms of meeting the
objective of adopting the legislative programme called for at Tampere while
ignoring compliance with the fundamental principles set out in the Tampere
Conclusions. We have examined above how
the Tampere promises have been broken by a consistent failure to adopt human
rights compliant standards, most notably in the failure to fulfil the
requirements of the 1951 Geneva Convention on the Status of Refugees. We have
also highlighted how disregard for fundamental rights in the substance of the
measures adopted is likely to ensure a worrying volume of litigation, evidence
of which are the challenges currently pending before the European Court.
The Commission
cannot seriously be suggesting that it “has embarked on an exercise to evaluate
a first generation of instruments adopted following the Tampere European
Council.” Other than lacking a substantive analysis of the legislative
programme, it fails to examine key questions in relation to the impact of the
measures on those directly affected and to draw the necessary conclusions from
member states selective display of enthusiasm for harmonisation in these areas
– all of which will have a bearing on any future legislative programme.
European member
states’ little sense of solidarity in pursuing their narrow national agendas
has come at great cost especially to refugees and to the building of a fair and
efficient European protection system. Institutional problems and national
susceptibilities are being cited to excuse the shortcomings in the process,
particularly the failure to achieve a significant level of harmonisation of
asylum laws across the European Union. Lack of solidarity and effective
substantive harmonisation is of particular concern in the context of the regulation
to determine which member state is responsible for dealing with an asylum
application (Dublin II Regulation), which creates a heavy burden on the new EU
member states.
We are given no
indication as to how these shortcomings and imbalances will be addressed in the
second phase of harmonisation. It is particularly worrying that the Council and
the Commission are in the process of pursuing the objective of further
developing a common area of freedom, security and justice in the vacuum of a
substantive analysis of the impact of the measures so far adopted, some of
which are severely frustrating the achievement of the Tampere objectives.
Lack of
transparency and dialogue
While
welcoming the Commission’s call for contributions on the “Future of Justice and
Home Affairs”, we are bound to question the value of a consultation process for
which no follow up is being envisaged in the agenda for meetings of the JHA
Council during the Dutch Presidency (Council document 11122/04). Lack of
transparency and meaningful dialogue with civil society is a serious deficit in
the areas of Justice and Home Affairs, which needs urgently to be addressed.
The Commission’s communication acknowledges this in concluding that “there must
be a public debate on subjects which cover fundamental questions for our
societies and closely affect citizens’ daily life.” We call upon the Commission
to ensure that the Council’s views on the future of JHA are informed, amongst
others, by the responses received as a result of this consultation.
Inter-institutional
litigation: the warning shots
It should also be
noted that in the process of the development of legal measures in the first
five years of the Title IV competence, the Commission has both provoked and
been party to internal disputes between the Institutions which have given rise
to litigation in three instances already.
Visa Regulations
The Commission
itself has considered it necessary to take legal action to challenge the
legality of the Council’s reservation of implementing powers to itself in
Regulations 789/2001 and 790/2001.
Advocate General Léger has recently delivered his opinion in this case,
and has indeed suggested that the two Regulations are invalid on the basis that
the Council did not provide specific enough reasons for reserving implementing
powers, and that they should be annulled.
This raises interesting supplementary questions on the measures amending
the Common Manual or CCI since 2001.
Family Reunification
The European
Parliament, concerned about the restrictive nature of certain provisions of the
family Reunification Directive, has referred the matter to the European Court
of Justice. There are serious questions
raised about the compatibility of certain Articles of this Directive with the
right to family and private life guaranteed by Article 8 ECHR – notably in the
case of one of the most vulnerable groups in society, children, and one of the
most fundamental, closest, and important formative of family relationships,
that between parent and minor child. Notwithstanding
concerns raised during the process, and warnings from NGOs concerned in this
field (one even calling at one stage for the withdrawal of the Directive
entirely), the Commission and Council have effectively collaborated in the
production of a final document parts of which the Parliament has considered it
right to challenge before the Court of Justice.
Passenger Data Transfer Agreement
Although not
formally a title IV measure, this is clearly a closely linked issue. The high profile and controversial
conclusion of the Decision to conclude an agreement with the United States in
relation to the transmission of Passenger Name Record (PNR) Data is yet another
example of litigation emerging from the decision making process in the
implementation of the Title IV competence.
Again, despite vocal warnings from the Parliament, the Commission and
Council have proceeded, first with a Commission determination that Data
Protection arrangements are adequate, followed the same day by the conclusion
of the Agreement. The Parliament’s
requests were that it be adequately involved in the process (assent rather than
consultation), that data protection and privacy should be adequately protected
in accordance with EU law, and that the Agreement not be concluded before the
request for the Opinion of the Court of Justice on the pending agreement to
clarify these points has been dealt with.
These basic requests are hardly such that they should have been ignored
in this way, even with the constraints of time and the pragmatic difficulties
of negotiating such an agreement with the US.
The Commission decision that the data protection arrangements under the
agreement are adequate as well as the Decision to enter into the Agreement are
now both subject to a pending challenge which might result in their
annulment. In Commission and Council’s
rush to get the agreement concluded – even if not perfect, by its own admission
– has now predictably resulted in the real prospect of retrospective annulment
with all of the difficulties that this will entail. Another related example of the same worrying disregard for the
Parliament is the adoption of the Passenger Data Directive without even the
Opinion of the Parliament, even though it appears that this will not be the
subject of a formal legal challenge.
Asylum Procedures Directive
At the present time
the Asylum Procedures Directive is in the very final stages of negotiation,
with political agreement having been reached shortly before the accession of
ten new Member States and the final expiry of the first five-year period of the
Amsterdam competence in May 2004.
Nonetheless, serious criticisms have been made of the text, and if the
Directive is passed as it is there is an emerging likelihood that this too will
be challenged in the Court of Justice.
ILPA has produced a detailed document setting out the reasons why we
consider this Directive as drafted to be seriously defective and setting out
the case for annulment. Again there is
a mixture of procedural and substantive Fundamental Rights issues
involved. With the record of other
pending litigation the Commission and Council should note the gravity of these
concerns in order to avoid yet another high profile and potentially damaging
case in the Court of Justice. It is abundantly clear from the short survey
above of pending and possible litigation that the process of decision-making
has included a pattern of disregard for procedural propriety (in the way
legislation is passed and structured to permit future decision-making) and for
fundamental rights in the substance of the measures adopted. A worrying volume of litigation has emerged
already in a short period of time.
Clearly it is right that such defects should be challenged and
opportunity be given for them to be corrected, but the necessity for this
remedial action after legislation has been concluded is regrettable – and is a
sad reflection on the quality of the legislative process that has been
undertaken in the past five years.
Closer attention to procedural propriety, and taking more seriously the
fundamental rights obligations by which the EU and its Member States are bound,
would have avoided this spate of litigation which can only bring the EU and its
processes into disrepute and fuel public scepticism about the legitimacy and
desirability of this legislative process at the EU level.
Conclusions