B4-1333/96

Resolution on the progress made in 1996 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 Treaty on European Union,

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

- having regard to its resolutions of 13 December 1994 and 14 December 1995 on the progress made in 1994 and 1995 respectively 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 and OJ C 17 , 22.1.1996, p. 179.)),

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

B. whereas the experience gained in this third year of cooperation in the fields of justice and home affairs has once more clearly shown its shortcomings, which have been repeatedly criticized by the European Parliament and highlighted by each of the Institutions of the European Union and by the Reflection Group in preparation for the IGC,

C. whereas the manifest weakness of the third pillar still derives from:

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

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

- 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 joint actions are binding, and to cumbersome and complex conventions, especially as regards their ratification,

- the restrictive approach taken to intergovernmental cooperation as laid down in Title VI of the Treaty on European Union by certain Member States and their desire to perpetuate the intergovernmental practices from the pre-Treaty period,

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

- the lack of effective parliamentary control by the European Parliament and the national parliaments,

- 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,

- the reluctance of the Council to apply Article K.6 in the spirit of the Treaty,

- the lack of effective financial control, given that the Council may, under Article K.8(2), first and second indents, either decide unanimously that expenditure is to be charged to the EC budget or determine that such expenditure shall be charged to the Member States, which means that, in practice, the number of activities coming under the third pillar and financed from the EC budget has been very limited,

D. whereas conventions and other Council decisions which are interpreted differently in the various Member States call the rule of law into question, and whereas it is in the interest of democratic Member States to have a common interpretation of these conventions and other texts in order to arrive at common basic principles,

E. whereas the Presidency and the Commission should regularly inform the European Parliament of work in this area, pursuant to the first paragraph of Article K.6 of the Treaty on European Union, and whereas the Presidency should 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 that Treaty,

F. whereas the Presidency has been cooperative throughout 1996, and whereas attention should be drawn to those instances in 1996 where the Presidency specifically asked for the opinion of the European Parliament before a final decision was taken, particularly in the following cases:

- the draft protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, to the Convention on the Protection of the European Communities' financial interests (C4-0607/95 - 12549/95 - 96/0902 (CNS)) on corruption of officials and Members ((Opinion of the European Parliament: OJ C 166, 10.6.1996, p.102.)),

- the draft second Protocol, drawn up on the basis of Article K. 3 of the Treaty on European Union, to supplement the Convention on the Protection of the European Communities' financial interests (C4-0137/96 - 7752/96 - 95/0360 (CNS)), on the liability of legal persons and on money- laundering ((Opinion of the European Parliament: minutes of the sitting of 24 October 1996, Part II, Item 7.)),

- the draft convention on the fight against corruption of officials of the European Communities or officials of Member States of the European Union (C4-0561/96 - 7751/96) ((Resolution of the European Parliament: Minutes of the Sitting of 15 November 1996, Part II, Item 6.)),

but also to the fact that such consultation did not take place in the majority of cases,

G. whereas the Presidency should:

- provide written information to Parliament's Committee on Civil Liberties and Internal Affairs at the beginning of each Presidency,

- hold a discussion with the members of that committee before each meeting of the Council (even before informal meetings of the Council),

- forward every draft decision (joint action, resolution, convention, etc.) to the European Parliament with a request for its opinion,

- ensure that the Council takes account of the European Parliament's opinion when it is reaching its decisions,

- after a Council has been held, inform the Committee on Civil Liberties and Internal Affairs of its outcome and the response to the opinions delivered by the European Parliament,

H. whereas the resolution establishing the priorities for cooperation in the field of justice and home affairs for the period 1 July 1996 - 30 June 1998: - was adopted by the Council without consulting the European Parliament,

- shows how many urgent matters are outstanding,

- sets no priorities among the 37 topics (and the many sub-topics) referred to therein,

I. whereas the Council has not contemplated using Article K.9 to bring parts of the topics referred to in Article K.1 within the ambit of the Community,

J. whereas third pillar practices reveal a constant increase in the democratic deficit as the Council has acquired the habit of reaching decisions on the basis of drafts drawn up by officials from the national ministries of justice and home affairs, without prior consultation of the European Parliament and without the national parliaments having any opportunity to amend the agreements drawn up by those officials,

K. whereas, in addition to an improvement in the Council's working mechanisms, cooperation with the other Community institutions as laid down in the EU Treaty is already possible without amending the provisions of the said Treaty, and whereas the IGC should not be used as a pretext for inactivity in 1997 pending changes to the EC Treaty,

L. whereas, with a view to the IGC, the European Parliament has already submitted its proposals for improving the implementation of Title VI of the Treaty on European Union and demonstrated its commitment to an ambitious reform of cooperation in the fields of justice and home affairs, in particular by proposing that some fields should be immediately brought within the Community ambit and that more binding provisions be incorporated into the Treaty, honouring more scrupulously the principles of law and democracy with regard to those areas which continue to be covered by cooperation under the third pillar,

M. whereas in 1996 the Council took the following decisions under the third pillar,

1. Instruments provided for in Article K.3 of the Treaty on European Union:

- Joint Position defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonized application of the definition of the term 'refugee' in Article 1 of the Geneva Convention ((OJ L 63, 13.3.1996, p. 2.)),

- Joint Action adopted by the Council on the basis of Article K.3 of the Treaty on European Union on airport transit arrangements ((OJ L 63, 13.3.1996, p. 8.)),

- Joint Action concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union ((OJ L 105, 27.4.1996, p. 1.)),

- Joint Action adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning action to combat racism and xenophobia ((OJ L 185, 24.7.1996, p. 5.)),

- Council Act establishing a Protocol to the Convention on the Protection of the European Communities' financial interests ((Press releases 10259/96 (Presse 247) and 10261/96 (Presse 249).)), signed in Dublin on 27 September 1996,

- Convention governing extradition between Member States of the European Union ((Press releases 10259/96 (Presse 247) and 10262/96 (Presse 250).)), signed in Dublin on 27 September 1996,

- three protocols concerning preliminary rulings by the Court of Justice of the European Communities ((-concerning Europol (23 July 2996), - concerning the Convention on the Protection of the European Communities' financial interests (29 November 1996), -concerning the use of computer technology in the customs sphere (29 November 1996).)),

- Joint action adopted by the Council on the basis of Article K.3 of the Treaty on European Union providing for a common framework for the initiatives of the Member States concerning liaison officers ((OJ L 268, 19.10.1996.)),

- Joint action adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the creation and maintenance of a Directory of specialized counter-terrorist competences, skills and expertise to facilitate counter-terrorist cooperation between the Member States of the European Union ((OJ L 273, 25.10.1996.)),

- Joint Action adopted by the Council on the basis of Article K.3 of the Treaty on European Union establishing a programme of encouragement and exchanges for legal specialists (GROTIUS) ((Adopted on 28 October 1996.)),

- Joint action adopted by the Council on the basis of Article K.3 of the Treaty on European Union establishing a programme of training, exchanges and cooperation in the field of identity documents (SHERLOCK) ((Adopted on 28 October 1996.)),

- Joint Position defined by the Council on the basis of Article K.3(2)(a) of the Treaty on European Union on pre-frontier assistance and training assignments ((OJ L 281, 31.10.1996.)),

- Joint Action on cooperation between customs authorities and business organizations relating to the fight against drugs ((Docs 10324/96 ENFOCUSTOM 39 - 10142/96 ENFOCUSTOM 36 + REV 1 (fi).)),

- Joint Action concerning the creation and maintenance of a Directory of specialized competences, skills and expertise relating to the fight against international organized crime, to facilitate cooperation between the Member States of the European Union in the application of the law ((Docs 1103/96 CK 43 - 10810/96 CK 39.)),

- Joint action on the exchange of information on the determination of the chemical characteristics of drugs to improve cooperation between the Member States in combating drug-trafficking ((Docs 11259/96 ENFOPOL 177 - 11100/96 ENFOPOL 174.)),

- Joint action establishing a programme of encouragement and exchanges for persons responsible in the fight against trafficking in human beings and sexual exploitation of children ((Docs 11148/96 CK 49 - 11341/96 CK4 51.)),

- Joint action on a uniform format for residence permits (political agreement),

- Joint action to combat trafficking in human beings and sexual exploitation of children (political agreement),

- Joint action concerning the approximation of the laws and practices of the Member States with a view to combating drug abuse and to prevent and combat drug-trafficking (political agreement),

2. Instruments not provided for in Article K.3 of the Treaty on European Union:

- Council Decision on an alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis ((OJ L 63, 13.3.1996, p. 10.)),

- Council recommendation relating to local consular cooperation regarding visas ((OJ C 80, 18.3.1996, p. 1.)),

- Council resolution on the status of third-country nationals residing on a long-term basis in the territory of the Member States ((OJ C 80, 18.3.1996, p. 2.)),

- conclusions of the Council concerning the readmission clauses to be incorporated in future joint agreements ((Press release 5309/96 (Presse 45), pp. II and III.)),

- Report on a customs strategy at the external frontiers ((Press release 5727/96 (Presse 63).)),

- Council Recommendation (96/C 131/01) on guidelines for preventing and restraining disorder connected with football matches ((OJ C 131, 3.5.1996, p. 1.)),

- publication of acts and other texts adopted in the field of asylum and immigration ((OJ C 274, 19.9.1996.)),

- Council Recommendation on combating the illegal employment of third- country nationals ((Press release 10259/96 (Presse 247), pp. IV, V and VI.)),

- Resolution on the establishment of agreements between the police and customs services relating to the fight against drugs ((Docs 11004/96 ENFOPOL 168 ENFOCUSTOM 48 - 10782/96 ENFOPOL 160 ENFOCUSTOM 46.)),

- system of indicators concerning the pureness of drugs ((Docs 11274/96 ENFOPOL 178-10466/1/96 ENFOPOL 152 rev.1)),

- Council resolution relating to the measures to be taken to combat drug tourism within the European Union ((Docs 12047/96 ENFOPOL 202 - 11879/96 ENFOPOL 196.)),

N. whereas the progress achieved by the Council in cooperation in the field of justice and home affairs has not met citizens' expectations, and whereas the Council, which alone decides in this field, bears the sole responsibility for this fact,

In general

1. Notes that the implementation of cooperation in the fields of justice and home affairs still faces the same problems and shortcomings as those described in its resolutions of 13 December 1994 and 14 December 1995 and that no action has been taken on the recommendations and opinions expressed by the European Parliament;

2. Notes that the need for unanimity meant that decisions taken in the Council on the third pillar were particularly affected by the policy of non- cooperation of the United Kingdom which committed an unacceptable act of blackmail in obstructing decisions which had nothing at all to do with the problem of BSE; notes, however, that all the measures blocked at the Council meeting of 5 and 6 June 1996 were subsequently adopted;

3. Notes nonetheless that, when the political will exists, the Council is capable of taking speedy decisions, as it demonstrated in the case of the campaign against trafficking in human beings and the sexual exploitation of children;

4. Regrets, as regards the campaign against drug trafficking, which is an area where a large number of decisions have recently been adopted or are on the point of being adopted, that only some of those actions form part of the global approach defined by the Commission and do not take into account the wishes of the European Parliament set out in its resolution of 15 June 1995 on the communication from the Commission to the Council and the European Parliament on a European Union action plan to combat drugs (1995 to 1999) (COM(94)0234 - C4-0107/94) ((OJ C 166, 3.7.1995, p. 116.));

5. Deplores, further, that the European Drugs and Drug-Abuse Observatory in Lisbon has not been asked to cooperate in the work of the Council in this area;

6. Notes that there has been progress in 1996 towards forms of decision laid down in Article K.3;

7. Nevertheless criticizes once more the Council's practice of adopting resolutions, recommendations, conclusions and declarations, instruments which are not referred to in Title VI of the Treaty on European Union and which, moreover, are not published in the Official Journal and other types of decision, in particular the budget for the Europol Drugs Unit; considers that, if this practice does not change to one of greater cooperation with the European Parliament and Commission, the Council is in fact constructing a 'non-law' area which is unacceptable from the point of view of democracy;

8. Also criticizes the lack of transparency resulting from the Council's practice of holding 'informal' meetings at which decisions are taken, away from its seat, after which no press release is issued; instead, formal decisions are recorded in the press releases of other councils, while political agreements on important subjects (such as extending the remit of the Europol Drugs Unit) are not officially communicated;

9. Deplores the fact that the Council has given its agreement to implementing measures, internal rules and other implementing measures concerning Europol which, having been drawn up by national officials, have remained secret; notes that, once the Europol Convention is ratified, the European Parliament, the national parliaments and the general public will be confronted with a plethora of decisions that have already been taken;

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 attainment of the objectives of the Union; takes the view that the difficulties encountered in respect of freedom of movement and the actions brought before the Court of Justice by the Commission and Parliament against two Council decisions on visas demonstrate that the Council is yielding to pressure from certain Member States who do not wish to cooperate under the first pillar;

11. Reaffirms that the free movement of persons includes third-country nationals legally residing on Union territory, as confirmed by the Presidency-in- Office of the Council before the Committee on Civil Liberties and Internal Affairs, and that attaining freedom of movement is a matter for the first pillar ((Meeting of the Committee on Civil Liberties and Internal Affairs of 25 September 1996.));

12. Regrets the Irish Presidency's initiative (joint action on travel by third- country nationals resident in a Member State) at a time when the European Parliament was considering the three Commission proposals on freedom of movement within the European Union; notes the Presidency's statement to the effect that this initiative is not intended to compete with those of the Commission, but considers that priority ought to be given to Community proposals;

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

14. Considers that the Community's financial interests should be protected by Community instruments (regulations and directives) and regrets that the Council has chosen the form of conventions and protocols, instruments with very long ratification procedures, which impair their effectiveness;

15. Regrets the lack of any significant progress in the fields of immigration and asylum; calls on the Council to make use of the instruments provided for in the Treaty with a view to developing, in strict conformity with the 1950 European Convention on Human Rights and the 1951 Convention on the Status of Refugees, a genuine common policy in these areas, paying particular attention to the situation of refugees and displaced persons; calls on the Commission, with this in mind, to make full use of its right to propose legislation, with particular regard to the proposals set out in its work programme for 1996 on which no action has as yet been taken;

16. Deplores the fact that, in connection with the Council's work programme for the period from 1996 to 1998, it has neither been informed nor consulted on this draft resolution, as it should have been pursuant to Article K.6, and considers that the Council has established no genuine priority but has contented itself with drawing up a summary of the large number of areas where working parties negotiate, thereby running the risk that the essential areas for cooperation will not receive the requisite attention;

17. Calls upon the Council to improve the substance and presentation of its annual report, in particular by setting out progress in:

(i) ratification of all Conventions and the implementation of those and other binding instruments adopted under Article K.3,

(ii) implementation of the work programme,

(iii) application of Article K.6;

18. Considers that the Commission has been too passive in failing to make adequate use of the right to propose legislation granted to it under the Treaty, particularly in the area of asylum policy, where it has left the initiative to the Council, and deplores the fact that not one of the proposals in the Commission's 1996 Work Programme ((Joint action on temporary protection of displaced persons, a convention on the admission of third-country nationals, a convention on the harmonization of national procedures for granting asylum and a plan of action on the fight against drugs and the prevention of urban violence.)) has been forwarded to it;

19. Calls on the Commission to use all the prerogatives it currently has at its disposal, devoting to that end all the requisite human resources, bearing in mind in particular the significant increase in appropriations that the European Parliament intends to devote to the promotion of the policies referred to in this resolution;

20. Calls on the Commission to take without delay initiatives aimed at regulating the implementation of the budget regarding the right of asylum, immigration, the campaign against drug addiction and the fields of justice and home affairs, while respecting the procedures set out in the EU Treaty, and to submit its proposals to the European Parliament and the Council;

21. Is willing to give its support to the Commission provided that the Commission becomes more active in defending Community powers, particularly in the field of protection the financial interests of the Communities, the measures required to complete the provisions governing the free movement of persons, customs checks at external borders and the visa policy provided for in Article 100c;

22. Supports the conclusions of the Conferences of Vienna (Conference on trafficking in women) of 10 and 11 June 1996 and Stockholm (World Congress against the sexual exploitation of children for commercial purposes) of 27, 28, 29, 30 and 31 August 1996 and calls on the Council and the Commission to pursue with determination their initial responses to the scourges of trafficking and exploitation of human beings;

23. Welcomes the cooperation with third countries established by the Council and Commission on issues such as serious international crime, drug-trafficking, trafficking in human beings, criminal and terrorist acts, and points out that, if it is to respond to solve these problems, the Union must become better organized, with provision being made, in particular, for proper consultation of the European Parliament on these initiatives;

24. Calls for the Union's efforts in its fight against drug-trafficking to be pursued in the context of the global approach set out in the Commission's 1994 communication and reaffirmed by the Cannes European Council;

Preparations for the IGC

25. Notes that the demonstrable malfunctioning of the third pillar lends extra weight to the proposals it made in its resolution of 13 March 1996 ((OJ C 96, 1.4.1996, p. 77.)) on the IGC;

26. Insists that the right of asylum and the field of immigration be brought within the ambit of the Community;

27. Considers that matters pertaining to the crossing of the external borders, policy towards third- country nationals, action to combat drug-trafficking, the trafficking in human beings, international fraud and organized crime and to judicial cooperation in civil matters where it relates to the free movement of persons must be brought within the Community ambit ((See PE 197.390, paragraph 5. ));

28. Hopes that the IGC will provide the occasion for the combination - in one single legal basis firmly enshrined in the first pillar - of the various provisions on which the Union's campaign against drug-trafficking is based;

29. Believes that it is not enough to transfer powers to the first pillar without also:

- reducing the areas covered by unanimity,

- drawing up political and legal objectives,

- setting deadlines for achieving those objectives as in Article 100c of the EC Treaty, for example,

- creating a new legal instrument for matters which still fall within the scope of the third pillar, with a force equivalent to that of a directive in the Community legal system;

30. Reiterates its wish to see cooperation stepped up in other fields which still fall within Title VI of the Treaty on European Union, including the following:

- recognition of the jurisdiction of the Court of Justice of the European Communities,

- increased use of qualified majority voting,

- improvement in transparency and the right of access to information,

- abandonment of the frequent use of legal instruments for which there is no provision in the Treaty on European Union,

- more flexible application of Article K.9,

- a guarantee of better protection of citizens' rights by means of effective democratic control by the European Parliament and national parliaments;

31. Intends to demonstrate clearly, in its information campaigns aimed at the citizens of the Member States, that cooperation under the third pillar affects the fundamental rights and liberties of the individual and that, 7within the context of such cooperation, the representatives of the citizens of Europe and the Court of Justice of the European Communities must be given a significant role to play;

32. Considers that the approach suggested by the Irish Presidency, namely that the field of justice and home affairs should be discussed at the IGC, is a step in the right direction but is disturbed, however, at the slow pace and poor quality of the practical progress achieved so far; looks to the IGC to provide practical results and considers it unacceptable that the opposition of a single Member State or a small minority of Member States should be able to hold up the IGC's progress on justice and home affairs, thereby hampering the European Union's progress towards becoming 'an area of freedom, security, justice and the rule of law' which the citizens of Europe have a right to expect;

33. 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.