Communication from the Commission - Towards an area of freedom, security and justice
Date: 1998-07-14
Institutions: European Commission
Subjects: European integration, citizens' Europe, deepening of the European Union, fundamental rights, intergovernmental cooperation (EU)

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 
the  main 
excessive  use  of  non-binding  instruments  or  the  failure  to  ratify 
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 
imperfections  of  the  existing  Community 
framework.  An  initial  outline  of  these  priorities  is given  in  the  section  "Priorities" 
below. 

it  was  hampered  by 

the 

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 
in  the  future  Title  VI  will  apply.  The  Commission 
whole  of  Schengen  acquis 
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  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. 

in  order 

to  put 

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. 

2. 

3. 

4. 

5. 

bring  into  line with  the  new  Treaty  the proposals  already  on  the table  but  not 
adopted before  Amsterdam; 

ensure  consistency  with  instruments  already  in  force,  by  proposing  initiatives 
to develop and/or extend the acquis (e.g. in the area of visas); 

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; 

check  to  what  extent  a  law-enforcement  aspect  needs  to  be  prepared  for  the 
existing Community policies; 

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 

Office  for Official  Publications of the European  Communities 

L-2985 Luxembourg