The European Area of Freedom Security and Justice : still… lost in transition ?

by Emilio De Capitani, Free Group

More than five years ago the Lisbon Treaty entered into force carrying along great expectations for the transformation of the EU into a Freedom Security and Justice area. However even if some progress has been made on Schengen,  asylum policies, procedural guarantees in criminal proceedings and judicial cooperation in civil matters the results are far lower than the initial expectations and of the ambitious objectives enshrined in the Stockholm Programme adopted by the European Council on December 10th 2009.

That Programme has been criticized by some member states as it was a sort of “Christmas tree”. However what the European Council adopted in June  last year is little more than a “dry bush” mainly focused on the need for …thorough reflections before adopting new EU legislation. Some commentators considered that this was a Machiavellian move of the European Council to pass the baton to the newly appointed President of the European Commission so that it could take the lead of this European policy as for any other “ordinary” policy.

A deceiving Commission..

In the following months this interpretation was confirmed by the appointment of the first Commission Vice President, in charge of the implementation of the rule of law, of the European Charter of fundamental rights and of better legislation. Moreover the creation of a specific portfolio for migration policy gave the impression of the Commission’s stronger political commitment “ place the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice” (European Charter Preamble)

However very soon these initial hopes had been deceived :

1. The rule of law mechanism which was suggested by the last “Barroso” Commission was soon forgotten

2. As far as the Charter is concerned the Commission has apparently been taken by surprise by the Court of Justice opinion 2/13 dealing with the EU accession to the ECHR and is still considering what to do. But the Juncker Commission also seems lost when the issue at stake is to transpose the EU Charter principles into new EU legislation. It will only take more than one year to evaluate what could be the impact of the CJEU ruling on data retention on the pending legislation such as the EU PNR, the entry-exit and the registered travel proposals (not to speak of its impact on EU legislation and agreements that are already in force..)

3. Migration and human mobility are still dealt with and financed by the same General Directorate which is in charge of internal security policy instead of being moved to social affairs policies which should have been a real holistic and individual-centred approach.

4. Last but not least the Commission’s legislative programme for 2015 is more than reticent and it appears more and more evident that for the time being most (if not all) of the Commission’s political energy will be focused on economic objectives so that the Freedom security and justice area related policies have to wait for a new season.

… but the situation between Member States is even worse…

The situation of FSJA policies is even more frustrating on the Member States side.

Not only some legislative procedures like the ones on consular protection, access to documents  or the fight against discrimination remain blocked and others including the data protection reform will require a caesarean section to come to life,  but day after day it appears clearer and clearer  that there is still a majority of member states which do not want  the modernisation of measures adopted before the Lisbon treaty (or even before the entry into force of the Amsterdam Treaty. This is notably the case of Germany which (as a rule)  oppose any new measure which can have a financial impact or will change the former “unbalance” of power between the Council and the European Parliament. Take the case of the recent three Commission proposals (1) repealing FSJA measures dating back to the intergovernamental period. According to German delegation even a 1998 Schengen decision on the adoption of measures to fight illegal immigration should be preserved because “None of the (current) legal instruments include a similarly comprehensive approach to fight illegal migration and immigrant smuggling.” This is appalling : would it not be wiser to urge the Commission to submit a new proposal which could better comply with the EU Treaties and with the Charter by also associating the European Parliament to this endeavour ?

This case apart it is worth noting that all the pre-Lisbon measures dealing with police cooperation and judicial cooperation in criminal matters (2) have been legally “embalmed” by art 9 of Prot.36 according to which “The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union.”

Needless to say this art 9 has therefore created a “legal limbo” where the measures adopted on the legal basis that is no longer in force will “survive” until new legislation will be adopted or the Court of Justice will discover that some of them no longer comply with the post-Lisbon and post EU Charter legal framework (as it has been the case for the pre-Lisbon Data retention directive..)

However with these measures still in force,the Commission’s duty should have been to verify their implementation at the national level even before the end of the transitional period (which according to art. 10 of the same protocol was aimed to shield the Member States for five years from infringement procedures and give the opportunity to the UK to opt-out – re-opt-in to all or some of these measures).

Apparently the Commission did’nt consider that it was it’s duty to make such an assessment in a systematic way and has verified the implementation of only some exceptional cases (such as  the European Arrest Warrant).

Now the moment of truth has come as at the end of the transitional period the Council internal system to monitor the implementation of the former third pillar measures has been discontinued. Regrettably  the Commission’s internal monitoring system  (the so-called MNE “Measures Nationales d’Execution”) was not ready to take the “relais”. Taken apparently by surprise the Brussels Executive then reacted frantically by sending  two letters in December 2014 (one from DG JUST and one from DH HOME) imposing the Member States to notify their national transposition measures in the Commission’s system before… 15 March 2015 (!). (See Council note here )Time will tell if the deadline will be respected  but during this exercise it appeared that the situation is not better for EU Directives adopted after the Lisbon Treaty.

European Citizens should still wait to know how the European Protection order can be implemented at the national level…

In a recent note from the Austrian delegation, mention has been made to two Directives adopted in the last years (Directive 2014/41/EU on the European Investigation Order and Directive 2011/99/EU on the European protection order) one of which should have been transposed by the  beginning of January of this year. However apparently no information was available on the  Directive 2011/99/EU on the European protection order on the Commission’s MNE site.

This means, for example, that although in Austria the relevant legislation has entered into force on 1 January, it has not been possible for Vienna to properly apply the Directive (even in relation to the seven other Member States which are said to have already implemented the Directive). In its note, the Austrian delegation points out very rightly that the“…proper application of any instrument providing for co-operation between national authorities of Member States (including mutual recognition and execution) presupposes up-to date information of the authorities about : -Which Member States have implemented and thus apply the relevant instrument; and – All specific information provided by Member States, like on competent authorities and accepted languages, and any declarations by Member States.”

More importantly Austria has required that this information should be also mirrored on the European Judicial Network (EJN) site which paradoxically is more rich and easily accessible than the Commission quasi secret MNE application… According to Vienna :”The aim should be that information is available at least in the same transparent and comprehensive manner as is the case, since many years, with the Council of Europe Conventions on the Council of Europe homepage. At the moment, certain aspects seem unclear: Who gathers and disseminates information on the implementation of Framework Decisions where there is neither an obligation to send specific information to the General Council  ecretariat, nor a possibility to make declarations?  Who gathers and disseminates information on the implementation of Directives concerning cooperation in criminal matters, such as Directive 2011/99/EU (European protection order)? It is suggested that the Commission should carry out both tasks, since the Commission receives the information concerned from the Member States and since the Commission is competent for monitoring Directives and Framework Decisions. In fact, under Article 17 of the Treaty on European Union, the Commission shall oversee the application of Union law under the control of the Court. Moreover, since 1 December 2014, the power of the Commission under Article 258 of the Treaty on the Functioning of the European Union also fully applies to Framework Decisions, as a result of which it would also be logical that the Commission solely carries out the accompanying monitoring function. “

Better late than never; but try to explain all this to the European Citizens who were deemed to take advantage of the EU Protection order  since January 11 2015..

(1) Proposals for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL repealing certain acts in the Area of Freedom Security and Justice (COM(2014) 713, 714 and 715).

(2) The EU Official Journal has published  the measures which will cease to apply to the UK  and the measures which will remain applicable to the UK.