Justice and Home Affairs

Justice and Home Affairs in Europe

Overview of the European Union Justice and Home Affairs (JHA)

The ministers responsible for these areas meet formally six times a year in the Justice and Home Affairs Council, where they discuss progress made in cooperation in this field. The principles underlying judicial assistance and police cooperation are freedom, security and justice. The aim is to ensure the free movement of European Union citizens and third country nationals resident in the European Union. At the same time, it is important to guarantee security for everyone by combating all forms of organised crime (trafficking in human beings, sexual exploitation of children, drugs trafficking, illegal trading in arms and cars, corruption and fraud) and terrorism.

Legal basis

The Maastricht Treaty on European Union, which came into force in 1993, provided a new legal basis for police and judicial cooperation as well as cooperation in home affairs by completing the Community structure with a third pillar. Cooperation covers seven areas of common interest: asylum, the crossing of external borders, immigration, combating drugs and drug addiction, combating international fraud, judicial cooperation in civil and criminal matters and police and customs cooperation. Since these are often highly sensitive areas, the treaty attaches enormous importance to the sovereignty of Member States and to the EU institutions that directly involve the Member States. The powers of the European Commission, the European Parliament and the Court of Justice are therefore limited.

The Treaty of Amsterdam, which came into force on 1 May 1999, strengthened cooperation in the area of justice and home affairs by transferring a range of powers to the first pillar (Community). These are visas, asylum, immigration and other policies relating to the free movement of persons. In addition, judicial cooperation in civil matters now comes under the first pillar of the Treaty on European Union. Police and judicial cooperation in criminal matters, however, remains a matter for the third pillar.

The Treaty of Amsterdam has also added the prevention of racism and xenophobia to the third pillar.

An area of freedom, security and justice

The 1999 Tampere European Summit was devoted to establishing an area of freedom, security and justice:

area of freedom: i.e. the implementation of the free movement of persons in accordance with the Schengen acquis, protection of human rights and combating all forms of discrimination;
area of security: i.e. the prevention of crime, particularly combating terrorism, trafficking in human beings, crimes against children, drugs trafficking, arms trafficking, corruption and fraud. Europol has been brought to play a central role in this respect in order to strengthen operational cooperation among Member States;
area of justice: despite the differences between Member States, the Union wishes to ensure efficient and equal access to the legal system for all European citizens by enhancing cooperation between the judicial authorities.

Cooperation on asylum and immigration policy

Visa, asylum, immigration and other policies relating to the free movement of persons have been a matter for the first pillar of the Treaty on European Union since the Treaty of Amsterdam came into force. The latter lists several objectives with the aim of (partially) harmonising asylum and immigration policy.

The Tampere European Council (1999) subsequently established four priorities in these two areas:

partnership with the countries of origin of many immigrants;
common asylum procedure;
proper treatment of legal immigrants;
management of influx of immigrants and combating illegal immigration.

The European Council of the 5 November 2004 has agreed to the use of qualified majority voting (QMV) and co-decision in the fields of asylum, illegal immigration and border control.

Before this decision taken by the Council, parliament’s involvement in these matters was ruled by the co-decision procedure. As of 1 April 2005, parliament and the Council will share legislative power in these fields (see above). But legal immigration will remain an exception to this rule, owing to some states’ preference not to delegate sovereignty in this particular field.

This passage from unanimity to QMV is projected for 1 April 2005 at the latest by the treaty establishing a constitution for Europe as well as the Nice treaty currently in force.

Judicial cooperation in civil matters

Judicial cooperation in civil matters focuses on enhanced cooperation between the authorities of the Member States. It aims to simplify and improve procedures for the cross-border notification of documents, cooperation in the obtaining of evidence, and the recognition and execution of decisions in civil and commercial matters. It also seeks to favour the compatibility of regulations in terms of conflicts of laws, procedures and the jurisdiction of courts. Since the Treaty of Amsterdam came into force, cooperation in civil matters has also been encompassed within the Union’s first (Community) pillar.

The Tampere Council set out three specific priorities:

mutual recognition of judicial decisions;
improved regulations for compensating the victims of crime;
greater convergence in the civil law of EU Member States.

Police and judicial cooperation in the European Union

The aim is to ensure a high level of security and protection for all European Union citizens through cooperation between the various EU police forces. The European Police Office (Europol) plays a key role in this regard. Eurojust, meanwhile, was created to ensure cooperation between the different EU public prosecution services. Police and judicial cooperation in criminal matters also comes under the third pillar of the Treaty on European Union. All the Member States have in the meantime introduced legislation to combat the same forms of corruption, fraud, drugs trafficking, trafficking in human beings and smuggling. They now have their own legislation to penalise acts of terrorism.

Description of Justice and Home Affairs (JHA)

The Concise Encyclopedia of the European Union describes justice and home affairs (jha) in the following terms: [1] One of the three ‘pillars’ of the EU formalised by the Maastricht Treaty, JHArefers to member states’ activities in various fields of ‘common interest’, including fraud and organised crime, asylum and immigration, customs, civil and criminal judicial co-operation and the creation of a European Police Office, Europol. The Maastricht Treaty only required member states to inform and consult each other in these areas, with collaboration essentially limited to ‘joint positions’ and (a rare event) unanimously agreed ‘joint actions’. But the Treaty of Amsterdam went further, bringing border control into the acquis communautaire, creating new civil rights and foreshadowing the ultimate harmonisation of national laws and criminal procedures. As a result JHAassumed a hybrid character, with part of its subject matter transferred to the supranational ‘first pillar’ of the EU, of which the ultimate arbiter is the Court of Justice, and part remaining the responsibility of national governments. Confusingly, the Treaty Title covering the ‘third pillar’ was changed at Amsterdam to ‘Police and Judicial Co-operation in Criminal Matters’, although the generic name JHA remains in official use.

These developments have given rise to concern in several countries, especially the UK, with its common law evolved over centuries and its concept of the law as a bastion of protection for the individual – traditions different from the processes and presumptions of the European civil codes descended from Napoleonic law. Although intergovernmental co-operation in JHA has some modest achievements to its credit, such as simplifying extradition and travel and improving the exchange of police intelligence, these could as well have been realised without the Treaties; and the ‘full association’ of the European Commission in judicial affairs prescribed at Maastricht and Amsterdam suggests that civil liberties are on their way to ‘communitisation’ as part of the wider federal agenda.

The approach of the integrationist Commission towards JHA has been pragmatic. Where a specific opportunity presents itself, such as combating Community fraud, centralisation is pushed forward vigorously with the aim of making the remedies enforceable at the EU level; but where the Commissionencounters resistance, it resorts to general principles in the form of Declarations, Resolutions or Treaty Preambles. Particularly sensitive areas have been those of immigration and free movement within the Community. Unhappiness about the Schengen Agreement to abolish European frontiers, caused by alleged Dutch laxity over drug trafficking, led to France reintroducing passport checks in 1995. In 1997, however, the Treaty of Amsterdamsubstantially incorporated Schengen into Community law (the UK, which was opposed to any further weakening of its defences against terrorism or illegalimmigration, obtained an opt-out from that section of the Treaty, as did Irelandand Denmark). The last years of the 20th century and the first year of the 21st saw an explosion of refugees – Kurds from Turkey, Moroccans and Algerians from North Africa, Albanians, Romanians and others from the Balkans and East Europe (see more in this European encyclopedia). Whether this phenomenon strengthened or undermined the fundamental JHA concept of a borderless ‘area of freedom, security and justice’ was, however, hotly debated.

As with the EU’s other intergovernmental ‘pillar’, the Common Foreign and Security Policy, JHA raises the issue of sovereignty. Having conceded the supremacy of Community law, and being for the most part in the course of merging their currencies and surrendering national control over their economies, the chief distinguishing marks of autonomy left to member states are defence, foreign policy and home affairs. To the extent that these areas, too, become the province of the EU, the conventional nation state will progressively have ceased to exist. For this reason, France’s Constitutional Council ruled that the Treaty of Amsterdam required an amendment to the French constitution, and Denmark was true to its own independent traditions in putting the Treaty to a referendum. Early drafts of the next EU treaty due in 2001 contained proposals for a common public prosecutor based in Brussels and a Charter of Fundamental Rights. If these ideas survived the opposition of anti-federalists, and especially if the Charter took the legal form of a European constitution, as many wished, the communitisation of JHA would be close to completion. (See also Corpus Juris and Human rights.)

Justice and Home Affairs and the European Union

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  • JHA

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Notas y References

  1. Based on the book “A Concise Encyclopedia of the European Union from Aachen to Zollverein”, by Rodney Leach (Profile Books; London)

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