EN Official Journal of the European Union C 451/104

Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions — The EU Justice Agenda for 2020 — Strengthening Trust, Mobility and Growth within the Union’

COM(2014) 144 final

(2014/C 451/17)

Rapporteur: Xavier Verboven

On 14 March 2014 the European Commission decided to consult the European Economic and Social Committee, under Article 304 of the Treaty on the Functioning of the European Union, on the:

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions — The EU Justice Agenda for 2020 — Strengthening Trust, Mobility and Growth within the Union.

COM(2014) 144 final.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 20 June 2014.

At its 500th plenary session, held on 9 and 10 July 2014 (meeting of 10 July), the European Economic and Social Committee adopted the following opinion by 72 votes to 1 with 0 abstentions.

1. Conclusions and recommendations

1.1 The Committee has taken note of the Commission's communication and considered it useful to make comments on the policy objectives set out by the Commission, and to make a number of other specific recommendations.

1.2 With regard to the policy objective of ‘enhancing mutual trust’, the Committee considers this to be an appropriate policy priority that is in line with the provisions of the Treaty on the Functioning of the European Union (hereinafter TFEU) under the heading Justice. With regard to the initiatives that might be taken over the next five years to strengthen this mutual trust, the Commission is rather vague and superficial. The Committee considers that the cooperation that was achieved in the past by means of cooperation agreements should be further encouraged by drawing up successor instruments.

1.3 With regard to the policy objective ‘supporting economic growth’, the Committee notes that striving for economic growth is recognised as an important priority, albeit on condition that sustainable growth is meant. Economic growth cannot, however, in itself be viewed as a policy objective of a justice policy that, having regard to the TFEU, is to be aimed at achieving a high level of security and easy access to justice, which cannot be subordinated to economic growth. This does not take away the fact that a properly functioning justice system within the Member States of the European Union can have a positive effect on sustainable economic growth within the Union, specifically by enabling disputes to be resolved more quickly and more appropriately and by enhancing legal certainty in civil matters, and by better tackling criminal matters such as money laundering and organised crime, which are damaging to the mainstream economy.

1.4 With respect to the policy objective ‘supporting mobility’, the Committee points out that supporting mobility within the European Union, in particular by ensuring that citizens of the Union can exercise their rights everywhere, can be linked to the objective set out in the TFEU of facilitating access to justice. It should be emphasised that Title V does not only set ‘freedom’ as an objective, but also security and justice, which can lead to restrictions on freedom. Rather than supporting mobility, the objective must be to ensure access to efficient justice serving citizens who exercise their right to free movement.

1.5 The Committee also notes that the Commission's communication fails to mention a number of things that could contribute to achieving an area of freedom, security and justice. — Firstly, consideration could be given to introducing magistrates specialising in European law in the Member States with the aim of providing greater legal certainty to citizens in disputes relating to European legislation. — Secondly, consideration could be given to setting up operational European police forces and inspection services with a view to effectively tackling crimes and fraud with cross-border aspects. — Thirdly, in the area of criminal law, thought must be given to the extent to which minimum rules should be established concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension, such as terrorism, trafficking in human beings, sexual exploitation, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. — Fourthly, consideration could be given to the mandatory introduction of collective redress (class action) so as to improve access to justice for EU subjects. — Fifthly, it is desirable for a scoreboard to be maintained of achievements in the area of justice and, in particular, the implementation of the policy plans. — Sixthly, it is absolutely essential to appoint a Commissioner responsible for human rights as part of the future make-up of the Commission.

2. Gist of the Commission Communication (1)

2.1 Context of the Communication

2.1.1 The European Commission has already taken various legislative initiatives in the area both of criminal and of civil law, which has led to quite a number of steps being taken towards making an area of freedom, security and justice a reality.

2.1.2 The policy direction has been sketched out in five-year programmes such as the Tampere programme, the Hague programme and ultimately the Stockholm programme, the latter of which expires at the end of 2014. Given the expiry of the Stockholm programme, and given the expansion of the Union's competences in the field of justice arising from the Lisbon Treaty, this Commission communication seeks to set out the political priorities that should be pursued in order to make further progress towards a properly functioning European area of freedom, security and justice aimed at trust, mobility and growth by 2020.

2.1.3 This communication seeks to contribute to the strategic guidelines on legislative and operational planning that the European Council defines in accordance with the provisions of Article 68 TFEU with a view to achieving an area of freedom, security and justice, and to the strategic choices that the European Parliament will need to make on the matter (2).

2.2 Gist of the communication

2.2.1 Challenges for the future/policy objectives

In its communication, the Commission defines three objectives for the future, namely:

a) Mutual trust Further strengthening the trust of citizens, law practitioners and judges in court judgments, regardless of in which Member State they were pronounced.

b) Mobility The obstacles that EU citizens still encounter when taking advantage of free movement must be further dismantled.

c) Economic growth Justice policy must continue to support economic growth, not least by strengthening the enforceability of contracts in cross-border trade and by supporting the digital economy.

2.2.2 The means defined by the Commission to achieve the above objectives are: consolidation, codification and complementing. The Commission points out that complementing existing policy instruments must always be done with the purpose of enhancing mutual trust, boosting growth and facilitating the life of citizens.

3. Comments

Comments on the policy objectives defined by the Commission

3.1 The Union's competence in matters of justice

3.1.1 The Union's competence in the field of justice is explicitly set out in Title V of Part 3 of the TFEU, which is entitled ‘Area of Freedom, Security and Justice’.

3.1.2 Article 67 TFEU provides that the Union is an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.

3.1.3 In this context, the institutions of the European Union are tasked with (3): — ensuring the absence of internal border controls for persons and framing a common policy on asylum, immigration and external border control; — endeavouring to ensure a high level of security; — facilitating access to justice.

3.1.4 For the purposes of fulfilling these tasks, the Union is competent in the field of justice, policing, and asylum and immigration.

3.1.5 In the area of justice, the Union has competences both in civil and in criminal matters.

3.1.6 The competences in criminal justice include first and foremost the competence, with a view to putting into practice the principle of mutual recognition of court rulings, of adopting measures and establishing minimum rules relating to criminal proceedings. This competence includes, for example, the competence to lay down minimum rules in relation to the rights of individuals in criminal procedure or of victims of crime, as well as the competence to take measures to prevent and settle conflicts of jurisdiction. Secondly, the criminal law competences include the competence to establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension, such as terrorism, trafficking in human beings, sexual exploitation, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. Thirdly, measures can be taken to promote crime prevention. Fourthly, the competence in the field of criminal law includes supporting and strengthening the coordination and cooperation between national investigating and prosecuting authorities. Fifthly, the competence in the field of criminal law includes the competence to establish a European Public Prosecutor's Office for the purposes of combating offences against the Union's financial interests.

3.1.7 The justice competences in the field of civil law include the competence to take measures aimed at (1) the mutual recognition and enforcement between Member States of judgments; (2) the cross-border service of judicial and extrajudicial documents; (3) laying down rules concerning conflict of laws and of jurisdiction (international private law); (4) cooperation in the taking of evidence; (5) effective access to justice; (6) the elimination of obstacles to the proper functioning of civil proceedings, (7) alignment of standards applying to the conflict of laws and jurisdiction, and (8) the development of alternative methods of dispute settlement.

3.2 Conformity of the policy objectives defined by the Commission with the Union's competences in the area of justice set out in the TFEU

3.2.1 Policy objective ‘enhancing mutual trust’

3.2.1.1 The Commission is right to set enhancing mutual trust between competent authorities of the Member States in each other's decisions as a policy objective in the area of justice. This deserves to be supported, even if it is more of a means of achieving judicial cooperation rather than an end in itself.

3.2.1.2 According to the TFEU, the Union, both in civil and criminal law, is to carry out a policy aimed at judicial cooperation based on the principle of mutual recognition of judgments, which implies mutual trust in each other's judgments (4).

3.2.1.3 With regard to the initiatives that might be taken over the next five years to strengthen this mutual trust, the Commission is rather vague and superficial. The Committee considers that the cooperation that was achieved in the past by means of cooperation agreements could be further encouraged and supported, for example by drawing up judicial successor instruments.

3.2.2 Policy objective ‘supporting economic growth’

3.2.2.1 That the Commission should set supporting economic growth as a policy objective in the area of justice is not obvious. The TFEU confers competences upon the Union in the field of justice to ensure a high level of security and to facilitate access to justice in civil matters.

3.2.2.2 Over recent years, not least due to the financial and sovereign debt crises and in line with the Europe 2020 strategy, EU justice policy has also become a tool for supporting economic recovery, growth and structural reform. The Committee stresses, however, that economic growth cannot in itself be viewed as an objective of justice policy. It must be ensured that future EU justice policy does not in all circumstances prioritise initiatives that are either purely connected with facilitating trade, or are interpreted purely in that context. There is thus a risk that other aspects that are equally or more closely related to achieving an area of freedom, security and justice may not (any longer) be considered, such as the protection of fundamental rights.

3.2.2.3 Striving for economic growth is recognised as an important priority, albeit on condition that sustainable growth is meant. Economic growth cannot, however, in itself be viewed as a policy objective of a justice policy that, having regard to the TFEU, is to be aimed at achieving a high level of security and easy access to justice, which cannot be subordinated to economic growth. In this context, a properly functioning justice system within the Member States of the European Union can have a positive effect on sustainable economic growth within the Union, specifically by enabling disputes to be resolved more quickly and more appropriately and by enhancing legal certainty in civil matters, and by better tackling criminal matters such as money laundering and organised crime, which are damaging to the mainstream economy.

3.2.3 Policy objective ‘supporting mobility’

3.2.3.1 The fact that the Commission has set supporting mobility within the European Union as a policy objective in the area of justice, in particular by ensuring that citizens of the Union can exercise their rights everywhere, can be linked to the objective set out in the TFEU of facilitating access to justice.

3.2.3.2 It should be emphasised that Title V does not only set ‘freedom’ as an objective, but also security and justice, which can lead to restrictions on freedom. Rather than supporting mobility, the objective is ensuring access to efficient justice serving citizens who exercise their right to free movement. Otherwise, we once again end up in a far broader spectrum than justice alone and a very wide-ranging mish-mash of issues can be brought into play, such as cutting red tape for those exercising their right to free movement, such as the rules on divorce and inheritance for people who use their right to free movement, and rules on transferring pension funds for citizens who exercise their right to free movement, the rules on European vehicle inspections, etc.

3.3 Specific comments

3.3.1 The Commission's policy plan fails to mention a number of things that could nonetheless contribute to achieving an area of freedom, security and justice.

3.3.2 Firstly, consideration could be given to introducing magistrates specialising in European law in the Member States with the aim of providing greater legal certainty to citizens in disputes relating to European legislation.

3.3.3 The Commission quite rightly stresses the need to train all judges and prosecutors in European Union law. It also calls for training to be taken ‘a step further’ by inviting all legal practitioners to take part in European training programmes under the Justice 2014-2020 programme. The EESC considers this to be a key point. In line with the objective set by the Stockholm programme of strengthening rights of defence, it considers it particularly important that lawyers, who are also the first points of access to the law, should be able to benefit from such programmes.

3.3.4 Secondly, consideration could be given to setting up operational European police forces and inspection services with a view to effectively tackling crimes and fraud with cross-border aspects.

3.3.5 Thirdly, in the area of criminal law, thought must be given to the extent to which minimum rules should be established concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension, such as terrorism, trafficking in human beings, sexual exploitation, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. With regard to conduct in respect of which the differences between Member States in the area of criminal law are so great as to undermine human rights and legal certainty, it would be useful to look at the extent to which harmonisation of criminal law is necessary (5).

3.3.6 Fourthly, consideration could be given to the mandatory introduction of collective redress (class action) so as to improve access to justice for EU subjects.

3.3.7 Fifthly, it is desirable for a scoreboard to be maintained of achievements in the area of justice and, in particular, the implementation of the policy plans.

3.3.8 Sixthly, it would be useful to include a role of Commissioner responsible for human rights in the new Commission that is to be constituted.

Brussels, 10 July 2014. The President of the European Economic and Social Committee Henri MALOSSE

(1) COM(2014) 144 final.

(2) COM(2014) 144 final, point 1 ‘Introduction’.

(3) Article 67 TFEU.

(4) Articles 81 and 82 of the TFEU.

(5) On this subject, see CESE 1302/2012 European drugs policy.