I thank the committee for inviting us to brief it on the European Union treaty provisions governing the areas of freedom, security and justice. I propose, as requested, to speak on the existing treaty arrangements under Title IV of the Treaty establishing the European Community, TEC, and Title VI of the Treaty on European Union, TEU, as well the changes which the constitutional treaty will make. My principal focus will be on key institutional and procedural aspects of those arrangements and changes the constitutional treaty will make for this purpose. It might help if I commenced by briefly relating the existing arrangements and the constitutional treaty proposals to the broader context of the development of co-operation in justice and home affairs at European Union level.
The Maastricht treaty of 1992 brought co-operation in justice and home affairs within the structures of the Union for the first time. It created a separate justice and home affairs, JHA, pillar — distinct from the Community and common foreign and security policy pillars — and covered all aspects of JHA co-operation. This new third pillar emphasised the intergovernmental nature of JHA co-operation and its distinguishing features included non-Community legislative instruments, decision-making by unanimity, and quite limited roles for the Commission and European Parliament.
The Amsterdam treaty of 1997 contained further developments. It integrated certain aspects of JHA co-operation into the Community framework by way of a new Title IV of the TEC, together with certain other pre-existing arrangements under the Schengen Convention. The areas concerned were free movement, visas, asylum, immigration and judicial co-operation in civil matters.
One of the consequences of those changes was the introduction of special arrangements for Ireland, the United Kingdom and Denmark, In our case, the effect of these was that we were not bound by the new Title IV or Schengen provisions. The Amsterdam treaty left police and judicial co-operation in criminal matters subject to strengthened third pillar arrangements under the TEU. More generally, it made the development of the Union as an area of freedom, security and justice one of five key objectives of the Union.
The 2001 Treaty of Nice made a number of further technical changes by way of provision for enhanced co-operation, the introduction of qualified majority voting and co-decision for the purposes of some civil law matters, and provision for the establishment of Eurojust in the context of judicial co-operation in criminal matters. The 2004 constitutional treaty represents the next stage of the process begun in Maastricht.
That is the background to the current arrangements, which derive from the Treaty of Amsterdam, as amended by the Treaty of Nice. They create a distinction for the purposes of co-operation in respect of two key elements of justice and home affairs activities, which are visas, asylum, immigration, on one hand, and police and judicial co-operation in criminal matters, on the other. This means that co-operation in respect of those activities has bases in different treaties, which, in turn, has a number of important institutional and procedural consequences.
Title IV of the treaty establishing the European Community provides the framework for co-operation on visas, asylum, immigration, and other policies related to the free movement of persons, including judicial co-operation in civil matters. Key features of Title IV include that traditional European Community law-making procedures and mechanisms apply, with the result that the relevant legal instruments take the form of regulations and directives.
Following the transitional period, those instruments are now adopted by qualified majority and co-decision with the European Parliament for most purposes. The Commission, likewise, has the sole right of initiative and special arrangements apply in the case of Ireland, the UK and Denmark. Those special arrangements depend on Article 69 of the treaty and the related protocol on the position of Ireland adopted in conjunction with the Treaty of Amsterdam. The most important effect of the protocol is that we are not bound by asylum, immigration or civil law measures adopted under the title.
Ireland has, however, been given the possibility to opt-in in respect of these instruments on a case by case basis. This can be done either before an instrument is adopted or subsequently. In accordance with the provisions of Article 29.4.6o of the Constitution, a decision by Ireland to exercise an opt-in with regard to a Title IV measure must be approved in advance by both Houses of the Oireachtas. The special arrangements that apply to Ireland in the Title IV area also apply to the United Kingdom. Their origin lies in the common travel area which we operate with the UK and they were necessary to ensure the maintenance of that area.
For similar reasons, Ireland and the UK were specifically exempted from the obligations arising from the integration of the Schengen Convention, which is primarily concerned with the removal of border checks. This exemption is also subject to an opt-in facility for both member states. The exercise of the opt-in facility for the purpose of the Schengen measure requires the prior approval of both Houses of the Oireachtas.
Title VI of the Treaty on European Union is the framework in which police co-operation and judicial co-operation in criminal matters are dealt with. The overall objective is to provide citizens with a high level of safety, within an area of freedom, security and justice, by developing common action among member states in those fields. Key features of those arrangements include: recourse to dedicated JHA instruments, such as framework decisions, decisions and conventions; a requirement for unanimity for most decision-making purposes and the limiting of the role of the European Parliament; and the right of initiative to be shared by the Commission and member states.
Title VI measures retain a number of the intergovernmental characteristics of pre-existing co-operation under the Maastricht Treaty, while strengthening the role of the Commission and the European Parliament. The provision made for the adoption of framework decisions for the purpose of approximating the laws and regulations of member states was an innovation in the context of the Treaty of Amsterdam. Framework decisions were intended to be somewhat similar to directives under the treaty establishing the Community, in that they are binding on member states as to the result to be achieved but leave the choice of form and methods to each member states. Framework decisions are also increasingly used in the context of criminal law co-operation. The arrangements we have in place provide for the approval of both Houses of the Oireachtas being obtained prior to the adoption of a framework decision.
The treaty establishing the constitution for Europe will provide for further developments in the way in which co-operation in the areas of freedom, security and justice is organised. The new treaty, in keeping with the Amsterdam treaty, designates the area of freedom, security and justice as one of the key objectives of the Union. Co-operation for this purpose will be governed by Chapter IV of Part III of the treaty, which now deals with all aspects of freedom, security and justice.
When the treaty comes into force, there will be a number of changes in the way that freedom, security and justice matters are dealt with. There will be unified decision-making arrangements, with recourse to a single set of legislative instruments. The constitutional treaty will replace existing treaties and the current pillar structures. It will apply community legislative procedures to all the aspects of freedom, security and justice co-operation. This means that all freedom, security and justice measures will effectively be dealt with under a single process. Moreover, the form of legislation that will apply — European laws, framework laws, European regulations and European decisions — will be the same as those adopted under the rest of the treaty.
Certain other provisions and arrangements remain unique to the freedom, security and justice area. Under the arrangements set out in the new treaty, it will be the norm that freedom, security and justice legislative instruments will be adopted on the basis of what will henceforth be termed the ordinary legislative procedure, namely, qualified majority voting and co-decision with the European Parliament. However, a requirement for unanimity has been retained for certain specific issues. These include civil judicial co-operation in family matters, certain specified aspects of judicial co-operation in criminal matters and operational aspects of police co-operation.
The constitutional treaty provides that the Commission will have the sole right of initiative for measures on border checks, asylum, immigration and judicial co-operation in civil matters. Regarding judicial co-operation in criminal matters and police co-operation, the Commission or at least one quarter of the member states will be entitled to initiate a proposal for a legislative instrument. This will replace the existing right of individual member states to table proposals.
The current position is that Ireland is not bound by measures adopted in the asylum and immigration areas or in connection with the elimination of border checks under the Schengen arrangements. That situation is specifically preserved in Protocols 17, 18 and 19 of the new treaty. Ireland will continue to have an opt-in facility in respect of those measures and also for certain measures applicable to police co-operation.
The constitutional treaty includes some further specific features to which I wish to refer. It restates and updates the objectives to be pursued for the purpose of developing the European Union as an area of freedom, security and justice by reference to each of the sectoral areas concerned, namely, asylum and immigration, judicial co-operation in civil and criminal matters and police co-operation.
The treaty also provides an enhanced role for member state parliaments. Chapter IV and the protocol on the application of the principle of subsidiarity and proportionality include special provision concerning legislative measures directed towards police and judicial co-operation in criminal matters. The effect of those provisions is that a review will be triggered where a reasoned opinion represents one quarter — instead of the one third that is required in the ordinary way — of the votes allocated to national parliaments. Provision is also made for member state parliaments to have an enhanced scrutiny role in connection with Europol and Eurojust activities and to be provided with information.
The treaty emphasises respect for fundamental rights and the different legal systems and traditions of member states in the context of the future development of the European Union as an area of freedom, security and justice. It also recognises the right of member states to maintain or introduce higher levels of protection. In addition, the treaty makes provision for an emergency brake procedure in connection with proposed measures dealing with judicial co-operation in criminal matters. This procedure allows a member state which considers that a proposed measure would affect fundamental aspects of its criminal justice system to request the suspension of the negotiation of the proposal and that the matter be referred to the European Council. The Council can then decide to request the Commission, or the group of member states that initiated it, to redraft the proposal or it can approve the suspended measure. In all such cases, the European Council will act by unanimity.
The Chairman referred to the provisions in the treaty concerning asylum and immigration. The relevant provisions are contained in Article lll-267, which deals with immigration policy. Subsection 4 of this article provides — in the context of the development of a common immigration policy — that European laws or framework laws may establish measures to provide incentives and support for the action of member states with a view to promoting integration of third country nationals residing legally in their territories, excluding any harmonisation of laws and regulations of the member states. This is an innovation on the terms of the Treaty of Amsterdam. However, it is a measure with limited scope in that it attaches to measures which provide incentives and support for action by member states rather than by the EU in its own right. It excludes harmonisation of laws and regulations of member states in this area.
The issue of the rights of third country nationals is referred to in Article lll-267.2(b), which defines the rights — including the conditions that govern freedom of movement and of residence in other member states — of such individuals residing legally in a member state. While expressed in stronger terms in this treaty, this issue is also discussed in Article 73.4 of the Treaty of Amsterdam.
In addition to the formal framework for activities in the field of freedom, security and justice set out in the EU treaties, it should be noted that arrangements are in place for the development of general work programmes for the specific purpose of giving effect to the treaty's provisions. The Tampere programme, which was adopted by the European Council in 1999 in conjunction with the coming into effect of the Treaty of Amsterdam, served this purpose for the past five years.
The Hague programme on strengthening freedom, security and justice adopted by the Council last November now represents the headline agenda in the field of justice and home affairs. This programme is scheduled to continue for five years and is designed to provide a bridge between the existing treaty framework and the new constitutional treaty. It is comprehensive in scope and deals with all aspects of policies relating to the area of freedom, security and justice. A copy of the Hague programme has been included in the set of documents made available to the sub-committee.
I hope the information I have provided will be of assistance in outlining the principal elements of the existing arrangements and the new constitutional treaty, as well as their relationship to each other. I and my colleagues will be glad to respond to any questions the committee may have arising from my presentation.
