B4-1460/95

Resolution on the progress made in 1995 in the implementation of cooperation in the fields of justice and home affairs pursuant to Title VI of the Treaty on European Union

The European Parliament,

- having regard to Article K.6 of the EU Treaty,

- having regard to Rule 94(2) of its Rules of Procedure,

- having regard to its resolutions of 13 December 1994 on the progress made during 1994 in the implementation of cooperation in the fields of justice and home affairs pursuant to Title VI of the Treaty on European Union ((OJ C 18, 23.1.1995, p. 39.)), 21 September 1995 on the Communication from the Commission to the Council and the European Parliament on immigration and asylum policies ((Minutes of that Sitting, Part II, Item 6.)) and 22 September 1995 on the draft Council resolution on the admission of third- country nationals to the territory of the Member States of the European Union for study purposes, on the draft Council resolution relating to the limitations on the admission of third-country nationals to the territory of the Member States for the purpose of pursuing activities as self- employed persons, on the draft Council conclusions on the organization and development of the Centre for Information, Discussion and Exchange on the crossing of frontiers and immigration ((Minutes of that Sitting, Part II, Items 8(a), (b) and (c).)),

A. whereas the Union possesses a unique institutional framework and respects the fundamental rights and national identity of its Member States, whose systems of government are based on democratic principles,

B. whereas intergovernmental conventions have very clearly shown their weakness as a legal method of developing European integration in the field of justice and home affairs,

C. whereas conventions and other Council decisions which are interpreted differently in the individual Member States call the rule of law into question, and whereas it should be in the interest of democratic Member States to have a common interpretation of the conventions and other texts which would lead to common basic principles,

D. whereas the Presidency and the Commission must regularly inform the European Parliament of discussions in this area, pursuant to the first paragraph of Article K.6 of the Treaty on European Union, and whereas the Presidency must consult the European Parliament on the principal aspects of activities in these areas and ensure that its views are 'duly taken into consideration', as stipulated in the second paragraph of Article K.6 of the Treaty,

E. whereas the absence of compensatory measures and the slow pace of the relevant decision-making process cannot be used to justify the failure to complete the abolition of frontier controls; recalling that Article 7a of the EC Treaty provides for the free movement of persons to be introduced by 31 December 1992 and that improvements are needed in this area if the agreed objectives are to be achieved,

F. whereas the free movement of persons includes citizens of third countries residing legally on the Union's territory and whereas freedom of movement, as well as the compensatory measures it entails, fall within the jurisdiction of the first pillar,

G. whereas the Council has taken the following decisions under the third pillar, representing a marked increase in decisions taken compared to 1994:

- joint action No. 95/73/JHA on the Europol Drugs Unit,

- the Convention on simplified extradition procedure between the European Union Member States,

- a resolution on the minimum guarantees required for procedures on applications for asylum (doc. 5354/94 ASIMM 70),

- the Europol Convention,

- the Convention on a customs information system,

- the Convention on protection of the Community's financial interests,

- joint action on the budget,

- a resolution on burden-sharing with regard to the reception and temporary abode of displaced persons,

- conclusions on an alert and emergency procedure for burden-sharing with regard to the reception and temporary abode of displaced persons,

- a convention on insolvency procedures,

- regulations on the Management Board of Europol,

- resolution on the protection of witnesses in the fight against international organized crime,

- two agreements in principle on joint actions:

. definition of the term 'refugee'

. airport transit,

- an agreement in principle on a resolution on the status of third- country nationals residing for long periods in the European Union,

- the Gomera Declaration against terrorism;

- agreement that acts and treaties adopted in the field of asylum and immigration should be published in the Official Journal of the European Communities,

and whereas the work of the JHA Council of 23 November 1995 reflects the Presidency's determination to move towards a European civil judicial area and to ensure greater transparency in Council acts,

H. disappointed at the outcome of the JHA Council meeting on 23 November 1995, which failed to adopt the joint action against racism and xenophobia, and at the common position adopted on harmonizing the concept of refugee, which restricts the scope of the Geneva Convention in that it recognizes as refugees only those persons persecuted by state authorities,

I. whereas the problems encountered in applying the Schengen Agreement demonstrate that the intergovernmental mechanism alone is completely unsatisfactory and should be replaced by another, more binding and democratic mechanism,

J. whereas the Council keeps its documents secret and the Court of First Instance quashed, on 19 October 1995, a Council Decision refusing to grant access to its documents, and whereas the Council must now, as it has been asked to do by the President of the European Parliament, take action to ensure that its proceedings are made public as befits the legislator or co-legislator in a democracy,

K. whereas it is surprising that, in connection with Title VI, the Council keeps secret from the European Parliament proposals for common positions, joint actions, agreements and possible implementing measures on which the European Parliament must be consulted pursuant to Article K.6,

L. whereas the application of Article K.9 requires unanimity,

1. Notes that the implementation of cooperation in the fields of justice and home affairs is still characterized by the same problems and the same omissions as those emphasized in its aforementioned resolution of 13 December 1994,

2. Considers that the obvious weakness of the third pillar derives from:

- the lack of clear political objectives in Title VI of the EU Treaty;

- the questionable way in which responsibilities have been divided among the Community (first pillar), cooperation in the field of justice and home affairs (third pillar) and the Member States;

- the requirement of unanimity which either leads to stalemate or leads to minimal decisions, reduced to the lowest common denominator of the laws of the various Member States;

- the instruments provided for under Article K.3, leading to disputes as to whether or not the common positions and actions are binding, and cumbersome and complex conventions;

- the restrictive interpretation of intergovernmental cooperation by the Council and certain Member States and their desire to perpetuate intergovernmental practices;

- the lack of adequate judicial supervision by the Court of Justice;

- the unwillingness of the Member States to make use of all the resources of Title VI, Articles K.3 and K.4 (the possibility of using qualified majority voting in some cases and stipulating that the Court of Justice shall have jurisdiction) and Article K.9;

3. Notes that none of the recommendations made to the Council in its aforementioned resolution of 13 December 1994 has been put into effect; wonders exactly what the Council regards as taking the views of the European Parliament 'into consideration',

4. Notes and regrets, in particular, that successive Presidencies have interpreted too narrowly and thus failed to comply with the obligations placed upon them by Article K.6 of the Treaty on European Union, namely:

- the obligation to regularly inform the European Parliament pursuant to the first paragraph of Article K.6, which means, in practice, providing regular information to its Committee on Civil Liberties and Internal Affairs; the form and content of such information must be in keeping with the institutional role incumbent upon the European Parliament,

- the obligation to consult the European Parliament;

- the obligation to take into account the views of the European Parliament,

and calls on the Council and Commission forthwith to resume negotiations with Parliament on the proper implementation of Article K.6;

5. Considers it unacceptable that the Council should add to the Union's democratic deficit by failing to inform the European Parliament in good time of its agenda and the documents before it and calls on the Council to act according to the spirit of the treaties;

6. Considers that the appearance before the Committee on Civil Liberties and Internal Affairs of the President-in-Office of the Council has not been enough to ensure effective parliamentary supervision or transparent, democratic practices in a range of matters directly affecting the fundamental rights of citizens;

7. Once again, criticises the lack of openness in and democratic and judicial supervision of decisions taken at the level of the Council and expresses its concern with regard to respect for individual liberties and guarantees of legal protection for citizens in the areas covered by the third pillar; regrets the greater lack of transparency due to the fact that Council decisions in the fields of justice and home affairs are virtually never published in the Official Journal;

8. Considers it unacceptable that most decisions adopted by the Council were forwarded to it only after their adoption, and urges the Council to change such practice in future;

9. Criticises, once more, the Council's practice of adopting resolutions, recommendations, conclusions and declarations, instruments which are not mentioned under Title VI of the Treaty on European Union and which, moreover, are not published in the Official Journal; considers that, if this practice does not change to one of greater cooperation with the European Parliament, the Council is in fact constructing a 'non-law' area which is unacceptable from the point of view of democracy;

10. Recalls that Title VI of the Treaty on European Union is intended, 'without prejudice to the powers of the European Community' to complement the latter and to contribute to the achievement of the objectives of the Union, and takes the view that the lack of a clear demarcation in law between the respective powers of the first and the third pillar is a source of serious problems and ambiguity;

11. Considers, as it did last year, that steps must be taken to apply Article K.9 of the Treaty on European Union, particularly as regards asylum and immigration, and so calls on the Commission to submit proposals to that end;

12. Considers that, if national vetoes block the transfer of cooperation in the field of justice and home affairs from the third to the first pillar, the Council should be open to other solutions aimed at finding a different legal framework in order to increase cooperation in these issues;

13. Regrets that it was not consulted on the Europol Convention, one of the 'principal aspects of activities' mentioned in the second paragraph of Article K.6 of the EU Treaty, before the Council reached its decision, and that the Presidency failed to take due account of the views of the European Parliament;

14. Regrets that, with reference to Europol, it did not prove possible to reach a decision about the involvement of the Court of Justice, and considers that those Member States which, in Council, refused to give the Court of Justice a role, are excessively timid and would appear to wish to exempt police services from adequate judicial supervision;

15. Reiterates that the challenges facing the European Union, such as providing greater internal security and coping with the growing migratory pressures, must be handled by the Council in a way which preserves the human rights of those living in the European Union, and which does not diminish individual safeguards; any shortcoming exposed must be immediately rectified;

16. Notes that, unless the Commission is given a substantial role, the Council Presidency and the Member States meeting within the Council will have too much room for manoeuvre, thereby enabling them to impede progress in the sphere covered by Title VI and to pursue purely national interests;

17. Calls on the Commission to reorganize the present structure within its Secretariat-General, and the resources committed to it, so that it can be more efficient in providing the European Parliament with information, and more active in the exercise of the right of initiative expressly granted to it in the Treaties and in the drawing up and implementing of the budget;

18. Continues to be anxious at the existence within the Council of permanent structures composed of experts from the Member States (CIREA, CIREFI, etc.), which reinforce the lack of democratic control within the EU and whose work is liable to duplicate that already carried out by the Commission; calls on the Council to change these structures in accordance with its aforementioned resolutions of 21 and 22 September 1995;

19. Deplores the fact that citizens' expectations have been largely disappointed in this sphere, which is so important for individual freedoms and so fundamental to achieving genuine European citizenship;

20. Reiterates its hope that the 1996 Intergovernmental Conference will make the necessary changes to the Treaty in order to rectify these shortcomings;

21. Calls on the Council not to delay strengthening the third pillar, as urgently needed, until the Intergovernmental Conference but to take the necessary action as from now, following an in-depth debate among its members, to determine binding objectives and joint political interests, so as to make progress in implementing the general objectives of the EU Treaty;

22. Reiterates its request that the Council and the Commission should draw up each year, in good time, a detailed report on the decisions taken by the Council and its activities and future initiatives and on the manner in which the Presidency has responded to the views expressed by the European Parliament in the resolution winding up the previous year's annual debate; such a report is vital if the European Parliament is to play an active part in supervising and formulating actions under the third pillar and to ascertain the extent to which its views have been taken into account;

23. Finds it unacceptable that the joint action against racism and xenophobia has not been adopted, and also considers the restrictive interpretation of the concept of refugee to be unacceptable; calls on the Madrid European Council, therefore, to adopt the above-mentioned joint action and interpret the notion of refugee in a manner more in keeping with the idea of protection which is one of the objectives of the Geneva Convention;

24. Calls on the Council to take measures to ensure that the ministries of the interior and of judicial affairs of the Member States cooperate more regularly and efficiently in order to promote common solutions to common problems;

25. Welcomes the cooperation being developed by the Council and Commission with third countries on issues such as serious international crime, drug- trafficking, criminal enterprises and terrorism; points out that to respond to these issues the Union must organize itself better, which includes making provision for proper consultation of the European Parliament under Article K.6;

26 Instructs its President to forward this resolution to the Council, the Commission, the Economic and Social Committee and the governments and parliaments of the Member States.