COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 14.07.1998 
COM(1998) 459 final 
COMMUNICATION FROM THE COMMISSION 
TOWARDS A# AREA OF FREEDOM, SECURITY AND JUSTICE 

TOWARDS AN AREA OF FREEDOM, SECURITY AND JUSTICE 
THE GENERAL FRAMEWORK 
The objective 
The Cardiff European Council called on the Council and the Commission to present 
an action plan on "how best to implement the provisions of the Treaty of Amsterdam 
on an area of freedom, security and justice". In doing so its intention was not to 
launch a simple exercise in drafting or procedural reform. It demonstrated its 
willingness to tackle a major public concern with concrete action. That request is part 
of a clear and ambitious move: to set the Union on the path towards reforms that will 
bring it closer to the people. 
However, it is best to begin by thinking about just what is meant by an "area of 
freedom, security and justice" before listing the various avenues to be explored to 
make it operational. 
The concept enshrines at European Union level the essence of what we derive from 
our democratic traditions and what we understand by the rule of law. The common 
values underlining the objective of an area of freedom, security and justice are indeed 
longstanding principles of the modern democracies of the European Union. The 
challenge set out by the Amsterdam Treaty is not to reinvent democracy and the rule 
of law but to allow citizens to enjoy their long-standing democracies in common. A 
further essential aspect is the economic and social integration of lawfully established 
non-Union nationals, together with the principle of non-discrimination set in the 
Amsterdam Treaty. 
The three notions of freedom, security and justice are closely interlinked. Freedom 
loses much of its meaning if it cannot be enjoyed in a secure environment and with the 
full backing of a system of justice in which all Union citizens and residents can have 
confidence. These three inseparable concepts have one common denominator - people 
- and one cannot be achieved in lull without the other two. Maintaining the right 
balance between them must be the guiding thread for Union action. 
The foundations 
We would be deceiving ourselves if we thought that this area was to be built out of 
nothing. In many areas the Community and the Union have already established 
activities which, in their own fields, help to attain this objective. 
For instance, the main feature of the single market is the creation of an area where 
goods, persons, services and capital must be able to move freely. The Community also 
has a number of social policy instruments which enhance the public's sense of 
belonging, an essential adjunct to the frontier-free area. 
And since the entry into force of the Maastricht Treaty, the foundation has been laid 
for more specific cooperation in the area of justice and home affairs. 
In parallel, but outside the treaty of the Union, Schengen has given substance to the 
desire of certain Member States to advance further in matters relating to the free 
movement of persons. 
On the wider international scene, and in particular within the Council of Europe, the 
Member States have entered into commitments on various aspects of such an area. 
Goingfurther 
This miscellany of achievements, whatever their importance and their significance, is 
not regarded by the general public as an adequate response to the need to make this 
dimension of the European Union a reality. Despite the enormous efforts made, the 
feeling is still that not enough has been achieved. Apart from the absence of 
transparency and the lack of judicial guarantees, there are two main reasons for this: 
these actions are not organised around a single concept giving them sense and 
coherence as stages in the process of attaining a specific objective; 
(he instruments used were either not designed for this purpose in the case of 
Community policies (e.g. social integration measures are not specifically intended 
for crime prevention, even though they can make a major contribution in this 
respect), or they have proved inadequate (as attested, in JHA cooperation, by the 
excessive use of non-binding instruments or the failure to ratify the main 
conventions adopted). 
The Amsterdam Treaty: an important step in the right direction 
This contrasting picture verdict does not match up to the constant concern expressed 
by the public and echoed on a number of occasions by the European Council. 
Hence the importance of the new provisions adopted in Amsterdam in that they open 
up the possibility of significant progress. First of all the objective of maintaining and 
developing the Union as an area of freedom, security and justice is asserted and the 
various aspects involved are reviewed. And secondly, the Union has been given the 
necessary framework in which to accommodate it and the instruments required have 
been strengthened and at the same time made subject to tighter judicial and 
democratic review. The Community method is confirmed: several of the areas of the 
current "third pillar" are brought under Community arrangements and the Community 
institutions are given a role in police and criminal justice cooperation. Finally, the 
integration of Schengen rewards the efforts of the Member States which embarked on 
this cooperation and gives the Union a base on which it will now have to build further. 
In this context fully implementing the Amsterdam Treaty offers a unique opportunity. 
Having said this, it must also be recalled that this cooperation will, at least for the next 
five years, continue to be the subject of the unanimity rule. 
TlIK WAY FORWARD 
A new spirit of interinstitutional cooperation 
Translating the ambitious objectives of the Amsterdam Treaty into concrete action is a 
major responsibility shared by all the institutions. Going no further than declarations 
of intent or simply making cosmetic changes would expose the Union to the risk of 
disappointing the public in proportion to its high expectations. 
One of the keys to success lies in a new spirit of interinstitutional cooperation. It is 
true that one of the features of the new Amsterdam set-up is an adjustment of 
responsibilities giving the Commission a bigger role. But what is important is not so 
much the fact of having a right of initiative, be it shared or exclusive, as the way in 
which this right is exercised. In any case the Treaty provides that for five years the 
right of initiative will be shared between the Commission and the Member States for 
matters transferred to the Community framework. In these areas more than in others it 
will therefore be necessary to continue a constructive dialogue between the Member 
States and the Commission. 
It is the Commission's intention to be guided by the following two lines of action: 
It will, of course, make use of its right of initiative, but in doing so it will set 
priorities which take account of the timetable fixed by the Treaty itself as regards 
full attainment of the free movement of persons. It will base its action on a sound 
understanding of the subsidiarity principle and an analysis of the possibilities 
offered by the new Treaty to consolidate Community and Union action in areas 
where it was hampered by the imperfections of the existing Community 
framework. An initial outline of these priorities is given in the section "Priorities" 
below. 
It will ensure that the opportunity offered by the new Treaty is not wasted. It 
would warn against an attitude that is contrary to the spirit of the new Treaty. In 
concrete terms this means ensuring that the spirit is respected as regards the 
transition period for the work in progress and the integration of the Schengen 
acquis. This is dealt with in the following section. 
The transition to the new Treaty 
Four transitional issues must be addressed : 
The Schengen acquis, whose distribution between the future "first" and "third" pillars 
will have significant consequences for work in this area. It is possible that, if no 
agreement is reached in that exercise by the time the treaty enters into force, the fall­
back position, foreseen in the Amsterdam Treaty's Schengen Protocol, of situating the 
whole of Schengen acquis in the future Title VI will apply. The Commission 
considers that such an outcome would not be acceptable, and would need to be 
corrected over time by the adoption of appropriate Community instruments to take 
over those parts of the Schengen acquis which fall under the future "first pillar". 
"Unfinished business". Currently under discussion in the Council are a number of 
draft instruments tabled before the signature of Amsterdam but with the possibility 
that agreement may be reached in the Council before the Treaty comes into force. The 
Commission will continue to encourage the efforts already being made to introduce 
appropriate Amsterdam language. Should these efforts fail, however, there would be a 
clear need for replacement Amsterdam-based texts to be tabled immediately after the 
entry into force of the Treaty. 
Commission initiatives currently on the Council table. These initiatives, of which the 
draft Convention on Admission and the draft Joint Action on Temporary Protection 
are the most significant, are based on Maastricht. They are unlikely to be adopted 
before the entry into force of Amsterdam. As already stated in the Commission's 
proposals, new texts will be prepared to be ready for immediate tabling when the 
Treaty enters into force. The same consideration applies for any new Commission 
initiatives taken between now and the entry into force of the Treaty. 
The existing Third Pillar acquis as transmitted to the applicant countries, some of 
which even pre-dates Maastricht e.g. the Dublin Convention. In the case of these 
instruments, it will be necessary to examine whether and, if so, on what timescale 
there is a need for Amsterdam versions. In addition to any identified need for 
improvements of substance to these instruments, such reformulations will at the very 
least adapt the existing instruments in terms of the involvement of the institutions of 
the Union. 
PRIORITIES 
The Commission intends to combine its efforts with those of the other institutions and 
the Member States to make this area of freedom, security and justice more tangible in 
the everyday life of the people. Its action will be guided by the priorities set out in the 
following sections. 
It must be borne in mind that one of the features of cooperation in the area of justice 
and home affairs is that it is based on operational arrangements as much as on 
legislative instruments. In this respect the Member States and their competent 
authorities bear a great deal of responsibility. In these areas too, the Commission will 
follow the general guidelines it has set for its legislative policy, in particular by 
conducting the consultations which precede the Commission initiative. 
One must also bear in mind that there is an important link with the enlargement 
process, in particular with the pre-accession strategy. The countries applying for 
membership of the European Union are well aware that Justice and Home Affairs will 
have a special significance for their applications. However, the JHA acquis, is 
different in nature from other parts of the Union's acquis. Much still needs to be done 
and the acquis will therefore be developing constantly over the pre-accession years. 
The Union owes it both to itself and to the applicant countries to build up this acquis 
as quickly and concretely as possible in order to put in place a clear and 
comprehensive framework. The Commission must also ensure the optimal use of the 
assistance the Union can make available to the applicant countries. 
Ayv AREA OF FREEDOM 
A wider concept of freedom 
The wider concept of freedom embodied in the Treaty of Amsterdam aims to give 
"freedom" a meaning beyond free movement of people across internal borders. It is 
also freedom to live in a law-abiding environment in the knowledge that public 
authorities are using everything in their individual and collective power (nationally, at 
the level of the Union and beyond) to combat and contain those who seek to deny or 
abuse that freedom. Freedom must also be complemented by the full range of 
fundamental human rights, including protection from any form of discrimination. 
Another fundamental freedom deserving special attention in today's fast-developing 
information society is that of respect for privacy and in particular the protection of 
personal data. This is especially true when, in support of the development of police 
and judicial cooperation in criminal matters, data exchange networks are set up. The 
Commission will take the measures required to ensure appropriate protection of 
personal data exchanged in the area of freedom, security and justice. 
The Schengen acquis 
The objective for Justice and Home Affairs cooperation has so far been closely linked 
to free movement of people. It has had the effect of focusing efforts on measures to 
compensate for the loss of internal frontier controls and a number of useful and 
relevant instruments have been adopted. 
With the integration of the Schengen acquis the Union will receive a foundation on 
which to build a genuine area of freedom, security and justice within the Union 
framework, thereby marking a real step forward. 
What is required now is fully open management and monitoring of the smooth 
operation of this frontier-free area and its future development. The Commission will 
play its part, taking account of the know-how available to the Commission itself and 
the Member States concerned: for certain aspects such as visa policy, the Commission 
already has the necessary know-how; for others, such as the technical aspects of SIS, 
it intends to draw on the know-how of the Member States to develop its own. 
Immigration and asylum policies 
When looking at the priorities ahead, different considerations must apply to 
immigration policy on the one hand and asylum policy on the other. Future work in 
these areas will essentially be determined by the fact that the new Treaty itself 
contains an obligation to take action within 5 years in a wide range of immigration 
and asylum-related areas involving both substance and procedure. An impressive 
amount of work has already been carried out. However, the instruments adopted so far 
often suffer from two weaknesses: they arc frequently based on "soft-law" such as 
resolutions or recommendations that have no legally binding effect. And they do not 
have adequate monitoring arrangements. The commitment in the Amsterdam Treaty 
to use European Community instruments in the future provides the opportunity to 
correct these weaknesses. 
As far as immigration is concerned, Member States are all subject to migration 
pressures from many - and often new - sources to which they have to respond by 
finding the balance between economic and humanitarian considerations and in line 
with Community legislation and key international agreements. This is particularly true 
for family reunification, which is the largest single group of immigrants still admitted 
into the Union. The abolition of internal border controls and the notion of a common 
external border reinforces the desirability for the Union to develop more similar 
approaches and closer cooperation in the immigration policy area. In this context a 
major priority will be the fight against the trafficking in human beings. 
In the case of asylum, the 1951 Geneva Convention provides the common basis 
around which a European refugee regime is built. The Council has already agreed on 
common guidelines for the interpretation of the refugee definition as laid out in that 
Convention; but further steps have to be taken. There is an urgent need to complement 
the Geneva Convention with instruments capable of handling today's asylum 
challenges, particularly in situations of mass-influx of people seeking international 
protection. When a conflict in a crisis region escalates the number of people fleeing 
that region and arriving in the Union seeking protection can be so great that applying 
normal asylum procedures rapidly becomes impossible. In addition, some of those 
people may need international protection without being eligible under the Geneva 
Convention. This is why the Commission attaches great importance to the adoption of 
a mechanism for giving temporary protection, thus allowing the Union to respond 
adequately and rapidly to situations of mass influx. This has to be accompanied by a 
mechanism of solidarity to assist the Member States which are most affected in a 
particular situation. Aside from mass-influx situations, the Union needs to develop 
minimum standards for asylum procedures as well as subsidiary forms of protection 
for people whose individual cases demonstrate a need for protection, despite the fact 
that they are not refugees under the Geneva Convention. 
Integration of non-Union nationals 
A wider concept of freedom can not be exclusively reserved for EU citizens. It must 
also include the more than ten million third country nationals who live lawfully and 
permanently in our Member States. 
So far, efforts in this area have not been tackled in a generalised and systematic way, 
but rather limited to specific measures (i.e. in the coordination of social security 
systems). The European Union needs to develop a common understanding of the 
extent to which third country nationals and EU citizens should be treated equally. 
Also, the reflection must be continued concerning the difference to be made between 
third country nationals recently arrived and those who have long been living in 
Member States on a permanent basis. 
AN AREA OF SECURITY 
The full benefits of any area of freedom will never be enjoyed unless they are 
exercised in an area where people can feel safe and secure. 
Looking at the new Treaty it is clear that the agreed aim is not to create a European 
Security area in the sense of a common territory where uniform detection and 
investigation procedures would be applicable to all law enforcement agencies in 
Europe in the handling of security matters. Nor do the new provisions affect the 
exercise of the responsibilities incumbent upon Member States to maintain law and 
order and safeguard internal security. 
Amsterdam rather provides an institutional framework to develop common action 
among the Member States in the indissociable fields of police cooperation and judicial 
cooperation in criminal matters. The declared objective is to prevent and combat 
crime at the appropriate level, "organised or otherwise, in particular terrorism, 
trafficking in persons and offences against children, illicit drug trafficking and illicit 
arms trafficking, corruption and fraud". 
The Commission intends, for its part, to make a realistic use of its new right of 
co-initiative foreseen by the Treaty of Amsterdam in the field of law enforcement 
cooperation, recognising the leading role of the Member States. As a first step, and 
building on the experience of the cross-pillar approach adopted in the action plan on 
organised crime, it will consider extending future first pillar initiatives, where 
appropriate, to include related law enforcement proposals. By doing so, the defence of 
the Union's interests will be reinforced, whichever "pillar" they come under (for 
instance concerning the protection of EC financial interests or in the area of 
environmental protection). 
Europol 
As far as Europol is concerned, the new Treaty recognises the essential and central 
role it will play, by requiring that a number of specific measures be adopted within 
five years of its entry into force. The new Treaty provides in particular further 
coordination and more operational tasks to Europol. It is therefore important to start to 
work on the implementation of these measures as soon as possible, now that the 
Europol Convention has at last been ratified by all Member States, so as to allow 
Europol to play fully its new role as an indispensable European cooperation tool. 
These developments should build upon the "acquis" of the Europol Drugs Unit which, 
as a precursor for the future Europol, has gained experience in areas like information 
exchange, technical and operational support, threat analyses and situation reports. 
Organised crime 
Organised crime poses a major and growing threat. It is a phenomenon which has 
developed internationally both in composition and scope at an alarming speed. Not 
only arc a number of foreign organised crime groups building up structures in 
countries of the EU, but cross border cooperation between these groups and domestic 
criminal groups is also increasing. 
The Union's response to this challenge is contained in the Action Plan to combat 
organised crime, endorsed by the Amsterdam European Council, that foresees an 
integrated approach at each step on the continuum from prevention to repression and 
prosecution. 
Important progress has already been made, as the Cardiff European Council 
recognised. Along with progress achieved in the judicial field, EU cooperation has led 
to the building up of European networks between national operational law 
enforcement authorities, enabling them to conduct joint surveillance operations, to 
enhance expertise and specialised training in a series of fields such as drugs, money 
laundering, terrorism, stolen vehicles, football hooliganism, high-tech crime and 
urban violence. 
Drugs 
Drugs deserve a particular mention. They constitute a threat to collective and 
individual security in numerous ways, often but not always linked to organised crime. 
It is an area to which Europe has brought a distinctive and influential approach 
through its insistence on a comprehensive policy based on shared responsibility 
between consumer and producer countries. Within that comprehensive framework, 
however, it is clear that a major component will be the mobilisation of the full weight 
which various law enforcement agencies can collectively bring to bear against the 
traffickers and the criminal organisations which lie behind them. The Treaty of 
Amsterdam will further enhance the Commission's ability to make its contribution to 
the Union's fight against drugs, also in areas where it previously had no formal right 
of initiative. The elaboration of the Union's action plan against drugs for the period 
2000-2005 will be priority for the coming year. 
AN AREA OF JUSTICE 
Judicial systems within the European Union have developed gradually and over a very 
long period of time. An independent and well-functioning judiciary is one of the 
backbones of our shared tradition of Rule of Law. 
As historic experiences vary among Member States, it is hardly surprising that judicial 
systems differ substantially both in terms of material content and procedural rules. 
But we cannot escape the fact that the obstacles and difficulties this creates are hard 
for Union residents to understand, especially when they are supposed to enjoy a 
frontier-free area, now also an area of freedom, security and justice, in which to move 
freely and live their lives. This also applies to firms operating in a single market. 
The new impetus and instruments introduced by Amsterdam provide the opportunity 
to examine what the area of "justice" should seek to achieve. The ambition is to give 
citizens a common sense of justice throughout the Union. Justice must be seen as 
facilitating the day-to-day life of people and bringing to justice those who threaten the 
freedom and security of individuals and society. This includes both access to justice 
and full judicial cooperation among Members States. What Amsterdam provides is a 
conceptual and institutional framework to make sure that those values are defended 
throughout the Union; in other words, the context in which a Union global policy in 
the administration of justice can be developed. 
It is in the framework of the consolidation of an area of freedom, security and justice 
that the concept of public order appears as a common denominator in a society based 
on democracy and the rule of law. With the entry into force of the Amsterdam Treaty, 
this concept which has hitherto been determined principally by each individual 
Member State will also have to be assessed in terms of the new European area. 
Independently of the responsibilities of Member States for maintaining public order, 
we will gradually have to shape a "European public order" based on an assessment of 
shared fundamental interests. 
Judicial cooperation in civil matters 
Reinforcement of judicial cooperation in civil matters, which many believe has 
developed too slowly, represents a fundamental stage in the creation of a European 
judicial area which will bring tangible benefits for every Union citizen. Law-abiding 
citizens have a right to look to the Union to simplify and facilitate the judicial 
environment in which they live in the European Union context. Here principles such 
as legal certainty and equal access to justice should be a main objective, implying 
easy identification of the competent jurisdiction, clear designation of the applicable 
law, availability of speedy and fair proceedings and effective enforcement procedures. 
Judicial cooperation in criminal matters 
Judicial cooperation in criminal matters must be raised to the level reached in police 
cooperation. However effective it may be, judicial co-operation in criminal matters is 
hard pressed today to deal with phenomena such as organised crime, unless there is 
approximation of legislation and facilitation of procedures. 
In concrete terms this means first of all that criminal behaviours should be approached 
in the same way throughout the Union: terrorism, corruption, traffic in human beings, 
organised crime, should be the subject of minimum common rules relating to the 
constituent elements of criminal acts, and should be pursued with the same vigour 
wherever they take place. If serious criminal conduct receives an equivalent response 
and procedural guarantees are comparable throughout the Union, the possibilities of 
improving co-ordination of prosecution, whenever greater efficiency can be reconciled 
with respect for individual rights, must be examined. This goes in particular for policy 
areas where the Union has already developed common policies, and for policy areas 
with strong cross-border implications such as environmental crime, high-tech crime, 
corruption and fraud, money laundering etc. At all events the enhancement of the 
powers of Europol will have to be matched by the development of a judicial function 
at Union level. 
Procedures 
Procedural rules should respond to broadly the same guarantees, ensuring that people 
will not be treated unevenly according to the jurisdiction dealing with their ease. The 
rules may be different provided that they are equivalent. This would in particular 
cover matters relevant to the rights of defence, where common principles and codes of 
good practice should be developed (i.e. interpretation, taking of evidence, ..), but 
could also extend to persons involved in procedures in any other capacity (witness, 
victim, expert,..). Moreover, in criminal areas, it should not be limited to the 
proceedings leading to a possible conviction, but should also be applicable to the 
enforcement of a decision, including, for instance, confiscation of assets, early or 
conditional releases and reintegration. 
Cross-border litigation 
Difficulties with which citizens are intrinsically confronted in cross-border litigation, 
be it in civil or in criminal matters, should be neutralised as much as possible. This 
means, for example, streamlined communication of documents and information, use 
of multilingual forms, creation of mechanisms or networks to assist and advise in 
transnational cases, and even financial compensation for the extra costs involved in 
such cases. 
CONCLUSION 
With its call to the Council and the Commission, the Cardiff European Council 
demonstrated the importance it attaches to grasping all the opportunities offered by 
the Amsterdam Treaty in what is a crucial matter for the Union, its Member States and 
their citizens. The Heads of State and Government expressed their desire to see a 
number of issues addressed which are complex and, in some cases, sensitive, but 
which are vital for the future of the Union. 
The Commission regards the design and implementation of this plan of action as a 
joint effort with the Council. It feels that the European Parliament should also be 
involved, with the enhanced role it will enjoy in the new institutional arrangements. A 
dialogue with the civil society concerned is likewise considered essential. This 
communication, by which the Commission wished to present its approach, is an initial 
contribution to a dialogue which will have to get under way in the months ahead. It 
will be stepped up at a later stage, in particular when it comes to identifying in detail 
the priority actions which will put flesh on this initial outline. 
In presenting its ideas, the Commission is particularly conscious of the need, 
especially so long as the right of initiative is to be shared between it and the Member 
States, for coordination with the Council with regard to the preparation of the Action 
Plan called for in Cardiff. As far as the exercise of its own right of initiative is 
concerned, it proposes applying the following list of criteria: 
1. bring into line with the new Treaty the proposals already on the table but not 
adopted before Amsterdam; 
2. ensure consistency with instruments already in force, by proposing initiatives 
to develop and/or extend the acquis (e.g. in the area of visas); 
3. make optimum use of the Commission's existing know-how, before 
developing specific know-how in areas in which hitherto the Commission had 
no formal powers; 
4. check to what extent a law-enforcement aspect needs to be prepared for the 
existing Community policies; 
5. strike a balance in all areas of action between freedom on the one hand and 
security and justice on the other. 

ISSN 0254-1475 
COM(98) 459 final 
DOCUMENTS 
EN 01 06 16 
Catalogue number : CB-CO-98-476-EN-C 
ISBN 92-78-38430-5 
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