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The ultimate surrender of the justice and home affairs policies to Brussels

The Hague Programme expires in 2010 therefore the EU is preparing a road map for its home affairs and justice policies. On 10 June 2009, the Commission adopted a Communication entitled “An area of freedom, security and justice serving the citizen” which is its contribution to the discussions on the new EU programme for the next five years, the so called Stockholm programme.

The Stockholm programme will be examined by the European Parliament in November and the Commission is hoping that the European Council will be able to adopt it in December 2009.

It is important to recall that justice and home affairs were brought into the European Union framework by the Maastricht Treaty and since then the EU integration process has not stopped and there has been an increase in the powers of the European Parliament and of the Court of Justice in this area. Nevertheless, the Commission has pointed out that progress in criminal law has been slow because unanimity is required in the Council, and the sphere of jurisdiction of the Court of Justice is limited.

The Stockholm programme will cover issues such as border controls, police and customs cooperation, criminal and civil law cooperation, counter-terrorism, asylum and immigration, visas. The Lisbon Treaty provides for further integration on these issues. It will have several implications for police and judicial cooperation in criminal matters as co-decision, qualified majority voting and the ECJ’s jurisdiction will be extended to those areas. The Lisbon Treaty facilitates the Union to develop its own action and policies concerning security and justice. The Lisbon treaty and the Stockholm Programme would be, therefore, the ultimate surrender of the justice and home affairs policy to Brussels.

According to Jose Manuel Barroso "There are objective facts that justify the European approach" consequently he believes that "This is not a question of power-grabbing for the European commission (...) We are not trying to have more powers at the European level for the sake of having more power.”

The Justice and Home Affairs Ministers of the EU Member States discussed, for the first time, the ‘Stockholm Programme, at an informal meeting which took place on 16-17 July. This meeting has shown that an agreement is still far from being reached. According to the Home Secretary, Alan Johnson, the Government has raised some concerns it broadly supports the Commission’s Communication proposals.

In order to enhance the EU system for the protection of fundamental rights, the Commission calls for the EU to accede to the European Convention on Human Rights. It should be recall that the Lisbon Treaty provides a legal base for the Union to accede to the ECHR which would be another example of the EU acting as a State.

As regards participation in the democratic life of the Union, the Commission paper stresses that “careful thought should be given to measures to encourage citizens” to vote in the European elections of 2014. According to the Commission “It will be helpful if (…) the elections can be held in the week of 9 May.” Alan Johnson has said to the European Scrutiny Committee that the Government does not support this proposal as “it wants to retain the flexibility to set the date to reflect national electoral traditions and practical considerations.”

Whilst stressing that “The principle of mutual recognition is the cornerstone of European integration in the field of justice” the Commission called for a general abolition of the exequatur procedure so that judgments in civil matters can be directly enforced without any intermediate measure. According to the Commission mutual recognition should be extended to areas that are not yet covered such as succession and wills, matrimonial property rights.

Moreover, as regards mutual recognition of criminal sentences the Commission stressed that mutual recognition should be extended to victim and witness protection measures and to disqualification decisions such as prohibitions from carrying out certain professions, withdrawal of driving licences.

Furthermore, in order to ensure compliance with EU policies in general and, more specifically, improving road safety the Commission believes that it should be possible to implement certain fines, which can be criminal or administrative, between Member States. The Commission also calls for further harmonization in criminal law. It pointed out that the implementation of some EU policies may require the definition of common penalties and common offences in order to ensure their effectiveness, in accordance with the case-law of the Court of Justice. The UK Government does not support such proposal.

Moreover, according to the Commission “The Union may also decide, where necessary, to turn to criminal law to punish abuses in the financial sector.”

The Commission also wants to abolish all formalities for the legalisation of authentic documents between Member States and believes that it should be created authentic European documents. It is important to mention that last December the European Parliament adopted a report containing recommendations to the Commission on the European Authentic Act. The MEPs have called for the abolition of procedures for checking the accuracy of authentic acts in cross-border matters. However, the European Parliament has not taken into account the English Common Law, it has ignored the English deeds as well as England’s different forms of notarial professions.

The Commission calls for the development of an internal security strategy based on solidarity between the Member States. According to the Commission such strategy “should be aimed at strengthening cooperation in police matters and law enforcement and making entry to Europe more secure.” The Commission has pointed out that “This will require policies to ensure a high level of network and information security throughout the European Union.” Hence, according to the Commission, the EU must create “a proper information system architecture to ensure that the technical solutions adopted at national level are interoperable with existing or future European systems.” It is important to mention that High Level Advisory Group on the Future of European Home Affairs Policy, the so called Future Group, has suggested several measures which imply further control of Member States national security policies by the EU. According to the Group there should be an intensified used of surveillance materials such as “video surveillance, Internet telephony, and police use of unpiloted aircraft” to meet police cooperation and border management objectives as well as to combat terrorism. Hence, the Future Group believes that the development and sharing of surveillance materials should be left to the EU.

The Future Group as well as the Commission has recommended a greater use of means available under the Framework Programme for Research and Technological Development (security research programme). This Programme will last from 2007 until 2013 and has a total budget of over €50 billion. Moreover, the Commission believes that an Internal Security Fund should be set up.

According to the Commission, the EU must introduce a complete European framework for obtaining evidence in cross-border cases which should include a real European evidence warrant to replace all the existing legal instruments and a European legal framework on electronic evidence.

The Commission calls in general for more cooperation on police matters and more exchange of information between the Member States, Eurojust and Europol. The Future Group not only suggested an increase of exchange of information between national police forces but also between intelligence services.

The Stockholm programme would also provide for tighter border controls and increased use of new technologies (biometrics). According to the Commission “A consistent system of border checks covering all types of check (a one-stop shop) must be set up.” The EU has been assisting to an increased role of information systems in police cooperation: the Schengen Information System (SIS), the Visa Information System (VIS). The Commission pointed out that the development of SIS II and VIS will be finalised and that an electronic system for recording entry to and exit from Member States' territory will be established alongside registered traveller programmes. The Commission is already exploring the possibilities to create a single legal framework for the Justice and Home Affairs databases as well as their management and supervision. In fact, on 24 June, the European Commission adopted a legislative package proposing creating an Agency for the operational management of SIS II, VIS, EURODAC and other large-scale IT systems in the area of freedom, security and justice.

It is also suggested the creation of a “common European Schengen visa.” According to the Commission visas could be issued by a common consular authority.

The Commission has said that the “Union must secure a new comprehensive strategy to protect citizens' data within the EU and in its relations with other countries.” Therefore, it believes that a comprehensive protection of personal data and privacy scheme should be introduced. Nevertheless, the Commission calls for further legislative initiatives to regulate “the circumstances in which public authorities might need to restrict the application of these rules in the exercise of their lawful duties.” One could notice that the programme is all about gathering and exchanging citizen’s data. According to European Civil Liberties Network (ECLN) the Stockholm programme policies “constitute an attack on civil liberties and human rights.”

Obviously, the formulation of a common immigration and asylum policy will be a top priority in the next five years. The Commission calls for an EU common framework for a flexible admission system for migrants consistent with the needs of national labour markets. According to the Commission “The policy should offer legal immigrants a clear and uniform status.” and uniform level of rights comparable with that of Community citizens. Moreover, the Commission pointed out that “The EU should adopt common rules to manage effectively the influx of migrants entering for family reunification.

Whilst stressing the EU progress towards creating a common European asylum regime the Commission is looking for the quick adoption of the legislative proposals of the second phase of harmonisation so that a single asylum procedure and a uniform international protection status can be established no later than 2012. The Commission is already considering expanding the tasks of the recently proposed European Asylum Support Office “to take account of progress in solidarity and the sharing of responsibilities.”

According to the Commission the EU should formally enshrine the principle of mutual recognition of all decisions granting protection status taken by authorities ruling on asylum applications, by the end of 2014. This means that protection can be transferred without the adoption of specific mechanisms at European level. According to Alan Johnson “refugees should seek and obtain asylum in the first EU country that they reach, rather than being free to move on to another Member States after having their claims accepted by one.”

The Commission has stated that the EU should “provide for a true sharing of the responsibility for hosting and integrating refugees, including the setting-up of a voluntary mechanism for redistribution between Member States and common processing of asylum applications.” The Commission calls therefore for “a more permanent solidarity system” from 2013 which would be coordinated by the Asylum Support Office. Moreover, the Commission said that “An asylum policy based on solidarity with non-member countries faced with major inflows of refugees should be pursued.”


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I think that the EU has done well at helping refugees.

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Bill Cash has been the Conservative Member of Parliament for Stone since 1997 and an MP since 1984.

He is currently the Chair of the European Scrutiny Committee and the founder member of the European Foundation...

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