eunbil · GT0N1594 · 2006-07-14 00:00:00 — In the case of the Community instruments, on the other hand, infringement proceedings are a clear deterrent to Member States in default, facing the risk of negative publicity and possibly even of periodic penalty payments, as can be seen from the monitoring of the quality of transposal in the table in 2. Monitoring policy by policy As regards fundamental rights, only Directive 95/46/EC on personal data protection is concerned for the moment. The Directive has met its objective of ensuring a high level of protection of the citizens right to privacy and removing the barriers to the free movement of personal data in the Union. All the Member States complied with their transposal obligation, considered generally satisfactory in the first implementation report even though some cases of incorrect application were detected. Moreover, the Commissions evaluation of the 2000-2004 action plan in 2004 on the basis of data provided by () and Europol comes to mixed results as regards the national application of strategy and action plan on drugs. Experience from Commission reports and infringement proceedings prompts a satisfactory assessment regarding the application of Part II of the . All the Member States generally complied with their duty to notify national measures transposing secondary legislation by the cut-off date of 31 2006. The implementation of the Directives on the right of of pensioners, inactive people and students is generally satisfactory. The same applies for the current Directives on the right to move and reside freely on the territory of a , though there are a few cases of incorrect application. Directives on voting rights at municipal and European Parliament elections have been transposed satisfactorily, even if the public make insufficient use of their rights. Asylum, immigration, borders Apart from the Commission reports that show very satisfactory results on the activities of EURODAC, the first phase of the asylum system is in the process of evaluation. As can be seen from the table in 2, it can be concluded from certain persistent gaps in the notification of transposal measures that the rate of implementation is not yet ideal. European policy on legal immigration is still in its infancy, and there are as yet no reports allowing a general evaluation. But it can be seen that application is incomplete from the significant number of Member States which have not notified measures transposing the Directives on family reunification and the status of long-term resident third-country nationals, where infringement proceedings are in motion. As regards illegal immigration, in spite of the absence of implementation reports, the other indicators available reveal a relatively satisfactory transposition level of the least recent instruments, except in one in particular. Apart from the Framework Decisions, the implementation of the instruments for the fight against organised crime and for and customs cooperation, and in particular the conventions and protocols adopted on the basis of Title VI of the , are difficult to evaluate because of the very nature of the instruments concerned, which make no provision either for a formal duty for the Member States to notify or for reports monitoring national implementation. Their speedy ratification remains the first priority. Arrest Warrant, instrument of mutual recognition par excellence, despite initial transposal delays in about half the Member States, is now operational throughout the Union, subject to some efforts to be made by certain Member States to comply fully with the text, and despite constitutional difficulties in several Member States. Concerning the harmonisation instruments, many of which are relevant to the fight against terrorism, the overall evaluation of implementation is particularly disappointing, even though the Commissions practice of presenting successive implementation reports reveals a positive trend. Instruments are very often incompletely transposed, and sometimes with considerable delay, depending on the Member States. None of these failures is likely to give rise to infringement proceedings as the Treaties stand. The evaluation appears difficult at this stage for the two instruments concerned , since the time allowed for transposal of all the provisions had not expired at the cut-off date of 31 for one of them and had only just expired for the other. It is clear from the only report currently available to date on the application of the Regulation on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters that there is room for improvement. On 15 2005 the Commission accordingly adopted a proposal to amend this Regulation, now under examination in the Council and Parliament. Monitoring by Member State The following overall data, all instruments combined, can be derived from the two indicators appearing in the table at 2. The first two tables reflect Member States failures to notify transposal measures and cases of incorrect transposal or application respectively. The third table gives aggregate figures for the two categories. At the end of this first Hague programme monitoring exercise, it is noteworthy how sharply the generally positive assessment of the adoption timetable for 2005 contrasts with the much more mixed results of the monitoring of the national implementation of the instruments adopted. It emerges from the monitoring of the adoption of the measures scheduled for 2005 in the Hague programme that the institutional mechanism functions satisfactorily in JFS matters involving the . The progress achieved in judicial cooperation in civil matters and citizenship testifies to this. But the fact remains that, even here, when unanimous voting was provided for, it was a brake on the adoption process, which probably contributed to delaying progress in priority policies under the Hague programme. The first phase of asylum system is a case in point. In contrast, the inter-institutional dialogue in the co-decision procedure proved particularly profitable and made it possible to reach agreement in a few months on such important instruments as the Directive on data retention, the border code or the local cross-border traffic Regulation. There are various reasons for the slow progress in matters involving Title VI of the . The unanimity requirement for and judicial cooperation in criminal matters slowed the adoption of flagship measures such as the evidence warrant and the Framework Decision on procedural rights. uncertainty and hesitations regarding the choice of legal bases is another source of delay which this year again slowed down the adoption process, despite the judgment given by the Court of on in Case C-176/03. The very first evaluation of the monitoring of the national implementation of JFS policies appears largely compartmental, and certainly insufficient at this stage, though this observation should not be taken as relieving the Member States of responsibility for the shortcomings that have been observed. Moreover, given that many JFS policies are still in their infancy, the evaluation of national implementation is still often premature. Such is the case for asylum, legal immigration, mutual recognition in criminal matters and civil , but also for drugs, where there is a specific monitoring mechanism in the context. But the most striking deficiencies in both quantitative and qualitative terms regarding the general rate of transposal concern instruments under Title VI of the . For example, there is no apparent national equivalent of the Unions determination in the fight against terrorism, to which the monitoring of this policy in the first part of this communication testifies. This report reveals that there is room for improvement in the existing framework, in particular regarding the decision-making process in the areas of and judicial cooperation in criminal matters. That is the purpose pursued, on the basis of the current Treaties, by the Communication on implementing The Hague programme: the way forward, which accompanies this report. The Hague programme: strengthening freedom, security and in Union (OJ C 53, , p. 1) and Council and Commission action plan implementing the Hague programme on strengthening freedom, security and in Union (OJ C 198, , p. Proposals for specific programmes on "citizenship and fundamental rights", "combating violence ()" and "preventing drug consumption and inform the public". In accordance with the first indent of Article 67(5), which provides for the changeover to that procedure after the first phase. In general terms, moreover, the Council Decision of providing for certain areas covered by Title IV of Part Three of the to be governed by the procedure laid down in Article 251 of that Treaty, as required by the Hague programme, provides for a general changeover to the adoption procedure provided for by Article 251 for policies in the field of asylum, immigration and borders, except as regards legal immigration. These include: promotion of fundamental rights, non-discrimination and equal opportunities, for which EU legislation provides a solid framework. Monitoring the national transposal of the Hague programme can begin only with the reports on implementation of the programme for 2007/2008. Lastly, and again exceptionally, certain instruments are subject to national peer review under the joint action of 1997. Such an exercise should thus be conducted for the Framework Decision on Arrest Warrant in 2006. These evaluations are not taken into account in this report, as they either date from too long ago or are too general in nature. For the sake of consistency, the nomenclature of the Hague action plan is followed. Directive 2003/8/EC relating to legal aid and Directive 2004/80/EC relating to compensation for victims of crime. Indicators described in paragraphs 57 to 63 of this Communication. 11228/06 cz DG H2 EN