the impact of the amsterdam treaty on justice and home affairs issues

264 Pages·2006·1.56 MB·English

Directorate-General for Research

WORKING PAPER

THE IMPACT OF THE AMSTERDAM TREATY
ON JUSTICE AND HOME AFFAIRS ISSUES

Civil Liberties Series

LIBE 110 EN
This publication is available in English.

At the end of this working paper you will find a full list of the other 'Civil Liberties Series'
publications.

The opinions expressed in this document are the sole responsibility of the author and do not
necessarily represent the official position of the European Parliament.

Reproduction and translation for non-commercial purposes are authorized, provided the source is
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PUBLISHER: The European Parliament
B-1047 Brussels

EDITOR: Andrea Subhan
Directorate General for Research
Division for Social, Legal and Cultural Affairs
Tel. [phone]
Fax: [phone]
E-Mail: [email protected]

AUTHOR: Tony Bunyan, editor Statewatch bulletin (project coordinator);
Heiner Busch, CILIP, Berlin, Germany;
Elspeth Guild, lawyer, University of Nijmegen, the Netherlands;
Steve Peers, Reader in Law, Human Rights Centre,
University of Essex, UK.

Manuscript completed in March 2000
Directorate-General for Research

WORKING PAPER

THE IMPACT OF THE AMSTERDAM TREATY
ON JUSTICE AND HOME AFFAIRS ISSUES

Civil Liberties Series

LIBE 110 EN

3-2000

Justice and home affairs

EXECUTIVE SUMMARY

This report deals with the changes to the Maastricht Treaty brought about by the Amsterdam
Treaty on justice and home affairs issues and the new provisions in the TEU and TEC.

Perspectives

There are a number of different perspectives which can be taken when looking at developments in
the European Union, especially where the subject under review is justice and home affairs.

National governments have their view, the Council (comprised of member states's governments)
has its view representing a common or compromise position, the Commission too will have a
view.

This report has been prepared by a group drawn from voluntary groups and universities in civil
society. The views presented, while recognising those of EU institutions and national
governments, is written from the perspective of civil society paying particular attention to those
who are effected by EU-wide policies and practices - the citizen, refugees and asylum-seekers.

Openness - access to documents

Any appraisal of justice and home affairs policies and practices in the European Union raises the
issue of the citizens' and civil society's access to documents. Without access to primary sources
they are unable to participate in normal democratic decision-making or to seek to check excesses
or unaccountable practices on the part of agencies and officials.

Effective access to documents from the main EU institutions - the Council, Commission and
European Parliament - is thus a prerequisite of a democratic society.

Citizens and parliaments

While the European Parliament is one of the main EU institutions its role is quite different from
those of the Council and Commission. The Council and Commission exercise executive powers of
government and their departments and officials - whether at the EU or national level - are
responsible for the administration and practices which flow from decision-making.

The European Parliament is directly elected by EU citizens and is accountable to them. It
therefore has the unique role of scrutinising new policies and the consequent practices and, above
all, of representing and protecting the interests of the all the people in the EU.

Nowhere is the European Parliament's role more important than in the field of justice and home
affairs which so critically effects civil liberties.

PE 228.145 iii
Justice and home affairs

PE 228.145 iv
Justice and home affairs

TABLE OF CONTENTS

Page

Foreword by Graham Watson …………………………………………………………. 3

1. Internal border controls ………………………………………………………….. 5

2. Control of the crossing of external borders ………………………………………. 12

3. Asylum Policy …………………………………………………………………… 23

4. Immigration policy regarding national of third countries ………………………… 37

5. EU Drugs policy …………………………………………………………………. 55

6. Judicial cooperation in civil matters ……………………………………………… 64

7. Judicial cooperation in criminal matters ………………………………………….. 67

8. Fraud ……………………………………………………………………………… 78

9. European Customs Cooperation …………………………………………………… 80

10. Europol …………………………………………………………………………… 90

11. The EU-FBI telecommunications surveillance plan ………………………………. 105

12. Openness and justice and home affairs …………………………………………… 111

13. The Council's justice and home affairs decision-making structure ……………….. 114

14. The role of the European Parliament ……………………………………………... 116

ANNEXES
The annexes will be published in a separate volume.

A. Title VI of the Maastricht Treaty
B. Title VI of the TEU (Amsterdam), Title IV of the TEC (Amsterdam) and the Schengen
Protocol
C. Justice and home affairs acquis (November 1993-December 1999)
D. Comparison of the Vienna Action Plan (Area of freedom, security and justice) and the
Tampere Conclusions
Table 1
Table 2
PE 228.145 1

PE 228.145 2
FOREWORD

Until 1991, issues covered in the Justice and Home Affairs Committee (JHA), that is immigration
and asylum, border controls and police and judicial co-operation, were strictly a matter for national
government. Within the Maastricht Treaty there was an attempt to formulate an EU policy, but
because of the sensitive and highly politicised nature of these issues, a compromise between
Member States was only reached by creating a third pillar, separate from the first pillar of normal
EU business and the second pillar of foreign policy. Decisions made in the third pillar have to be
agreed by all Member States through the Council of Ministers. There is no involvement of
Commission or Parliament hence no effective democratic oversight. Obviously, an arrangement
such as that did not lead to rapid and flexible action. Yet on vital issues such as police co-
operation and the reception and handling of asylum seekers, speed and efficiency are essential.
Therefore in the International Governmental Conference of 1996-7 one of the burning issues was
reform of JHA co-operation.

Due to disagreements between national governments about where power over freedom of
movement, border controls and law enforcement should lie, the Amsterdam Treaty contained a
another compromise. Half of the JHA competencies were shifted into the first pillar. This means
that Parliament now has power over decisions made on freedom of movement issues and judicial
co-operation in civil matters. In turn, these changes mean that civil society has more influence
because parliamentarians can be lobbied by interest groups. A small step has been taken on the
road to greater transparency of European decision making.

I was elected Chairman of the JHA Committee in July, when these changes had just come about.
The impact of the Amsterdam Treaty has gradually become clearer in the last six months, but a
comprehensive study will be very useful for those of us working in the area, as well for as students,
NGOs and interested citizens keen to know their rights. Independent scrutiny is crucial for
democracy. Citizens need to know about EU agreements which will affect their lives. All too often
in the media discussion of European law happens two years after it has been passed. The bigger
picture is rarely looked at, indeed analytical information is hard to come by. That is why I
wholeheartedly welcome this report as a way of clarifying the complicated implications of the
Amsterdam Treaty. It combines much needed explanations of the developments in the justice and
home affairs with attention to the practical problems and suggestions for action.

February 2000

Graham Watson
President of the Committee on Citizens' Freedoms
and Rights, Justice and Home Affairs

PE 228.145 3