COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 22.11.1995 
COM(95)566 final 
COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 
ON THE POSSIBLE APPLICATION OF ARTICLE K.9 
OF THE TREATY ON EUROPEAN UNION 

INTRODUCTION 
1. At the request of the European Parliament, the Commission undertook, in the context 
of its 1995 programme, to produce a report on the possible implementation of Article 
K.9 of the Treaty on European Union. This article provides for the possibility of 
applying Article 100C EC Treaty to action in six of the nine areas referred to in 
Article K. 1, thereby transferring some competences from the area of Cooperation in 
the fields of Justice and Home Affairs, governed by Title VI of the TEU ("the Third 
Pillar"), to the Community. The implementation of Article K.9 requires a unanimous 
decision of the Council, on the initiative of the Commission or a Member State, and 
the adoption of that decision by all Member States according to their respective 
constitutional requirements. 
2. The Council has already examined this question once. 
The declaration on asylum attached to the Final Act of the Treaty required it to do so, 
with particular and exclusive reference to asylum policy, "by the end of 1993" which 
meant, in practice, within two months of the entry into force of the Treaty. 
That first examination was based on a report provided by the Commission (doc. 
SEC(93)1687 of 4 November 1993) drawing attention to the several advantages which 
it could be assumed would flow, in terms of effective decision-making, transparency 
and legal certainty, from transferring asylum policy to the Community "pillar" of the 
Treaty. The Commission's report suggested, however, that it probably would not make 
sense to think in terms of triggering the potentially long drawn-out procedures inherent 
in Article K.9 immediately after the entry into force of the Treaty and before the 
newly introduced provisions of Title VI had been given the chance to show what they 
could produce. The Council, in its conclusions of 20 June 1994, endorsed the 
Commission's approach and agreed that it might be advisable to reconsider this matter 
at a later date, in the light of experience, by the end of 1995 at the latest. 
3. Unlike in the case of its first report, the Commission can now base this second report 
not only on theoretical considerations but also on two years practical experience of 
living with the provisions of the "Third Pillar" as a way of pursuing cooperation in the 
fields of justice and home affairs. For convenience the report is divided into two 
chapters : 
- the objective underlying Article K.9 
- the appropriateness of looking to Article K.9 as the best instrument for 
attaining that objective. 
THE OBJECTIVE OF ARTICLE K.9 
4. The objective of the article is clear. It is to transfer certain questions from the "Third 
Pillar" to the Community "Pillar" - and not only to the Community "Pillar" in general, 
but to the particular Article 100C which has a number of specific characteristics : 
- it is clearly situated in the chapter of the Treaty which deals in general 
with the approximation of laws with a view to facilitating the 
functioning of the common market, and in particular with the 
establishment of the internal market, defined as an area without internal 
frontiers; 
- although initially requiring decision-making by unanimity, it provides 
for the possibility of a transfer to qualified majority voting after a 
certain period. It should be noted however that Article K.9 specifies 
that such a transfer should not be automatic, but would require a 
determination to that effect in the Article K.9 decision itself, in other 
words by unanimity; 
- although conferring on the Commission the exclusive right of initiative 
which characterises the whole of the Community "Pillar", it also 
requires the Commission to examine any request from Member States 
that it submit a proposal to the Council; 
- while bringing the European Parliament systematically into the 
decision-making process, it does so under the least complete formula, 
i.e. that of simple consultation. 
5. These characteristics would make it seem at least partially suited to addressing the 
obstacles to progress in the "Third Pillar" to which attention has been drawn by 
numerous commentators, including in the separate reports on the implementation of 
the TEU submitted by the Parliament, the Council and the Commission. In their 
different ways, these commentators have highlighted the following problems : 
a) the slowness of the decision-making process with the omnipresent requirement 
for unanimity in the Council followed, in the case of "Third Pillar" 
Conventions, by the need for ratifications in all Member States; 
b) the continued lack of transparency of the Council's work in this area which can 
in part be attributed to the reluctance of the Council to make known to the 
Parliament the proposals on which it is working until they are ready for 
adoption or even already adopted; 
c) the absence of legal certainty which only the Court of Justice can provide. 
The faculty to give the Court of Justice competence in Title VI has resulted in 
repeated blockages of all the relevant major conventions currently under 
negotiation. Furthermore, the absence of clear views on the scope of the legal 
instruments, i.e. joint actions and joint positions, provided for by Article K.3, 
and the fact that the Commission has no role to play as guardian of the Treaty 
in this area, do not contribute to legal certainty; 
d) the absence also of any clearly defined objectives to which the catalogue of 
areas for cooperation listed in Article K.l can relate. 
To a considerable extent, a transfer to Article 100C could eliminate these obstacles. 
It would at a stroke deal with the question of the involvement of the European Court 
of Justice and introduce obligatory consultation of the European Parliament (albeit in 
its least advanced form). By situating the areas of cooperation firmly in the context 
of the approximation of laws in the common market and in particular in the context 
of establishing the internal market, it would provide framework objectives currently 
missing in Title VI. By moving to article 100C and opening the possibility, provided 
the Council so decides, of introducing qualified majority voting, decision-making 
could be facilitated and encouraged. 
IS ARTICLE K.9 THE MOST APPROPRIATE INSTRUMENT? 
7. This report has been requested before the end of 1995, in other words just before 
the opening of the 1996 Intergovernmental Conference. 
Although Title VI is not specifically mentioned in the Treaty among the areas which 
will have to be revisited in 1996, it seems nevertheless that, according to the fifth 
indent of Article B of the Treaty, the Conference will need to address institutional and 
practical questions related to the functioning of cooperation in the fields of justice and 
home affairs. That certainly appears to be the thrust of the discussions so far in the 
Reflexion Group set up by the Essen European Council. Any examination of the 
"Third Pillar" in the context of the I.G.C. is in turn bound to address the question of 
its possible "communitarisation", either total or partial. 
8. For its part, the Commission has made public its clear conviction that 
"communitarisation" of 7 of the 9 areas listed in Article K. 1 is the right solution for 
all the reasons mentioned above. Police cooperation and judicial cooperation in 
criminal matters represent the two exceptions. All the other areas, with their close 
interface with work done under the Community "Pillar", in particular with the 
objective of the free movement of persons, would benefit greatly from the early 
application of the Community method of decision-taking and the full and automatic 
involvement of the Community institutions. While accepting that police cooperation 
and judicial cooperation in penal matters are regarded by the Member States as too 
close to national sovereignty to be transferred in the short term to the Community 
"Pillar", the Commission nevertheless believes that a greater involvement of the 
institutions in these areas too should be sought at the I.G.C. 
9. This then is the position which the Commission is committed to defending in the 
I.G.C. Its objective corresponds closely with the one underlying the raison d'être of 
Article K.9. The immediate question is, therefore, whether that objective would be 
helped or hindered by the early tabling of a K.9 initiative. This question should be 
examined bearing in mind the weaknesses of this provision which has not yet been 
enacted. Indeed as the Commission stated in its "Report on the Operation of the Treaty 
on European Union" (doc. SEC(95)731 final of 10 May 1995), "the procedure laid 
down is cumbersome: it requires the Member States' unanimous approval and 
ratification in accordance with their respective national constitutional provisions". In 
one Member State this means that a national referendum will inevitably be triggered 
if Article K.9 is invoked. 
10. Against that background, the Commission has concluded that the objective, which it 
shares with the Parliament, of "communitarisation" of major aspects of the Third Pillar 
would best and most effectively be pursued in the context of the Intergovernmental 
Conference rather than through an Article K.9 initiative. Without prejudice to the 
possibility of turning to Article K.9 at some future date if the circumstances warrant 
it, the Commission's reasoning is based on the following considerations: 
(a) the coincidence of timing between this report and the imminence of the 
opening of the Intergovernmental Conference means that any Article K.9 
initiative taken in the Council now would soon be running in parallel with an 
examination of the same or similar questions in the I.G.C. itself. The 
Commission does not believe that there is room for such duplication, and that 
one forum is bound quickly to crowd out the other; 
(b) faced with the choice, the Commission believes that the I.G.C. offers the more 
promising route. Not only does it provide a wider context, it also need not be 
bound by the limitations inherent in Article 100C to which attention is drawn 
above. It would be possible in the I.G.C. context to argue in favour of: 
- the involvement of the European Parliament going beyond simple 
consultation; 
- transfer to the Community "Pillar" of more than the six areas 
mentioned in Article K.9; 
- the introduction of qualified majority voting for certain aspects without 
the need for a separate unanimous decision to that effect by the Council 
at a later date; 
(c) it would reinforce the case for a fundamental review of the Third Pillar in the 
I.G.C, rather than crediting, by the tabling of a K.9 initiative, the idea that the 
provisions of Title VI are already sufficient on the grounds that they provide 
an adequate mechanism for "communitarisation". 
11. On balance, the Commission therefore believes that the wiser and more 
productive course would be to press the case for "communitarisation" in the 
context of the I.G.C, without first tabling a potentially distracting proposal 
based on Article K.9. 
ISSN (054-1475 
COM(95) 566 final 
DOCUMENTS 
EN 01 
Catalogue number : CB-CO-95-634-EN-C 
ISBN 92-77-96676-9 
Office for Official Publications of the European Communities 
L-2985 Luxembourg 
d