SOURCE: EUROPE FROM A TO Z, pp. 164-168

Justice and home affairs

Treaty basis: Articles 7a, 8-8c and 100 of the EC Treaty; Articles K1-K9 of the Treaty on European Union.

Aims: To extend citizenship of the Union, movement across internal frontiers without checks being carried out; increased co-operation between the signatories of the Schengen accords and EU States in matters relating to justice and home affairs, including the setting up of common institutions.

Literature from the European Union:

In 1985, at a village called Schengen, where the borders of Germany, France and Luxembourg meet, these three States, together with Belgium and the Netherlands, signed an agreement to phase out checks on the movement of persons at their common borders. In a further agreement, the Convention applying the Schengen Accords of 14 June 1990, the following security measures were adopted to offset the loss of security suffered as a consequence of the abolition of border controls. Justice and home affairs policy in the EU ‘Schengen’ is seen as a pilot project for the integration of justice and home affairs in the European Union. Until 1992, all co-operation between the security forces of the EC States took place within the framework of informal meetings held by the Trevi group of the Justice and Interior Ministers of the EC States and had no legal basis in any multilateral Treaty. Six-monthly meetings at ministerial level and preparatory working parties were able to increase, above all, the exchange of information, and co-operation in matters regarding terrorism, serious crime, civil aviation safety measures, nuclear safety, conflagrations, natural disasters, police technology and equipment. The Maastricht Treaty on European Union of 7 February 1992 brought about a quantum leap in the integration of justice and home affairs. In the context of the ‘first pillar’ of the EU, Article 7a describes the single market, which is to be progressively established as ‘an area without internal frontiers in which the free movement of goods, services and capital is ensured’.

The second part of the EC Treaty, specifically Article 8 et seq., the notion of citizenship of the Union is introduced, giving every citizen of the Union the right to move and reside freely within the territory of the Member States under Article 8a(1). Article 8b(1) also confers on citizens of the Union the right to vote and stand as candidates at municipal elections in the Member State in which they reside.

Article 100c sets out a common visa policy, whereby the Council of the European Union, acting unanimously on a proposal from the European Commission and after consulting the European Parliament, determines the non-member States whose nationals must be in possession of a visa when crossing the external borders of Member States.

All other matters relating to justice and home affairs in the European Union are dealt with under Article K. Asylum policy, rules governing the crossing of external borders, immigration policy and policy regarding nationals of third countries are all characterised as matters of common interest, as are combating illegal entry, residence and work, combating drug addiction and international fraud, judicial co-operation in civil and criminal matters, customs co-operation and police co-operation for the purposes of preventing and combating serious forms of international crime, including the setting up of a European police office, Europol. In the above areas the Council – in the composition of Interior and Justice Ministers of the Member States – can adopt joint positions. As long as it takes the principle of subsidiarity into account, it can also adopt joint measures and formulate agreements. In principle, the Council’s decisions are arrived at unanimously, the meetings having been prepared by working parties, steering committees and, under the provisions of Article K of the Treaty an European Union, by a Co-ordinating Committee. The Committee’s tasks also include giving opinions for the attention of the Council and, within the framework of the ‘first pillar’, contributing to the preparation of justice and home affairs policy under Article 100c.

The Commission plays a full part in areas within the framework of the ‘third pillar’. The European Parliament must be regularly informed by the Presidency and the Commission about activities carried out and must be consulted on the most important aspects of those activities.

On 8 February 1993, the Council adopted a Regulation on the establishment of a European Monitoring Centre for Drugs and Drug Addiction, which commenced operations in Lisbon in 1994. On the basis of an action plan put forward by the Commission the Council is currently working on a new strategy in the fight against drugs, involving both prevention and penalisation. In 1994, in view of the sharp increase in vehicle theft, the Council in Essen declared itself in favour of examining ways of fitting all new vehicles with immobilisers. They are to be made obligatory on all new models as of 1997 and on all new vehicles as of 1998.

Aliens and visas As a result of the pressure faced by most EU Member States owing to the marked increase in immigration, the Maastricht report on the harmonisation of immigration and asylum policy emphasises the need for basic restrictions: apart from granting the right of abode for humanitarian reasons, immigration is basically to be limited to family reunion. With the exception of those seeking certain specified forms of temporary work, nationals of non-Member States wishing to pursue an occupational activity will generally be refused entry. Self-employed people are only granted entry to pursue a commercial interest if the economy of the State admitting them benefits from their entry, be it through investment, innovation, technology transfer or job creation. A further Council resolution has made it easier for students from non-Member States to gain entry, and schoolchildren from non-Member States who are residing in one Member State can make class trips to other Member States without needing a visa.

Previously simply a working party, Cirefi, the Centre for information, discussion and exchange on the crossing of frontiers and immigration has been transformed into an operative instrument in the fight against illegal entry and the smuggling in of illegal immigrants.

Progress has been made in inserting visa policy in the Community framework. Regulation (EC) No 2317/95 laid down the list of non-member countries whose nationals must be in possession of visas to enter the Union. Regulation (EC) No 1683/95 laid down a uniform format for a forgery-proof visa. On 23 November 1995, the Council reached agreement on a recommendation on consular co-operation regarding visas which contains a common list of non-member countries whose nationals require a transit visa. The conditions governing a visa to be valid in all Member States are to be specified in the external frontiers convention, which is still under negotiation within the Council.

On 23 November 1995, the Council also approved a resolution on the status of third-country nationals residing on a long-term basis in the territory of the Member States.

Refugees and asylum Owing to the large number of asylum-seekers, refugees and emigrants fleeing from civil wars, policy on refugees and asylum have dominated meetings of the Interior Ministers of the EU States in recent years. After several years’ negotiation, on 23 November 1995 the Council agreed on a joint position on the definition of the term ‘refugee’ in Article IA of the Geneva Convention of 28 July 1951 relating to the status of refugees. In a resolution dated 20 June 1996 the Council called for help to be given to refugees locally and in the regions from which they come, especially by the creation of safe zones. The EU States agree on the need to create rules allowing refugees in emergency situations to be taken in quickly and on an equitable basis by the Member States. However, no agreement has yet been reached as to whether the percentage of foreigners already living in the Member States or the unemployment rate within a given State should be among the criteria when deciding how to apportion the burden fairly. The Centre for information, discussion and exchange on asylum (IDEC) has laid down guidelines for joint status reports and a common statistics system.

The fight against racism and xenophobia In the context of European integration, the fight against racism and xenophobia has a particular significance, given the large number of xenophobically motivated acts of violence, some of which are anti-Semitic in nature, and other offences in recent years. According to a survey carried out by the Council working party on terrorism, 25 xenophobically or racially motivated homicide offences (of which 15 were attempts), 100 attacks and 468 cases of unlawful wounding were reported in EU Member States in 1995.

In Cannes in June 1995, a Consultative Commission on Racism and Xenophobia set up by the European Council presented its findings. These included a total of 107 recommendations and suggestions in the fields of education, information and the media, police and justice. The European Council called on the Council to examine the legal and financial aspects of setting up a European Monitoring Centre on Racism and Xenophobia and to see what relations the Monitoring Centre would have to establish with the Council of Europe.

The Council and the Member States have decided to make 1997 the European Year against Racism, to bring home to the public the threat that racism, xenophobia and anti-Semitism pose for the respect of fundamental rights and unity in the Community. At the same time action to combat this threat should be considered in the form of exchanges of experience and information should be given about the advantages of integration measures in individual Member States. The projects for the European Year against Racism include conferences and seminars, information campaigns, and sporting and cultural events. A logo, slogan and posters will make it clear that all the projects are an individual country’s contribution to a joint Union measure. The European Commission’s strategy is to design the European year in such a way that it becomes firmly established in people’s minds and has an impact well into the future by achieving tangible results that are widely publicised and so help to bring about more effective strategies for combating racism. Alongside the Community-level measures, which will be supported by an ad hoc group of Member States representatives, national projects are to be mounted by central and local authorities and NGOs in national co-ordination committees.

Justice Prior to the Maastricht Treaty, attempts had already been made to increase co-operation between Union States on matters of justice. The Convention applying the Schengen Accords is one shining example. The Treaty on European Union regards judicial co-operation in criminal matters as a question of common interest. Since then discussions have led to progress on the simplification of the extradition procedure (extradition is facilitated as long as the person being sought agrees) and on combating fraud against the European Union. In 1993, an agreement was signed on the protection of the financial interests of the Union.

All in all, integration in matters of justice and home affairs is a slow process. There are fundamental differences as to how to interpret ‘intergovernmental co-operation’. Some Member States do not recognise any obligation under Article K.1 et seq. to put any flesh on the bones of a common security policy, preferring instead to view it as an opportunity to make use of the organisational assistance of the Union to solve problems of justice and home affairs. The instrument set up under Article K.8(2), whereby the Council may decide unanimously that operational expenditure is to be charged to the budget of the European Communities, is generally rejected by some Member States.

Progress can be expected if, at the Intergovernmental Conference, justice and home affairs are incorporated more fully into the Community from a procedural point of view and the supranational competence of the EU is extended in this area.

Click here to see a current overview of signatories to the agreement. 

Reinhard Rupprecht