Resolution on the draft action plan of the Council and Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice (13844/98 - C4-0692/98 98/0923(CNS))
Date: 1999-04-13
Institutions: Committee on Civil Liberties, Justice and Home Affairs, European Parliament
Subjects: European integration, access to the courts, citizens' Europe, deepening of the European Union, democracy, intergovernmental cooperation (EU), short-term economic policy

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−  having regard to Rule 58 of its Rules of Procedure,

−  having regard to the report of the Committee on Economic and Monetary Affairs and Industrial Policy

(A4-0170/99),

1.

Approves the Commission proposal, subject to Parliament’s amendments;

Calls on the Commission to alter its proposal accordingly, pursuant to Article 189a(2) of the EC

2.
Treaty;

Calls on the Council to incorporate Parliament’s amendments in the common position that it adopts

3.
in accordance with Article 189b(2) of the EC Treaty;

Points out that the Commission is required to submit to Parliament any modification it may intend to

4.
make to its proposal as amended by Parliament;

5.

Instructs its President to forward this opinion to the Council and Commission.

20. An area of freedom, security and justice − Combating child pornography on

the Internet

*

(a)  A4-0133/99

Resolution on the draft action plan of the Council and Commission on how best to implement the
provisions  of  the  Treaty  of  Amsterdam  on  an  area  of  freedom,  security  and  justice  (13844/98  −
C4-0692/98 − 98/0923(CNS))

The European Parliament,

−  having regard to the draft action plan of the Council and Commission (13844/98 − C4-0692/98 −

98/0923(CNS)) submitted to the Vienna European Council of 11/12 December 1998,

−  having regard to the Commission communication ‘Towards an area of freedom, security and justice’

(COM(98) 0459 − C4-0551/98),

−  having regard to the Declaration of the European Union of 10 December 1998 on fundamental rights,

−  having regard to the report of the Committee on Civil Liberties and Internal Affairs and the opinions
of the Committee on Institutional Affairs and the Committee on Legal Affairs and Citizens’ Rights
(A4-0133/99),

A.  mindful  of  the  considerable  political,  economic  and  social  developments  in  Europe  in  the  last  ten
years, and of the increased attractiveness of the European Union to various countries in the continent
and neighbouring areas as a model for cohabitation between nations with different traditions and as an
area without economic borders,

B.  aware  of  both  the  advantages  and  disadvantages  which  can  accrue  from  an  association  between
countries  with  cultures  and  social,  political  and  legal  systems  which,  while  they  share  a  common
background  and  principles,  display  marked  differences  but  which  must  nonetheless  meet  the
increasing demand of civil society for greater fairness, justice and comparable conditions of security
and judicial protection,

C.  aware, in the light of such large-scale processes affecting the whole continent, of the limits to strictly
national responses, and the problems encountered by the Member States of the Union in coping with
their human, social and economic impact while in the process maintaining reference points which
have been found to be essential to citizens and to European public opinion in general,

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D.  aware  that  organised  crime  is  taking  advantage  of  the  absence  of  or  failure  to  apply  European
legislation in fields such as immigration, asylum and civil and criminal judicial cooperation and of the
compartmentalisation of the national judicial systems, which outrages public opinion and is causing
national authorities to lose credibility in the eyes of the European public and giving rise to costs which
are not only financial but human and political,

E.  aware of the limitations inherent in the intergovernmental approach tried under the third pillar of the
Union Treaty, which are responsible for the fragmentary character of many measures, agreements and
acts of whatever nature which have been adopted or are being negotiated, a deficiency which applies
to both their nature and their implementation; anticipating that these measures will be enhanced as a
result of the entry into force of the Amsterdam Treaty, which will result in a fresh impetus enabling
citizens, together, to reap the benefits of their democratic tradition,

F.  believing that mutual confidence must be strengthened between the European and national institutions

and between them and the European public,

G.  whereas the legitimate demand for security by those residing within the Union cannot be dissociated
from the objective of justice, which is one of the hallmarks of the European Union; whereas, therefore,
in  order  to  be  effective,  police  action  must  be  accompanied  by  the  development  of  judicial
cooperation and whereas such cooperation, in turn, is possible only if national crime prevention and
crime-fighting policies are coordinated as often as possible at European level,

H.  noting that the Fifteen finally decided, by means of the Treaty of Amsterdam, to tackle the root of the
problems by making constitutional changes; whereas, by means of these provisions, the Union is on
the one hand responding to the demands of certain constitutional courts as to its capacity to ensure
respect for fundamental rights according to the principle of the rule of law and on the other confirming
its mission to act alongside the Member States in affirming not only economic but also political and
civil principles; noting that this applies in particular to the following provisions:

−  Article B of the Treaty on European Union (future Article 2 of the Treaty on European Union)
which makes one of the objectives of the Treaty ‘... to maintain and develop the Union as an area
of freedom, security and justice ...’ and which is amplified in Article 73i (future Article 61) of the
EC Treaty for the first pillar and Article K.1 (future Article 29) of the Treaty on European Union
for the third pillar,

−  Article F (future Article 6) of the Treaty on European Union, which provides that ‘the Union is
founded  on  the  principles  of  liberty,  democracy,  respect  for  human  rights  and  fundamental
freedoms, and the rule of law, principles which are common to the Member States’, and Article 6a
(future  Article  13)  of  the  EC  Treaty,  which  enables  the  Community,  inter  alia,  to  take  action
‘to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or
sexual orientation’,

−  Article F.1. (future Article 7) of the Treaty on European Union which provides that respect for
fundamental rights is not only a prior condition for membership of the Union but also an absolute
requirement for the exercise of the Member States’ rights,

−  Article L (future Article 46) of the Treaty on European Union, which defines the jurisdiction of
the  Court  of  Justice  with  regard  to  fundamental  rights  and  police  and  judicial  cooperation  in
criminal matters,

−  Title IIIa (future Title IV) of the EC Treaty, which governs the free movement of persons, and
Title  V  (future  Title  VI)  of  the  Treaty  on  European  Union,  which  governs  police  and  judicial
cooperation in criminal matters,

−  Article 117 (future Article 136) of the EC Treaty, which refers to the fundamental social rights set
out  in  the  Turin  European  Social  Charter  (1961)  and  the  1989  Community  Charter  of  the
fundamental social rights of workers and which thus provides a legal basis for European Union
action against exclusion,

I.  whereas the implementation of the future Title IV of the Treaty, on the establishment of an area of
freedom,  security  and  justice,  requires  that  the  Schengen  acquis  be  incorporated  beforehand,  as
provided for in a Protocol annexed to the Treaty,

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J.  believing that after the establishment of the internal market, the single currency and the basis for a
social Europe, one of the prime objectives of the Union must now be the establishment of an area of
freedom, security and justice; this must be based on the principle that the free movement of persons
and cooperation in fighting crime, by their nature, endanger the fundamental rights of the individual
as regards both the policies envisaged and the action taken,

K.  believing that the establishment of this area of freedom, security and justice is urgently demanded by
European  public  opinion  (by  every  resident  of  the  European  Union),  that  its  consolidation  is
intimately linked to the development of real − and not merely theoretical − European citizenship, and
that  it  constitutes  the  only  possible  outcome  of  the  internal  market  within  which  persons,  goods,
capital and services freely move,

L.  noting  the  conclusions  of  the  Vienna  European  Council  and  the  decision  to  hold  an  extraordinary

part-session in autumn 1999 set aside for freedom, security and justice,

M.  having regard to the positive outcome of and the remarks formulated during the Interparliamentary
Conference organised by Parliament’s Committee on Civil Liberties and Internal Affairs on 24 and 25
March 1999,

I.  A more positive definition of fundamental rights and European citizenship, and action against any

form of discrimination

1.
Approves fully the decision by the European Council to hold an extraordinary session in Tampere on
14  October  1999  to  debate  the  establishment  of  the  European  area  of  freedom,  security  and  justice;
considers it to be of fundamental importance that the Heads of State and of Government, the newly elected
European Parliament and the national parliaments draw up a common strategy on:

−  European citizenship and the fundamental rights of persons living in the Union,

− 

full  attainment  of  free  movement  of  persons  pursuant  to  Article  7a  (future  Article  14)  of  the  EC
Treaty,

− 

immigration and asylum,

−  mutual recognition of civil and criminal sentences,

−  administrative,  judicial,  customs  and  police  cooperation  and  upgrading  the  role  of  Community

agencies such as Europol;

declares its readiness, as of now, to participate in the definition of this strategy in collaboration with the
high-level group responsible for preparing the Tampere conclusions, promoting, together with national
parliaments, appropriate participation by civil society;

2.
States that respect for fundamental rights must not merely be a criterion for assessing the legitimacy
of Community action but should also be the hallmark of the European Union; considers, in view of the
plethora of sources governing the scope of these rights, that the decision by the Presidency of the Council
to draw up a Charter of fundamental rights should be analysed with the greatest interest and in particular
that  the  added  value  which  it  would  represent  in  comparison  with  the  existing  situation  should  be
ascertained;

3.
Believes that this initiative should be supplementary to and amplify the European Convention on
Human Rights and Fundamental Freedoms (ECHR) and the other international instruments adopted or
being negotiated to which the Member States are or intend to be signatory, and that it should be linked with
other legislative acts relating to each of the rights in question and become the point of reference for the
work of the Court of Justice, which, in the absence of such legislation, has often had to assume the role of
legislator in the past;

Considers that the future ‘Charter’ to be drawn up in cooperation with the European Parliament (1),
4.
national parliaments and the Court of Justice should take as its basis the ECHR and the case law of the
European Court of Human Rights and establish as high as possible a level of protection of rights as derived
from the constitutional traditions common to the Member States;

(1)  The following should, in particular, be taken into account: Declaration on fundamental rights and freedoms of 12.4.1989 (OJ C 120,
16.5.1989, p. 51) and resolutions of 14.6.1991 on Union citizenship (OJ C 183, 15.7.1991, p. 473) of 21.11.1991 on Community
citizenship (OJ C 326, 16.12.1991, p. 205) and on the Constitution of the European Union of 10.2.1994 (OJ C 61, 28.2.1994, p. 155).

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5.
Points  out  that  the  principle  of  the  rule  of  law  entails  judicial  review  for  matters  relating  to
fundamental  freedoms  and  individual  rights  and  considers  the  use  in  the  Treaty  of  safeguard  clauses
designed to restrict review by the Court of Justice to be unacceptable;

6.

− 

− 

Considers that the Commission should, as a matter of priority, present the proposals on:

the setting-up of an authority to monitor the treatment of personal data in the work of the institutions
(Article 213b − future Article 286 − of the EC Treaty);

the  legal  means  to  be  used  to  ensure  that  the  activities  of  the  institutions  under  the  third  pillar
guarantee the same level of protection in the various Member States;

−  access to the documents of the institutions (Article 191a − future Article 255 − of the EC Treaty);

Considers urgent the presentation by the Commission of the overall plan and of practical measures
7.
necessary to combat all discrimination on grounds of sex, race or ethnic origin, religion or conviction,
disability, age or sexual orientation and to combat exclusion (Articles 6a and 117 − future Articles 13 and
136 − of the EC Treaty);

Recalls  the  need  for  greater  consistency  between  the  external  and  internal  actions  of  the  Union,
8.
which should be attained by drawing up common positions on the occasion of negotiations in international
fora or in relations with third countries;

II.  Tackling the questions of the free movement of persons, immigration and visas

9.
Reaffirms that, by virtue of Article 7a of the EC Treaty, free movement of persons is a Community
matter, that it ought to have been fully implemented on 1 January 1993 and that it applies to every person
legally resident in the Union;

10.
Urges the Commission, in the light of the work programme contained in the Treaty (Articles 62
and 63) and the discussions which have already taken place in the Council, and of the texts adopted by
Parliament, to submit to the Tampere summit a new strategy and to perform a thorough analysis of the
acquis in this field and, if necessary, make proposals for revision and rationalisation of the 70 or so items
of Community legislation currently in force in this field; considers, moreover, that it is necessary to take
into account the important link with the enlargement process, the pre-accession strategy and the condition
imposed on the applicant countries that they should apply the whole of the acquis in the field of justice and
home affairs;

11.

Reaffirms the urgent need for a genuinely European approach, reappraising:

− 

the free movement of persons,

−  visa policy (harmonising the list of third countries, improving the uniform format, and the issuing

procedures),

− 

− 

immigration policy, laying down clear conditions for entry and residence (especially in respect of
family reunion),

the definition of a statute for non-Community nationals legally residing in the Union and positive
action to support their integration,

−  effective  action  against  illegal  immigration,  targeting  criminal  networks  organising  trafficking  in

human beings,

−  establishment  of  a  legal  framework  to  enable  the  Union  to  cope  effectively  with  a  mass  influx  of
displaced persons by creating a harmonised temporary protection regime, including the establishment
of a system of humanitarian and financial solidarity between the Member States,

−  approximation of the conditions for receiving applicants for asylum and of legislation on procedures

for conferring refugee status and forms of supplementary protection;

Considers that, in order to help formulate such an approach, the forthcoming Intergovernmental

12.
Conference should speed up the process of making these areas subject to codecision;

13.
Points out that the implementation of freedom of movement for persons within the Union requires
that the Schengen acquis be incorporated beforehand, partly in the first pillar and partly in the third pillar;
considers that the acquis must therefore be subject to a thoroughgoing appraisal; Parliament can in no way
be bound by the decision on the classification of the acquis to be taken by the Council before the entry into
force of the Treaty of Amsterdam under an exceptional procedure (unanimity in Council, no Commission
initiative and no consultation of the European Parliament);

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Tuesday 13 April 1999

14.
Calls on the Council to adopt without delay measures with a view to ensuring the absence of any
controls on persons when crossing internal borders in accordance with Article 73j (future Article 62) of the
EC Treaty;

III. Towards the European area of justice

15.
Takes the view that the area of freedom, security and justice should be given practical form before
the forthcoming enlargement of the Union and therefore calls on the Council and Commission to adopt the
necessary measures without delay;

16.
Believes that in general the objective of the Union should be to simplify the relationship the citizen
and the business sector have with the judicial system and to make the judicial system more effective within
an integrated European area, particularly by encouraging the emergence of a common judicial culture;
believes  that  the  process  of  creating  a  European  legal  and  judicial  area  must  be  accompanied  by  full
parliamentary and judicial control (1);

Points out that everyone is entitled to be heard by an independent and impartial judge and to a fair
17.
trial governed by the principle of presumption of innocence; stresses the importance of respect for the
principles of equal access to justice, protection of the rights of the defence, and equal terms in both civil
and criminal proceedings;

Points out that the social reintegration of those who have paid their debt to society is a fundamental
18.
principle of European criminal law; stresses, furthermore, that the rights of victims of crime and terrorism
must be protected and that an adequate system of compensation for such victims must be guaranteed;

Considers  that  the  granting  of  judicial  assistance  free  of  charge  in  cases  of  difficulty  must  be

19.
guaranteed in all judicial proceedings;

Improving  the  everyday  life  of  the  citizens  of  Europe  by  strengthening  judicial  cooperation  in  civil
matters

20.
Considers it a matter of urgency, as called for in the Avignon Declaration, to tackle the problems
affecting the life of the individual citizen by adopting by Community act the Convention of Brussels II on
matrimonial  matters  and  the  revision  of  the  Brussels  and  Lugano  Conventions  on  the  recognition  of
judgments in commercial matters and by facilitating the settlement of cross-border disputes (by making it
possible immediately to identify the law applicable), and access to justice;

21.
Considers,  moreover,  that  arrangements  should  be  made  to  ensure  that  the  recognition  and
enforcement of decisions between Member States is virtually automatic and that, in this context, there is
an  urgent  and  vital  need  to  promote  the  compatibility  of  the  rules  applicable  in  the  Member  States
concerning civil procedure, the conflict of laws and of jurisdiction (Article 73m − future Article 65 − of
the  EC  Treaty)  and  to  step  up  administrative  cooperation  between  civil-law  services  by  establishing
specialist networks (Eurojust) at European level, by exchanging officials or by appointing liaison officers;

22.
Considers that the principle laid down in Article K.4 (future Article 32) of the Treaty on European
Union with regard to mutual judicial assistance whereby the Council is to determine ‘the conditions and
limitations under which’ judges and investigating and prosecuting officials may operate in the territory of
another Member State in liaison and in agreement with the authorities of that State could be applied more
in the civil field, where the degree of integration should reflect the fact that this legislation is now of a
Community nature;

23.
Calls on the Commission to take full advantage of the fresh possibilities offered by Article 73m
(future Article 65) of the EC Treaty in order to draw up its own body of rules in the area of civil law and to
promote the compatibility of civil procedures;

Defining the Union’s role on crime and punishment

24.
Attaches fundamental importance to genuine crime prevention by establishing effective cooper-
ation between national police services and Europol; believes that when the Treaty of Amsterdam has come

(1)  See  resolution  of  13  March  1998  on  judicial  cooperation  in  criminal  matters  in  the  European  Union,  paragraph  8  (OJ  C104,

6.4.1998, p. 267).

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into force, the Europol Convention must be updated to distinguish more clearly between its operations on
behalf of a single Member State and those which are of ‘European interest’ in that they involve several
Member States or are conducted on behalf of a Union institution; in the performance of the latter Europol
should  act  as  a  European  agency  empowered  to  carry  out  operational  duties  under  the  supervision  of
investigating and prosecuting officials (linked through the Eurojust European mutual assistance network)
and under the supervision of the European Parliament and the Court of Justice (1);

Draws attention, moreover, to the mass of different legal provisions (for example, in the sphere of
25.
protection of personal data) governing the work of Europol and the attendant risk that fundamental rights
may be put in jeopardy; believes, therefore, that appropriate framework decisions must be adopted in order
to  guarantee  the  equivalence  of  the  provisions  applicable  under  the  first  pillar,  the  third  pillar  or  the
Europol Convention;

26.
Reaffirms its support for the principle laid down in Article K.4 (future Article 32) of the Treaty on
European  Union  on  mutual  judicial  assistance  according  to  which  the  Council  ‘shall  lay  down  the
conditions and limitations under which’ judges and investigating and prosecuting officials may operate in
the territory of another Member State in liaison and in agreement with the authorities of that State; in the
same context, considers it reasonable to further expand European judicial networks, promote exchanges of
investigating  and  prosecuting  officials  and,  in  the  case  of  the  defence  of  the  financial  interests  of  the
Community (the legal basis being Article 209a − future Article 280 − of the EC Treaty), ultimately to
institute a ‘European public prosecutor’ who would bring legal proceedings (Corpus Juris);

27.
Once  again  expresses  its  wish  for  greater  compatibility  of  criminal  proceedings  in  the  Member
States, the abolition of the dual criminality requirement for extradition, and for the introduction of direct
detention for minor offences; shares the wish expressed by some Member States for mutual recognition of
judgements and measures adopted by the courts of the Member States;

Considers it to be vital for the Union to draw up a strategy to support and coordinate the actions of

28.
the Member States as regards:

(a)  crimes against humanity or crimes linked to terrorist activity where the persons concerned are sought
by several Member States, and recognition of the right of asylum or compliance with requests for
extradition,  not  only  through  application  of  legislation  which  forms  part  of  the  third  pillar  acquis
(the Convention  of  10  March  1995  relating  to  a  simplified  procedure  for  extradition  between  the
Member States of the European Union, the Convention of 27 September 1996 relating to extradition
between  the  Member  States  of  the  European  Union,  the  European  Extradition  Convention  of  13
December 1957), but also by supporting international institutions operating in these fields, by setting
up new bodies and by recourse to the appropriate legal instruments;

(b)  relations  with  the  International  Criminal  Court,  the  extraordinary  tribunals  (Yugoslavia,  Rwanda,

Lockerbie ...) and the European Court of Human Rights;

(c)  crimes  with  repercussions  beyond  the  territory  of  one  Member  State  and  for  which  measures
establishing minimum rules relating to the constituent elements of criminal offences and the penalties
applicable should be contemplated as a matter of urgency pursuant to future Article 31 of the Treaty
on European Union; this might apply to offences

−  which affect the integrity/health of individuals (e.g. terrorism, trafficking in persons, violation of
bioethical principles, child pornography, racism and xenophobia, and drugs trafficking);

−  which affect the European economy (e.g. forging of the euro, violation of the Union’s financial

interests, international money laundering, corruption and environmental offences);

−  which  are  committed  using  means  which  necessarily  transcend  national  boundaries  (e.g.  the

Internet);

−  which involve European citizens from more than one Member State (e.g. organised crime);

−  which involve organised crime;

(1)  See resolution of the European Parliament on the progress made in 1998 in the implementation of cooperation in the fields of
justice and home affairs pursuant to Title VI of the Treaty on European Union, Minutes of 14.1.1999 (Part II, Item 13(a)).

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IV.  Changing  working  methods  and  relations  between  the  institutions  and  with  society  as  from  the

transitional stage

Considers that the realisation of an area of freedom, security and justice is a task which should be
29.
carried  out  in  close  cooperation  between  Member  States  and  the  European  institutions,  under  a  joint
programme;  appropriate  arrangements  to  ensure  participation  by  the  institutional  bodies  concerned  at
European  and  national  level  and  by  representatives  of  civil  society  in  planning  and  implementing  the
measures laid down in the action plan should be provided for, bearing in mind the following principles:

− 

this strategy, the main elements of which should be presented at Tampere, should be based on a White
Paper from the Commission (which would at the same time be a proposal for a programme for the
European Parliament’s term of office) and on specialised strategic documents to be drawn up by the
Presidency of the Council and/or by the Commission for each of the fields relating to the realisation of
the area of freedom, security and justice; the action plan derived from it would encompass the existing
multiannual  programmes  (such  as  the  programme  for  combating  organised  crime  or  drugs)  in  a
context which takes account simultaneously of the inseparable requirements of freedom, security and
justice and would highlight the policy which the Union intends to pursue in the five years ahead with
regard to fundamental rights and measures to prevent all forms of discrimination (Article 6a − future
Article 13 − of the EC Treaty);

− 

the options set forth in it should be widely debated, including by the European Parliament, national
parliaments and civil society;

30.

Considers that in the same way it is necessary to:

−  ensure  that  the  European  public  are  optimally  informed  and  establish  legal  assistance  services

attached to all the institutions of the Union (particularly at local and regional level);

−  make  it  compulsory  for  judges,  lawyers  and  public  servants  to  receive  training  concerning

fundamental rights, the European legal system and European comparative law;

31.

− 

− 

Considers that as of now, during the transitional stage, as regards the Union acquis, it is desirable:

in the case of the fields transferred to the first pillar, to review the form and content of proposals not
yet adopted and instruments not yet in force (particularly agreements, joint actions or any other act
entailing commitments for the Member States), verifying their legitimacy;

in  the  case  of  acts  adopted  or  in  the  course  of  being  adopted  under  the  third  pillar,  to  check  their
legitimacy  in  relation  to  the  new  constitutional  framework,  involving  the  Court  of  Justice  if
appropriate;

− 

in the case of the agreements whose ratification process has not yet begun or has concerned only a
minority of Member States, to transform them into ‘framework decisions’;

32.

Considers that as regards the European institutions:

−  when forming the new Commission, matters relating to fundamental rights and the implementation of
the area of freedom, security and justice should be entrusted to a single Commissioner, who should
work closely with the President of the Commission;

− 

− 

− 

the  Justice  Council  should  establish  a  special  link  with  the  General  Affairs  Council,  and  the
preparatory bodies should be more closely integrated with the bodies operating in Community fields;

the terms of reference of the Monitoring Centre for Racism and Xenophobia should be extended to all
issues dealt with in the future ‘European Charter’ and to the drafting of the annual report on respect for
fundamental rights in the Union referred to in the Declaration of 10 December 1998;

the Commission should reorganise its services in order to prepare legislative work in these new fields
adequately, provide assistance to Member States and constantly monitor the implementation of the
programme;

Considers that substantial progress must be made in the field of the area of freedom, security and
33.
justice before the future enlargement of the Union; urges the Council and the Commission to adopt the
necessary measures as soon as possible;

Instructs  its  President  to  forward  this  resolution  to  the  Commission,  the  Council  and  the

34.
governments and parliaments of the Member States.