eunbil · GT0N1598 · 2006-07-14 00:00:00 — Decisions on and judicial co-operation in criminal matters, in particular, still need unanimous agreement by all Member States. These matters are dealt with under a particular framework (Title VI TEU), which applies the so-called "third pillar" method, characterised by: specific legislative instruments (Common Positions, Framework Decisions, Decisions and Conventions) that complicate further its implementation; insufficient powers for Parliament in the legislative process; use of unanimity that often leads to agreements on the lowest common denominator basis; a shared right of initiative with each of the 25 Member States that does not favour a true "European dimension", nor the accountability of the Member States" legislative initiatives, which are not submitted to ex-ante impact assessment, and a limited role of the Court of (exclusion of infringement procedures and preliminary rulings subject to national opt-in - consented so far by 14 out 25 Member States- and possibility to limit to the highest national jurisdictions). the lack of formal infringement procedures to ensure proper transposition and implementation. In fact, discussions in the Council have recently showed it is proving very difficult to move forward in the EU in areas such as mutual recognition in criminal matters and cooperation. Last the and Home Affairs Council could eventually reach an agreement on the Commission proposal for a European evidence warrant only after extremely lengthy negotiations and on the basis of the lowest common denominator, which is not satisfactory not only for the Commission but also for most Member States and has a negative impact on the application of the principle of mutual recognition, which under the and The Hague Programmes represent the cornerstone of the Union"s policies in the area of judicial cooperation. No progress has been made either in the last three years on basic minimum standards for procedural rights applicable throughout the EU, such as the right for an interpreter when arrested. Discussions on a text providing for defining and condemning in the same way throughout Europe offences of racism and xenophobia are equally totally blocked and frozen for almost two years, even though there are recent signs that they could now restart. Finally, discussions have not progressed on a Commission proposal intended to authorise further cross-border investigation and prosecution. Some such recurrent difficulties are also visible for the "communitaurised" Freedom, Security and policies (Title IV TEC), where specificities remain regarding the competence of the Court of for preliminary rulings (Article 68 TEC) and where legal migration and family law are still decided upon by unanimity. On legal migration, for example, discussions on the 2001 Commission proposal for a Directive on entry and stay of third country nationals for employment purposes were unsuccessful under the unanimity rule. The Commission has recently revived this issue through a and a resulting Action Plan presented in , but is difficult today to predict where this debate will end still applying the unanimity rule in this area. Regarding the competence of Court of , the risk exists that matters of high importance and sensitivity such as access to or asylum rights do not benefit from the same jurisdictional control or uniform application throughout Europe. Resolving current difficulties: the bridging The Commission believes that the timing of the first review of implementation of The Hague Programme is an opportune moment to reactivate and stimulate consideration on how to better shape the decision-making in the EU and ensure better evaluation and implementation of Freedom, Security and legislation. This needs to be done by making the best use of the possibilities offered by the current Treaties. The Commission considers that fully implementing the current Treaties would allow for further efficiency and coherence in areas where the added value of action at EU level is widely recognised and expressly requested by our citizens that, as recently confirmed by the results of the last Euro barometer, ask for more protection and security. Moreover, as stated in its Communication of 10 2006, it is the Commission"s view that the maximum use of the current Treaties will set in place the conditions necessary for reaching the ambitious goals contained in The Hague Programme and allow its full implementation. The current Treaties provide for the possibility to overcome the difficulties mentioned in Chapter 3.1 by the use of the so-called "bridging " contained in Articles 42 TEU and 67(2), second indent, TEC. Article 42 TEU provides for the right of initiative of the Commission (or of a Member State) to propose that action in areas referred to under Article 29 TEU (fight against terrorism and crime through actions in the field of law enforcement and criminal matters) falls under title IV TEC and is subject to the same institutional framework as other "communitaurised" Freedom, Security and policies. The decision on the use of Article 42 TEU is subject to unanimity within the Council, after consulting Parliament, and adoption in accordance with Member States" constitutional requirements. Article 67(2), second indent, TEC allows the Council, acting unanimously after consultation of Parliament, to decide that legal migration becomes governed by co-decision procedure, ensuring therefore a proper democratic scrutiny by Parliament. Article 67(2), second indent, TEC requires the Council, acting unanimously after consultation of Parliament, to adapt the provisions of Article 68 EC relating to the powers of the Court of ; this should be done by deciding that preliminary ruling competence of the Court of under "communitaurised" Freedom, Security and policies be align to the one provided for under other EC policies, ensuring an enhanced role of the Court of . The Commission believes that the bridging represent an appropriate tool at disposal of the Union and the Member States to reach the ambitious goal of better shaping the decision-making in the area of Freedom, Security and . The real added value of the application of the bridging would be to apply the "Community" method to the policies in this area, which has proven to ensure more efficiency, more transparency and more accountability. The best example of the benefits of the "Community" method is the recent adoption by Parliament and proposal for a Directive on retention of communication data, agreed upon only three months after the Commission proposal. By applying the "Community" method, the following advantages would be obtained: increasing the efficiency, the transparency and the accountability of the legislative procedures; generalising the Community legislative instruments (Regulations, Directives, Decisions under the current Treaties); acknowledging the legislative co-decision power to the democratically elected representatives of EU citizens through Parliament; guaranteeing a "European dimension" of the legislative proposals through the right of initiative of the Commission and the use of effective impact assessment tools; favouring both consensus and high standard achievements through the qualified majority vote; ensuring a proper judicial dialogue with national jurisdiction through the preliminary ruling mechanism and monitoring of implementation by the Member States through the infringement procedure. Moreover, use of the bridging for and judicial cooperation matters would certainly be critical in addressing the question of the delimitation between first and third pillars, which is far from being hypothetic as recent rulings of the Court of (in the environmental crime and the cases) clearly show. Dealing with these matters under a single legal framework would certainly lead to more legal certainty and efficiency. Article 42 TEU, in particular, allows for certain flexibility notably in terms of definition of the relevant voting conditions to be applied to the areas transferred from Title VI TEU to Title IV TEC. The Commission believes that reflection and discussion should be launched with Member States and with the EU Institutions to make the best use of the different options offered by Article 42. European citizens urge the EU to put in place the necessary measures to make a safe place to live in. The Union must be able to respond rapidly, guaranteeing at same time that European citizens may exercise their individual freedoms. The Union and the Member States must respond together to this challenge because terrorism and organised crime do not respect borders or procedures. Implementing and developing further The Hague Programme is a common goal, which imposes effective decision-making and clear political priorities. Identifying the next steps to move forward integration in Freedom, Security and and streamlining decision-making procedures should be pursued in parallel. The Commission believes it is represents the only sustainable way forward for progress in this policy area. The Commission intends, on the basis of its assessment of the state of implementation of The Hague Programme, to launch a discussion in partnership with the other EU Institutions and the Member States on how to bring forward the policy agenda in a way to address the expectations of EU citizens and improve the functioning of the area of Freedom, Security and On the basis of the outcome of reflection and discussion during the incoming Finnish Council Presidency about the benefits of using the current Treaties, the Commission is ready to take initiatives under Article 42 TEU and Article 67(2), second indent, TEC . COM(2006) 211. Communication from the Commission to the Council and Parliament: "The Hague Programme: Ten priorities for the next five years. The Partnership for European renewal in the field of Freedom, Security and " - COM(2005) 184. Paragraph 10 of 2006 European Council conclusions: "In the context of the review of the Hague Programme, Council calls upon the incoming Finnish Presidency to explore, in close collaboration with the Commission, the possibilities of improving decision-making and action in the area of Freedom, Security and on the basis of existing treaties". COM(2003) 606. Presidency report on "Reinforcing the Union"s emergency and crisis response capacities", endorsed by the 2006 . COM(2006) 67. The principle of availability, as laid out in the Hague Programme, states that information for law enforcement purposes needed by the authorities of one will be made available by the authorities of another , subject to certain conditions. "Strategy for the external dimension of JHA: Global freedom, security and ", drawing on the Commission"s Communication COM(2005) 491, 12.10.2005. As detailed in the Communication on " Strengthening Freedom, Security and in Union: report on the implementation of The Hague Programme for the year 2005", presented in parallel to the present Communication. Given that, despite the expiration of the transitory period on 1 2004, the Council has not yet taken up work to fulfil its obligation to adapt the provisions of Article 68 EC, the Commission addresses to Parliament and the Council, in parallel to the present communication, a specific Communication on that subject. Without prejudice to the specific initiative taken in the Commissions communication referred to in footnote 6 above. 11222/06 XX/ved DG H II EN