# EUR-Lex - 52004IP0022(01) - EN

Important legal notice

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# 52004IP0022(01)

**European Parliament recommendation to the Council and to the European Council on the future of the area of freedom, security and justice as well as on the measures required to enhance the legitimacy and effectiveness thereof (2004/ 2175(INI)) **

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Official Journal 166 E , 07/07/2005 P. 0058 - 0063 *

P6_TA(2004)0022

Future of the Area of Freedom, Security and Justice

European Parliament recommendation to the Council and to the European Council on the future of the area of freedom, security and justice as well as on the measures required to enhance the legitimacy and effectiveness thereof (2004/2175(INI))

The European Parliament,

- having regard to the proposal for a recommendation to the Council and to the European Council by Baroness Sarah Ludford on behalf of the ALDE Group on the future of the area of freedom, security and justice as well as on the measures required to enhance the legitimacy and effectiveness thereof (B6-0006/2004),

- having regard to Rule 114(3) and Rule 94 of its Rules of Procedure,

- having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6-0010/2004),

A. having been informed that, on 5 November 2004, the European Council intends to lay down the priorities for the area of freedom, security and justice (AFSJ) for the next few years,

B. having noted the significant progress that has been made, but also the many delays in the EU's efforts to implement the AFSJ referred to in Article 2 of the EU Treaty,

C. regretting that progress in the field of asylum and immigration has been mainly devoted thus far to action to counter illegal immigration and has not been accompanied by sufficient efforts to promote the integration of legally resident aliens,

D. whereas refugee camps outside the Union should not be envisaged since they entail a clear risk of fundamental rights being violated,

E. convinced that any future development of the AFSJ must take into account:

- the existence, since 11 September 2001, of the threat of international terrorism, which struck the European Union dramatically in the form of the Madrid attacks of 11 March 2004,

- enlargement to include 10 new Member States, which turns the EU into a democracy with a population of over 450 million people,

- the entry into force on 1 February 2003 of the Treaty of Nice, which, for the first time, provides for the extension of qualified majority voting and of the codecision procedure to certain important asylum and immigration policy measures as well as to measures on judicial cooperation in civil matters,

- the signing on 29 October 2004 of the draft Constitutional Treaty [1], which incorporates the Charter of Fundamental Rights as Title II thereof, generalises the use of codecision for legislative procedures, extends the supervisory role of the Court of Justice to include the measures relating to the AFSJ from which it had hitherto been excluded and, finally, gives individual citizens the right to bring actions before European courts,

- the fact that terrorism is the main problem affecting the harmony and security of the people of Europe, now and above all in the future and that this is an essential motive for our conviction that the development of the AFSJ must become a genuine symbol and reference point for the significance of the added value provided by the Union in the fight against that evil,

- the lack of a shared diagnosis on the means of dealing with the security problems affecting the people of Europe,

- the fact that terrorism has not been seen as the priority problem affecting harmony and security for the people of Europe,

F. alarmed at the shortcomings of the Member States and of the institutions in the implementation of the AFSJ which were criticised during the Convention's deliberations, in many European Council conclusions and in the Commission's periodic reports,

G. whereas these shortcomings must be rectified immediately through appropriate reforms to be adopted in compliance with the Treaties in force and in the light of the policy objectives set out in the draft Constitutional Treaty, which is to be signed on the eve of the European Council,

H. whereas, although Article 29 of the EU Treaty confers on the EU responsibility to "provide citizens with a high level of safety within an area of freedom, security and justice", the EU's response has been more virtual than real, because of:

- the unanimity rule, which makes it very difficult to take binding decisions,

- the excuse of sovereign powers, which often conceals corporate reflexes,

- the absence of a clear division of roles between the EU and its Member States in terms of the various policies (immigration, judicial cooperation and data protection) as well as between Member States (involved in full or in part in cooperation under the Schengen Accord),

- the absence of credible and properly structured follow-up procedures,

- the absence of credible security provisions in the event of a crisis or of a refusal to cooperate,

I. whereas it is impossible:

- to dissociate the implementation of the AFSJ from a policy of protection and promotion of fundamental rights and citizenship within the Union and

- to dissociate the principle of mutual recognition from a minimum level of harmonisation aimed at creating mutual confidence,

J. whereas it is necessary to anticipate all the new Constitution's provisions proposing wider application of codecision and of qualified majority voting every time that the treaty in force offers the legal possibility of so doing,

K. regretting that, over the last five years, some Member States within the Council have opposed the establishment of standards of protection of citizens' rights and individual citizens and that the lack of such standards has often been cited (sometimes even by the same Member States) as a reason for blocking mutual recognition,

L. convinced that the pragmatic solutions proposed by certain Member States will not succeed in solving the actual problems posed by the development of the AFSJ unless there is clear agreement on a common set of principles, as shown by the failure to make any serious progress on the question of data protection,

M. alarmed at the lack of entirely appropriate measures to combat the threat of terrorism and to meet the challenges posed to citizens' freedoms, and convinced that "the concept of national security and public order needs to be given a European dimension, so that Member States treat a threat to any other Member State's national security or public order as a threat to their own national security or public order" [2],

N. aware of its overriding responsibility to protect European citizens' rights and their security, and deploring the lack of transparency and of democracy in the planning and decision-making procedures within the AFSJ, with the result that the European Parliament and national parliaments are often confronted with a fait accompli,

1. Recommends that, when defining the future of the AFSJ, the European Council and the Council base their actions on the following three general requirements:

(a) enhancing the legitimacy of the AFSJ:

- by determining, in keeping with the spirit of the Constitution and of the agreements already concluded on the implementation of the Treaty of Nice, to use the codecision procedure, to use qualified majority voting in the Council and to extend the jurisdiction of the Court to cover the AFSJ, initially for immigration measures (Article 67 of the EC Treaty) and, subsequently, for measures connected with combating terrorism and international crime (Article 42 of the EU Treaty),

- by ensuring that the institutions of the Union comply with the same standards of strictness as regards freedom, democracy and the rule of law as they expect from the Member States,

- by immediately applying the principle of transparency to legislative debates in the Council as well to the transposition into national law of the measures taken by the Union (adapting to this end Regulation (EC) No 1049/2001 [3] and the rules of procedure of the Council and of the Commission),

- by providing for systematic consultation of Parliament on any international agreement concluded by the Union on judicial cooperation in criminal and police matters, as well as on any proposed common position with regard to the AFSJ, a particularly necessary step given that such documents are not subject to scrutiny by the national parliaments,

- by involving the European Parliament and national parliaments fully and in good time in the drafting and updating of the legislative and operational programme in the AFSJ (Article III-258 of the draft Treaty establishing a Constitution for Europe);

(b) promoting fundamental rights and freedoms through policies linked to the AFSJ and therefore:

- taking into account in the next action plan not only the policy objectives defined at Tampere which fall within the remit of the Justice and Home Affairs Council but also all other policies associated in the current Treaties with fundamental rights, citizenship, the protection of minorities, the fight against discrimination, the promotion of transparency, and data protection,

- raising awareness of rights relating to European citizenship, in agreement with the Member States, so that no European citizens deem themselves foreigners in any country of the Union,

- ensuring systematic training in European law for judges, lawyers and police officers responsible for ensuring respect for the rule of law, since every national judge or national police officer is also a European judge or a European police officer,

- calling for the early establishment of a European fundamental rights agency to serve European and national institutions and to be responsible for a systematic evaluation of current fundamental rights policies throughout the EU, also with regard to Article 7 of the EU Treaty, this agency being subject to the principles, procedures and controls applicable to Community agencies,

- calling for the early establishment by the Commission of a European aid office for the victims of terrorism, as a point of reference and contact at European level for citizens suffering from the violation of their fundamental rights as a result of the terrorist threat menacing Europe and the rest of the world,

- restoring through new legislative proposals the balance between security imperatives and respect for fundamental rights,

- calling for prior monitoring for respect for fundamental rights (as laid down by the Charter of Fundamental Rights of the Union) of any legislative act of the Union or of the Community,

- promoting, in order to enhance mutual trust, a culture of fundamental rights within the EU, allowing for permanent dialogue between the highest courts, public administrations and law professionals, as well as the development of information exchange and discussion networks between judges, administrations and research workers,

- strengthening the concept of Union citizenship and including guarantees for the freedom of movement of Union citizens and their family members and registered partners of either gender,

- guaranteeing a common level of fundamental rights protection throughout the Union, whilst promoting mutual recognition and better judicial cooperation between Member States, as well as the adoption of common minimum standards for certain aspects of procedural law;

(c) credibility both at Union level and in terms of the Member States' response: This implies that the guidelines of 5 November 2004 will include a credible timescale for each objective, the setting up of a monitoring group (involving the European Parliament and the national parliaments) and the establishment of sufficiently ambitious objectives, such as:

- the commitment to carry out systematic research into internal security requirements within the Union (see the PASR-2004 project), particularly in order to prevent catastrophes caused either by natural disasters or by terrorist attacks,

- the creation at European level of a nucleus of operational provisions with regard to judicial and police cooperation in the form of decisions and framework decisions, based on the substance of the relevant conventions signed but not ratified by a majority of the Member States by 31 December 2004,

- the enhancement at Union level of the Commission's role in respect of operational activities, including those under the responsibility of the anti-terrorism coordinator, guaranteeing the conditions for an operational partnership between the anti-terrorism coordinator and the Commission, and effective parliamentary scrutiny of the coordinator's activities; at all events, the status of the coordinator, currently working with the High Representative for the CFSP, must be reviewed when the latter is replaced by the Union Minister for Foreign Affairs, a Vice-President of the Commission,

- the development of a coherent body of computerised networks, subject to respect for the legislation on data protection, allowing permanent mutual accessibility to national administrations responsible for security checks (e.g. reformatting of SIS II), for judicial cooperation (e.g. mutual accessibility of national police records) or for the movement of persons, including third-country nationals (see the VIS project),

- the conversion, by a decision based on Article 30 of the EU Treaty, of Europol into a European agency subject to the principles, procedures and controls applicable to Community agencies,

- the incorporation in decisions and framework decisions of all the measures on judicial and police cooperation that appear in the conventions signed but not ratified by the Member States,

- the definition of procedures for the acquisition, processing and monitoring, including parliamentary and judicial monitoring, of intelligence information,

- the identification, in recognition of the fact that there are common internal problems and that an external policy might thus be possible, of the main areas which the EU must address in earnest, such as asylum, immigration and terrorism, such identification joining in common cause the Commission and the Justice and Home Affairs Council,

- the adoption of data protection standards and the establishment of a joint data protection authority which would act as an umbrella organisation at European level for the national authorities responsible for this area,

- the submission of the Union's executive authorities responsible for the collection and processing of confidential information to the democratic control of Parliament in ways similar to those exercised at national level in most of the Member States;

2. Recommends to the European Council and to the Council the following specific objectives to be attained over the next five years:

(a) with regard to immigration policy, defining a coherent legislative framework with a view to the attainment of six objectives:

- establishing a coherent immigration policy in order to develop legal routes to migration, which might in particular reduce the incentives for illegal immigration,

- meeting the new demographic and economic challenges currently faced by the Union, taking full account of the Member States' reception capacities,

- recognising that migrants do not merely represent a source of temporary labour which can be used to remedy imbalances, and instead giving due consideration to the long-term contribution they can make to our societies,

- supporting the social, cultural and political integration of migrants through appropriate measures and funding,

- incorporating in decisions and framework decisions all the provisions of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, as adopted by the United Nations General Assembly on 18 December 1990,

- establishing a coherent framework of international cooperation with the countries of origin;

(b) with regard to the policy on the fight against illegal immigration, creating an appropriate legislative framework with a view to the attainment of the following three objectives:

- harmonising among the Member States the concept of illegal immigration, vital to the forging of a common approach,

- setting up a common policy on combating illegal immigration and preventing clandestine employment by punishing traffickers,

- setting up a common policy on combating all forms of trafficking in human beings;

(c) with regard to repatriation policy, defining, under the codecision procedure, in accordance with the commitments made pursuant to Declaration No 5 on Article 67 of the EC Treaty and on the basis of respect for the Geneva Convention, a repatriation policy, in agreement with the countries of origin or destination, aimed at ensuring common standards of protection for repatriated persons and obliging Member States to respect the dignity and physical integrity of persons expelled under repatriation operations;

(d) with regard to asylum policy, defining a uniform status and a common asylum procedure, as provided for at Tampere and confirmed by the draft Constitutional Treaty, while strengthening the measures for the protection of refugees or persons requiring humanitarian aid and ensuring the full exercise of their individual and social rights, especially to health, education and employment; also points out that the legal framework that must be respected by the Union and its Member States to the benefit of such persons cannot be called into question by international agreements, whether they are negotiated by the Union and/or its Member States; with regard to that policy, drawing lessons from the experience gained with the Sangatte centre and taking account of the concerns expressed by organisations which defend the rights of migrants, in particular by the International Federation of Human Rights Leagues, which are calling on the Union not to shirk its responsibilities under the Geneva Convention and not to run the risk of creating a legal vacuum with regard to persons who are among the most deprived on the planet;

(e) with regard to judicial cooperation, encouraging mutual recognition, which implies the adoption of measures favouring the development of mutual trust between judicial authorities and citizens as well as between judicial authorities themselves:

- with regard to judicial cooperation in civil matters, adopting measures bringing into line family law, the legal framework for inheritance and the other fields at present covered by the minimum rules established under the Hague Conference on Private International Law,

- with regard to judicial cooperation in criminal matters, adopting measures defining the essential elements of the offences set out in Article 2 of Framework Decision 2002/584/JHA [4] on the European arrest warrant and the surrender procedures between Member States and adopting measures defining the minimum guarantees to be provided for persons who are charged and persons held in custody; in the same field there is also a need to give a new impetus to Eurojust with the objective of creating a European Public Prosecutor's Office with powers extending beyond the protection of the Union's financial interests alone;

(f) carrying out, by the end of 2005, a precise, public assessment of the implementation of the counter-terrorism action plan and its relationship with the corresponding national and international plans, and its full compliance with respect for individual freedoms;

(g) carrying out a precise, public assessment of the practical effects of the existence of individual schemes specific to certain Member States and preparing the ground for their progressive integration into European law;

(h) setting up an integrated border management system allowing for cooperation between the European Agency, which is to be established, and the national bodies responsible for the control of individuals and goods;

3. Congratulates the Dutch Presidency on its commitment to adopt, by 1 April 2005 at the latest, the decision providing for all measures falling under Title IV of the Treaty establishing the European Community to be dealt with by qualified majority and in accordance with the codecision procedure; calls on the European Council to endorse this suggestion;

4. Instructs its President to forward this recommendation to the Council, to the European Council and, for information, to the Commission, as well as to the governments and parliaments of the Member States.

[1] The references in this resolution are taken from document number CIG/87/04.

[2] Proposal by the Dutch Presidency, document number 11122/04, point 4.2.

[3] OJ L 145, 31.5.2001, p. 43.

[4] OJ L 190, 18.7.2002, p. 1.

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