REMESAS

V .l) The besinnin2 o f the IGC negotiations on the Third Pillar

Given their nature, there was a natural expectation that the problems surrounding Third Pillar co-operation would be addressed during the IGC negotiations that were due to take place in 1996. At the time of the Maastricht negotiations, Member States had been highly aware that some of the new provisions would cause considerable difficulties. Therefore, they had set a fixed deadline for revision in the hope that time would have allowed them to build a wider political consensus around some of the thorniest issues. Back in 1992, they had originally planned for the revision to focus on: 1) the Common Foreign and Security Policy (Art. J.4.6 and Art. J.IO TEU); 2) the extension of the codecision procedure (Art. 189b.8 EC); 3) how to add the energy, tourism and civil protection fields to the Community domain (Declaration n° 1); 4) examining the issue of the hierarchy of acts (Declaration n° 16); and 5) how in general to revise policies and other forms of co-operation in order to ensure the effectiveness of EU action (Art. B TEU).'

In the five years that followed the original signature of the Maastricht Treaty, the Union was faced with new challenges, notably the accession of three new Member States and the daunting prospect of a future enlargement to the East. It thus seemed logical to include these issues in the broader framework of the IGC negotiations. It was largely under the impulse o f the new Member States^ that a proposal to bring the Union closer to its citizens eventually gained momentum. Thus,

‘ This provision in particular served as a stepping stone for the revision of the Third Pillar co­ operation measures. The Third Pillar had not been originally explicitly listed for revision because of Art. K.9 TEU. This passarelle clause had been intended as an in-built mechanism to allow internal change without a major Treaty revision. As Art. K.9 was never used, the inherent weaknesses o f Third Pillar co-operation slowly came to light in the intervening years (see Chapter IV.8).

^ See H. Kortenberg, ‘La négociation du Traité - Une vue cavalière’ (1997) 33 Revue Trimestrelle de Droit Européen, p. 711.

issues concerning fundamental rights, internal security, employment, the environment, subsidiarity and transparency were also placed on the IGC agenda. As a consequence, the IGC’s scope was radically reshaped from a mere ‘technical’ revision o f possible malfunctions to a broad ranging Treaty-reshaping occasion.

The actual negotiations lasted for a year and a half under the Italian, Irish and Dutch Presidencies. In anticipation o f these negotiations, the Corfu European Council of June 1994 had instituted a Reflection Group composed of representatives of the Member States’ Foreign Ministers and presided by the Spanish Minister, Mr. Westendorp. The group was charged with the drawing up a report covering the issues to be revised and the ensuing options available to the IGC. Before the Reflection Group began its proceedings, the EU institutions were asked to submit reports on the operation o f the TEU. These reports were submitted during the first half of 1995 and constituted the first official assessment o f the functioning of the EU two years after the entry into force of the TEU.^

The Reflection Group submitted its report to the Madrid European Council in December 1995. Its analysis on the shortcomings of Third Pillar co-operation was surprisingly frank and offered an interesting insight into the state of the negotiations. On some vital points, consensus building proved impossible and the report limited itself to merely ‘registering’ the various national disagreements. There was a general acknowledgement that ‘the magnitude of the challenges is not matched by the results achieved so far in response to them’."* Three issues were pointed out as the main reasons for the inadequacies of JHA co-operation. The first one entailed the ‘ [l]ack of objectives and o f a timetable for achieving them. Instead o f placing emphasis on the consolidation of an area of freedom and security in which there are no internal

^ The EU Commission, the Council, the HP, the ECJ, the Court o f First Instance, the Court of Auditors, the Economic and Social Committee and the Committee of the Regions all submitted reports. The ECJ report can be found in (1995) 31 Revue Trimestrelle de Droit Public, p. 678, whereas the EP report is in OJ 1995 (3151/13.

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frontiers and where persons can move freely - the goal at which all action should be targeted - Art. K merely lists areas of common interest’.^

The lack o f a coherent definition of the common goals o f the JHA co­ operation stemmed directly from the resistance of some Member States to the idea of formalising the previous EPC into the Treaty framework. Such Member States had particularly disliked the possibility - however remote - that a ‘common policy’ in the Community sense might eventually ensue from such co-operation. The fields listed in Art. K TEU where simply areas were Member States shared some common interests. The subsequent achievements in this field were more the result o f the ‘superimposition’ o f identical national wills than of a concrete effort of policy building. In many instances, the degree of agreement on an issue did not go beyond the formulation of the problem,^ in more extreme cases the mere ‘perception’ o f the problem varied widely. The Madrid European Council, spurred on by the Westendorp Report had tried to address the lack of common objectives by requesting that JHA Ministers draw up a list of priorities for co-operation for the following two years. It took the Ministers one year to agree on the priorities and the annex to the Decision^ reveals how common initiatives were well under way in most of the

^ See supra n° 4, p. 16, point 48. This point highlighted the inherent tension in the expansion of EU asylum co-operation from a mere collection o f ‘flanking’ measures to a co-operation with its own independent objectives. This gradual transition was possible precisely because of the fact that Art. K.1.1 only contained a generic reference to ‘asylum matters’. See Chapter IV.5-6.

* See, for instance, the impossibility of agreement on common controls over the EU’s external borders (the dossier had been blocked since the Commission proposal in 1993), the legal status of third country nationals resident in the EU, the EUROPOL dossier, the fight against drugs etc., all highlighted in H. Labayle, ‘La coopération européenne en matière de Justice et d’affaires intérieures et la Conference Intergouvemamentale’ (1997) 33 Revue Trimestrelle de Droit Européen, p. 6; and also J. Monar, ‘European Union - Justice and Home Affairs: a balance sheet and an agenda for reform’ in G. Edwards and A. Pijpers (eds), The politics o f European Treaty reform - The 1996 Intergovernmental Conference and beyond (Pinter pub., London, 1997), p. 328.

’’ ‘Council Resolution of 14/10/96, on laying down the priorities for co-operation in the field of Justice and Home Affairs for the period from 1 July 1996 to 30 June 1998’, OJ 1996 C319/1. See comments on this work-programme in Chapter IV.7. The programme was nonetheless important because it highlighted the transition that was taking place in asylum co-operation (see supra n° 5).

prioritised fields. Therefore, the Decision represented more of an effort to put past initiatives into a coherent shape, rather than to formulate future objectives, ®

The lack of effective instruments for pursuing common action in JHA was the second problem highlighted by the Reflection Group report. Most of the instruments listed in Art. K.3 were originally formulated for the Second Pillar on Common Foreign and Security Policy. However, as the report pointed out ‘external policy is rarely normative and requires flexibility of action, whereas matters relating to the security o f citizens require legal protection and, therefore a legislative framework’.^ At the time of the report the Council had never adopted any ‘joint position’ (Art. K.4.a), but it had agreed on two ‘joint actions’ (Art. K.3.b) and drafted one Convention on Extradition. It had nonetheless adopted over 50 Recommendations, Resolutions and Conclusions, all of which were ‘old’ instruments available before the TEU.’® The slow ratification process of international conventions" and the inability to reach any compromise on the eventual competence o f the ECJ over them - as provided by Art. K.3.C - effectively deprived Member States of the only legally-

® In truth, one of the main reason for the lack of clear objectives lay in the age-old dispute over the interpretation of Art. 7a EC. The Reflection Group report briefly touched upon the issue, but failed to adequately stress it. In its general considerations on JHA co-operation the Report mentioned the ‘context o f a single market, an open society and the abolition of the Union’s internal frontiers in accordance with the Treaty [...]’ (p. 16, point 48). The Edinburgh European Council of December 1992 had to officially acknowledge that the free movement of persons, as provided by Art. 7a, could not be completed by 1 January 1993. That same year the EP started an action against the Commission under Art. 175 EC for failure to put forward the proposals necessary to dismantle national internal frontiers. As a response, in 1995 the Commission did present three proposals to the EU Council concerning the free movement of persons across the ‘border-free’ Community (the so-called ‘Monti package’: ‘Commission Proposal for a Council Directive on the right of third-country nationals to travel in the Community’, COM(95)346 final; ‘Proposal for a Council Directive concerning the abolition o f controls on persons at internal frontiers’, COM(95) 347 final; ‘Proposal for an EP and Council Directive amending Directives 68/360/EEC and 73/148/EEC’, COM(95) 348 final). However, the measures were stalled once again because of national disputes over their legal basis. In this context, the Schengen framework enabled the majority of EU Member States to bypass this stalemate, but it did not offer a more effective alternative to the intergovernmental co-operation formula o f the JHA. Schengen itself was in fact suffering some of the same shortcomings that affected the functioning of the Third Pillar.

^ See supra, n° 4, p. 16, point 48.

For a comprehensive overview of these acts, see the ‘Commission’s Report for the Reflection Group’ of May 1995, pp. 94-98.

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binding instrument in the Third Pillar. As possible alternative measures, the report mentioned that some national proposals highlighted the suitability of the directive instrument for this delicate area. Others, instead, put forward the idea of conventions entering into force once a certain number of ratifications had occurred. Most Member States seemed to agree that the overall requirement of a unanimity vote had proved to be the most formidable obstacle to any consensus building.

Finally, the report also pointed out that all Member States agreed on the working structures being too complex, thus making the decision-making process extremely cumbersome. The JHA co-operation lacked ‘a true institutional driving mechanism’, s i n c e all the typical Community mechanisms had been severely limited in order to keep the nature o f the co-operation intergovernmental. The Commission had a shared initiative in a number of fields only (Art. K.1.1-6), the EP could merely be ‘consulted’ and the ECJ had no competence at all. As the Commission pointed out in its own report, a Member State not holding the Presidency had used its right of initiative only once, the Commission itself only twice. All proposals and initiatives still emanated from the Presidency as in the past. Furthermore, the decision formation process was encumbered by two additional negotiating levels introduced by the TEU, notably the K.4 Committee and the Group o f Directors,'^ the latter situated between the working groups and the K.4 Committee. Co-operation between COREPER and the K.4 Committee was notoriously uneasy,'" due to very different working methods.

Whereas the Westendorp Report registered an overall agreement on the fact that the JHA co-operation was plagued by serious structural problems, national solutions varied immensely. In broad terms, there appeared to be three possible options. The first one would have been to take advantage of the Art. K.9 passarelle

12

See supra n° 4, p. 16, point 48, and also the Commission report, supra n° 10, p. 53 et seq.

See Chapter IV.7.

See M. Lepoivre, ‘Le domaine de la Justice et des Affaires Intérieures dans la perspective de la Conférence Intergouvemementale de 1996’ [1995] Cahiers de Droit Européen, p. 323, at p. 339.

clause and transfer most Art. K.l fields to the EC Pillar. No Member State at any stage o f the negotiations seriously put forward such a proposal. The second option would have been to maintain the current Pillar division and to develop practical solutions to improve co-operation. The United Kingdom, Ireland and Denmark were the strongest advocates of this position, but other Member States such as Sweden also initially supported this view. The underlying reasons for such a position obviously varied among the Member States and ultimately determined the complex structure o f the new Treaty. The British and Irish opposition to any structural change was mainly conditioned by their interpretation of Art. 7a EC. This led them to fear that any ‘communitarisation’ of the Third Pillar fields would have inevitably entailed their obligation to abolish border controls. The Danish position was determined by the Edinburgh Declaration of 1992 which limited their participation in JHA solely to the intergovernmental framework. This Declaration had played an essential role in ensuring Danish ratification of the TEU in its second referendum and no politician was willing to risk opening a new debate. Sweden in its turn was bound by the Nordic Union and was worried about the repercussions of the abolition o f EU internal borders on its Nordic partners. The accession of the Nordic Union Members to the SC in December 1996 considerably eased the Swedish position.

Finally, a majority of Member States appeared to support the third possible option, a partial ‘communitarisation’ of the Third Pillar. Most agreed that the areas to be transferred should have included the crossing of external borders and asylum and immigration policy and that majority voting should have been introduced. The issue of how to incorporate Schengen into the EU framework was also on their agenda. ‘Flexibility’ rapidly became the keyword, both to circumvent the strenuous British and Danish opposition and to accommodate the individual national views within the majority group. The idea of a flexible participation in the new provisions, coupled with the proposal of ‘closer co-operation’ among certain Member States within the

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Treaty framework was already being strongly promoted by the Franco-German partnership by December 1995.‘^

The IGC preceding Amsterdam was incidentally the last one where the traditional Franco-German partnership functioned as a ‘driving motor’ for integration. See further, Chapter VI.7.

V.2) The Dublin vroposal o f December 1996^^

As requested by the European Council in Florence in June 1996, the Irish Presidency set out to prepare a ‘general outline for draft revision of the Treaties’. Three initiatives were to prove of fundamental importance in the shaping of the new provisions on the JHA co-operation. The first one was a courageous proposal presented by the Commission in September 1996.'^ It defined the new overall objective of JHA co-operation as the establishment of an ‘area of liberty, security and justice’ within the European Union. The second initiative consisted of a common Franco-German contribution towards the definition of the notion of ‘closer co­ operation’,'^ to be included both in the EC Pillar and in the JHA co-operation. The final impulse to the Irish proposal came in December 1996 from a joint letter by Chancellor Kohl and President Chirac,^® which stated that the ‘security’ dossier was to be given ‘absolute priority’ at the Dublin summit. It underlined that the creation of a ‘European common juridical space’ should entail clear objectives, common asylum, immigration and border control policies, extensive majority voting in these areas and a fixed progressive calendar of implementation (possibly of five years) with specific ‘support measures’ - a particular French priority throughout the negotiations. Enhanced ‘flexibility of participation’ would have been the key to overcome individual national resistance to further integration.

‘The EU today and tomorrow - Adapting the EU for the benefit of its people and preparing it for the future - a general outline for a draft revision o f the Treaties - Dublin IT, CONE 2500/96 CAB, EN, 5/12/96.

Florence European Council, Presidency Press Release, 1345/96, p. 5.

CONE 3912/96 o f 18/9/96. It constituted the final reshaping o f ideas already put forward earlier that year in another Commission document, COM(96)90 of 28/2/96. The Commission proposal was seen as a ‘blueprint’ for a new approach to Union citizenship based on a ‘European Social Model’ of an inclusive nature (see J. Shaw, ‘The many pasts and futures of citizenship in the European Union’, 1997 22 EL Rev., p. 554 at p. 555).

See Europe n° 6836 of 19/10/96, pp. 3-4.

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The document presented by the Irish Presidency at the Dublin summit of December 1996 contained extremely innovative proposals in the JHA field, including the communitarisation of sensitive Third Pillar matters, such as asylum and immigration. Not all of the proposals were retained in the course of the following negotiations, but the final draft of the Treaty signed in Amsterdam the following June certainly owed a great deal to the courageous proposals tabled by the Irish Presidency. It appeared remarkable that innovative developments even occurred in areas which the Irish Presidency had indicated as too controversial to be reformed, notably the jurisdiction of the ECJ.

The starting point of the Irish proposal was the realisation that the European Union should be better equipped to meet the challenges of the next century. Such challenges were defined as the ability to face the rapid evolution o f international events, the globalisation of the world economy, terrorism, drug trafficking and international crime, migratory pressure and ecological imbalances. Consequently, the proposal considered five major fields to be reformed: the first one concerned the establishment of ‘an area of freedom, security and justice’, the second the enhancement of citizens’ rights, the third foreign policy measures, the fourth the Union’s institutions and finally there was to be a chapter on ‘enhanced co-operation